Implications of Refusal of Planned Parenthood Cases

At his confirmation hearings to succeed Kennedy, Brett Kavanaugh was pressed over and over again about his views on the landmark case. It's settled as a precedent of the Supreme Court entitled the Respect under Principles of Starry Decisis, and one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past years, but precedents are reversed at

the Supreme Court all the time. In fact, Justice year, the Justice is overturned a forty year old landmark ruling on union fees. So many pro choice advocates were encouraged when now Justice Kavanaugh cast the deciding vote not to hear the appeals of two cases from states that want to cut off Medicaid payments to Planned Parenthood, effectively giving Planned Parenthood a win. But were they too quick to draw any conclusions? Joining me is Stephen Vladdock, a constitutional

law professor at the University of Texas Law School. So it takes four justices for the Court to agree to hear a case, and these cases got only three votes from conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. What does it tell you that the newest conservative Justice, Brett Kavanaugh and the Chief Justice John Roberts voted not to take the case. Well, I think it's important to

put this in the contest. I mean, the actual question presented in these two cases, which come from really three different states, from Missouri, Kansas, and Louisiana, is whether these Medicaid providers Planned Parenthood and these other healthcare providers are allowed to even bring a lawsuit in the first place, challenging the fact that the states have withdrawn Medicaid funding for non abortion related services solely on the ground that

these providers also performed non Medicaid funded abortion services. So the actual legal issue is about whether there's a private right of action, and the reason why that's important, June is because both Chief Justice Roberts and Justice Kavanaugh have been on the record over and over again as being pretty skeptical of private rights of action in any context

in which Congress has not expressly provided for one. That is to say, they should have been pretty sympathetic to the petitions in these cases, which claim that the lower course had aired allowing planned Parenthood and the other plaintiffs to sue. So the fact that they denied certain I think in this case is not in any way a reflection of how they feel about the merit. I don't think that they've all of a sudden woken up and

changed their minds about private rights of action. I think it's really much more interesting as a sign that they just didn't want these cases, and that for really I think political and optical reasons. Even though they probably thought the lower court rulings in these cases were incorrect from the perspective of what's good for the Supreme Court as an institution, they both thought it was better for the

Court to sit this one out. So our Lettle analysts mistaken when they take that extra step and say this means that those two justices are not ready to confront controversial abortion cases. Yeah, I think we have to be careful. Like I do think we can read something important into the fact that neither Chief Justice Roberts nor Justice Kavanaugh voted to grant these cases. I'm not sure that's what

I would take away. That's say, I don't know that this means that if the right kind of abortion related case were to come to the Supreme Court, they wouldn't grant review. I think it was that in this specific context, they didn't see any need for the Court to jump

into this. And I think the reason why that's so interesting to me is because they probably figured out that if the Court had granted these cases, they were going to divide five to four on the marriage and they were probably gonna divide five to four along partisan lines. And so I don't know that this is a statement about abortion cases nearly as much as it's a statement that for these two justices, at least for now, where it's possible to avoid visible politically charged cases, they're likely

going to split the court along partisan ideological lines. They're inclined to do so that basically, this is about keeping their heads down and not about abortion, per se. Steve, let's talk about the dissent Justice Thomas at the descent, and he speculated about the motives of the six justices who turned the cases down. He concluded that it was because Planned Parenthood was involved. What's your take on his conclusion. I think it's a little bit um how should I

put this? I think that's a little bit unfair on Justice Thomas's part to level all of the blame for that with the justices who voted to deny certain I mean, these cases would not exist if these plaintiffs weren't named Planned Parenthood. That is to say, this issue has only arisen because you know, these states Missouri, Kansas, Louisiana and a handful of others have singled out Planned Parenthood and other providers of abortion related services for really discriminatory treatment

in their non abortion service capacities. And so I guess you know, when the whole case starts because the planiffs are Planned Parenthood. I'm not sure it's really fair for Justice Thomas to point the finger at his colleagues for basic keeping their heads down because the case about Planned Parenthood. This case would never have happened if it weren't about the very optics that Justice Thomas is suggesting his colleagues

are trying to avoid. Republican Senator Susan Collins, who of course was criticized for voting for Kavanaugh, said she felt vindicated by Kavanaugh's refusal to take these cases because it shows that he's impartial and wasn't holding anything against planned parenthood for opposing his confirmation. Is she right? No, I'm not sure she's wrong, But you know, I certainly don't think that this proves anything about that controversial series of

exchanges during the confirmation process. I think the real question remains whether the new conservative majority on the Court, in cases that properly presenting the question and this was not one of them, um are going to uphold state laws that increasingly chip away at the right to choose that the Court recognized in oh And I just don't know how anyone could stay with any degree of certainty based upon the fact that Justice Havanan Justice Roberts voted to

deny certain in these two cases that even though they have abortion in the background, are not actually about abortion, that that vindicates any previously held notion about how they're going to rule if and when cases that really are a much more direct challenge to row into casey come back before the court, Steve, Can you read anything into the fact that the justices deferred acting on these appeals for months, they kept on the Court's list through nine

weekly conferences. Were the conservative justices looking for a fourth vote? Yeah? I mean, I think there's no question that any time you have a transition at the Supreme Court and you have a pending petition that has three votes in favor, as these clearly did, you're going to see that kind of awkward scheduling maneuver where the cases kept around for a while to see if you know, the new justice wants to become the fourth vote, or if someone else

wants to change their mind. This is not that unusual in the you know, in the sort of weird context of a new justice, because you know, when you know there are three votes for certain, and you know that there's a new justice coming along, I don't think it's unrealistic on the part of those three justices to to try to figure out if they can find a fourth Can women's rights advocates take any comfort from this denial of sert. Is it at least a signal that abortion rights,

as controversial as they are, are safe for now. I don't think anyone should sort of think that this is a sign that the Court is staying out of abortion cases large I think it's a much more specific message from the Chief Justice and Justice Kavanaugh that at least where possible and at least in the short term, they're going to try to keep the Court out of any high profile dispute that looks like it's going to split the Court along partisan lines, and that that's not necessarily

abortion specific. That maybe we'll see some of that in the coming weeks and months as the Court starts ruling on some of the government's applications with regard to Dhaka and the transgender ban and the census case. I think the real caveat here is that this is almost certainly

a temporary arrangement. That you know, this is largely at least from the Chief's perspective, about diffusing some of the bad feeling that was left in I think in many folks minds after the Cavanat confirmation process, and I think it's only a matter of time before we are far enough removed from those headlines where the Court is gonna retreat to it's it's normal self engine frankly, where they're going to be cases that are screaming out for the

Court to intervene, either because there's an intractable division among the lower courts, or because the lower courts have called them to question a prior Supreme Court precedent, or because the lower courts have invalidated some state or federal law on grounds that are, you know, not really ones we

want to leave to the lower courts. Are people looking at John Roberts incorrectly as the next Justice Anthony Kennedy the swing vote on these issues, when in point of fact, he is a conservative and he has shown a tendency to, as you say, want to chip away at abortion rights. Yeah, you know, I think that the reality is that we ought to be able to distinguish between whether Chief Justice Roberts is going to become an increasingly moderate vote and

whether he's going to become the median vote. Um. I think there's no question that on the new Supreme Court, with this new alignment, in the cases that tend to divide the justices along partisan ideological lines, the Chief Justice is now the median, and so the justice who is most likely to crossover and join with the four progressives in cases raising these kinds of issues is the Chief. Now,

I think that's not sossarily true in all contests. I think there are some cases involving maybe libertarian interests where Justice Gorstch might be the fifth vote. But I wouldn't expect that that means that Chief Justice Roberts is going to change, or that he's going to somehow moderate his strongly held views. I just look, it means that the Court's gonna move to the place where now it's the chief whose views are really driving these alignments from these

coalitions as opposed to Justice Kennedy. That doesn't make the Chief more moderate, It just makes him more important. Thanks Steve. That's Steve Latti, a professor at the University of Texas Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg. Yeah,