Justice Clarence Thomas (2015). Credit: Diego M. Radzinschi/ ALM

Updated at 11:45 a.m.

Three justices on Monday accused their colleagues of “abdicating” their judicial duty in declining to review two cases involving Planned Parenthood because of a “tenuous connection” to abortion.

Justice Clarence Thomas, joined by Justices Samuel Alito Jr. and Neil Gorsuch, dissented from the court’s decision not to review two states’ appeals of appellate court decisions that rejected their efforts to cut off funding for Planned Parenthood chapters.

“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote, noting the issue has nothing to do with abortion. “If anything, neutrally applying the law is all the more important when political issues are in the background.”


Read the Supreme Court’s order in Gee v. Planned Parenthood:


The two cases from Kansas and Louisiana—Andersen v. Planned Parenthood of Kansas & Mid-Missouri, and Gee v. Planned Parenthood of Gulf Coast—involve the Medicaid Act’s “qualified provider” provision and whether it creates a right to challenge a state’s decision that a provider is “not qualified” under state regulations.

Thomas argued that the issue was “important and recurring.” Because of the denial of review, he wrote, patients in different states have different rights to challenge their state’s provider decisions and states face the threat of a federal lawsuit whenever they change providers of medical services for Medicaid recipients.

The cases have as their background the release in 2015 of videos by an anti-abortion group allegedly showing Texas Planned Parenthood providers discussing the sale of fetal tissue. A number of states investigated the allegation and found no evidence to support the claim. But several states, including Louisiana, moved immediately to terminate their Medicaid provider agreements with Planned Parenthood affiliates.

In the Kansas case, the U.S. Court of Appeals for the Tenth Circuit, joining four other circuit courts, said in February that states may not eliminate Medicaid providers “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.” There is a conflict with the Eighth Circuit.

In March, when Kansas decided to file in the Supreme Court, Kansas Gov. Jeff Colyer said in a statement: “Kansas is a pro-life state and Kansans don’t want state dollars being used to support abortion providers.”

In the Louisiana case, the Fifth Circuit held that the state’s termination decision was unrelated to Planned Parenthood’s competence to provide services. If patients could not challenge a termination decision that is unrelated to a provider’s qualifications, the court said, the Medicaid Act’s “free choice of provider” provision “would be hollow.”

Kansas was represented by Patrick Strawbridge of Consovoy McCarthy Park. Louisiana is represented by its state solicitor general, Elizabeth Murrill. Carrie Flaxman and Diana Salgado were counsel of record for Planned Parenthood in the Supreme Court. Flaxman is deputy director of public policy litigation and law at Planned Parenthood Federation of America. Mayer Brown partner Nicole Saharsky was co-counsel to the Planned Parenthood chapters.

 


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This post was updated to include the names of counsel of record for Planned Parenthood in the two Supreme Court cases. Mayer Brown’s Nicole Saharsky was co-counsel.