Justice Kavanaugh Gets His First Test on Abortion: Can States Defund Planned Parenthood?

By Rachel N. Busick, J.D.
Life News

When Supreme Court Justices meet in conference Friday, Oct. 12, two states, Kansas and Louisiana, will eagerly be waiting to see whether the court will hear two abortion-related cases.

The cases were originally scheduled for the justices’ first conference of the term at the end of September, but have been rescheduled twice so far, presumably to wait for a ninth justice. With the addition of Justice Brett Kavanaugh on Monday, the Court may now have the fourth vote needed to take them up.

The cases are Andersen v. Planned Parenthood of Kansas and Mid-Missouri and Gee v. Planned Parenthood of Gulf Coast. They both ask the same question: Does the Medicaid Act allow individual patients to sue their state in federal court to ensure that they can receive Medicaid benefits from their preferred provider of choice, in these cases, Planned Parenthood? The answer to that question will determine whether states are forced to fund abortion providers under their state Medicaid programs.

These cases represent the first chance Kavanaugh will have to weigh in on an issue affecting abortion. How the Supreme Court handles these cases with a 5-4 conservative majority will be a key indicator of how the new Court will engage on issues relating to abortion, including perhaps even whether the court might be open to revisiting Roe v. Wade in the future.

It is well-established that states, as well as the federal government, are not required to fund elective abortions. But it is far from settled whether states must fund abortion providers for other services that they provide.

Over the last several years, Planned Parenthood has come under increased public scrutiny and criticism for its dubious business practices. Undercover videos appeared to show Planned Parenthood officials haggling over the body parts of aborted fetuses, and there have been multiple reports alleging massive fraud, waste, and abuse and unsafe practices of Planned Parenthood affiliates. As a result, the defunding of Planned Parenthood and other abortion providers became a priority for many states.

The federal government has also gotten in on the act. For example, earlier this year the U.S. Department of Health and Human Services proposed a rule that to receive Title X family planning funds there must be clear financial and physical separation between a Title X funded project and abortion services. And just last week, the full 6th Circuit Court of Appeals heard oral arguments on whether Ohio can defund abortion providers under six of its federally funded health programs.

Perhaps most notably, there has been a wave of states seeking to defund abortion providers under their state Medicaid programs. HHS is currently reviewing proposals from Texas, Tennessee, and South Carolina, while the defunding decisions by other states — including Kansas and Louisiana — have been challenged in federal court by Planned Parenthood and some of its patients. Federal appeals courts have split on the issue.

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