America News Analysis

Justice Brett Kavanaugh’s views on abortion are still shrouded in mystery

On the Monday of the second week of December, Justice Kavanaugh and Chief Justice Roberts joined the liberals on the court in declining to take up two cases involving the use of Medicaid funds for non-abortion health services, Andersen v Planned Parenthood and Gee v Planned Parenthood. Kevin Daley of the Daily Caller gave a pithy description of the situation’s importance, saying that it “indicates that Justice Brett Kavanaugh sided with the high court’s liberal wing to deny review of a lower court decision that favoured the nation’s largest abortion provider”.

Kansas and Louisiana revoked Planned Parenthood’s status as a Medicaid provider after the 2014 sting by pro-life activists that showed PP employees discussing the sale of foetal tissue. The lower court ruling which was left to stand sets a standard that a patient has a right to seek out any qualified and willing provider using Medicaid funds.

According to Planned Parenthood itself, about 60 per cent of its patients access its services through Medicaid. As a proportion of its budget, it’s probably somewhat smaller, because while 15 states do allow Medicaid funds to go toward an abortion, most of the services paid for by Medicaid are cheaper than that sort of intense surgery. But if states were able to revoke Planned Parenthood’s provider status freely, it would still represent a significant threat to its bottom line.

Commentators have suggested that one reason for declining to take the case might be that Kavanaugh wishes to avoid taking too many controversial positions in the wake of his rocky confirmation this fall. The thinking goes that if the court, as it swings rightward, does too many things that upset progressives, that could pose problems for the court’s legitimacy. The institutional prestige of the court is known to greatly concern Chief Justice Roberts, who also declined to take up the cases.

Yet Justice Clarence Thomas suggested that the Court’s unwillingness to address tough cases will also damage its credibility. “So what explains the Court’s refusal to do its job here?” Thomas wrote in his opposing opinion. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood’.”

For what it’s worth, progressives like pro-abortion writer Irin Carmon take the December decision (or non-decision) as a rare bit of positive news in a political moment that leaves them with little to feel hopeful about. “An order that elicits a dyspeptic dissent from Thomas,” she writes, “and accusing his colleagues of cowardice has got to be a good one for liberal policy priorities, right?”

By the same token, the decision may test the patience of voters whose provisional loyalty to the GOP rests on their commitment to appointing judges who will end abortion. If progressives respond to decisions they don’t like from a duly appointed court by denying it legitimacy, then that is a problem with progressives. It is not an independent judiciary that allows itself to be blackmailed in this way.

On the other hand, Medicaid rules vary on a state by state basis, and it may be a mistake for pro-lifers to read too much into this. As a matter of law, the states’ decision to defund Planned Parenthood was not directly about abortion rights at all, though the involvement of Planned Parenthood made abortion an inescapable subtext. Moreover, one can imagine a circumstance down the line, in an unfriendly administration, where a state might find some pretext to delist, say, a Catholic hospital from being a Medicare provider. The standard set by the lower court could endanger institutions that Catholics and pro-lifers hold dear.

Hence Tony Perkins of the Family Research Council counselled social conservatives not to read too much into the case. “This is one decision in a very young Supreme Court career. [Kavanaugh has] reserved judgment here, and until we see more of his work, we should too,” Perkins said.

Elliot Mincberg of People for the American Way (founded by progressives in the 1980 to counter the growing power of the Christian right) wrote that progressives should pay more attention to what Kavanaugh does do than what he declines to do, noting that on the same day the court declined to take up the two Planned Parenthood cases, Kavanaugh voted to revisit another important case involving deference to executive agencies.

But one Republican does see Kavanaugh as siding with Planned Parenthood: Senator Susan Collins, the pro-abortion Republican from Maine whose vote clinched Kavanaugh’s seat on the bench. During the confirmation, Collins said that she was persuaded that he would not move to overturn Roe v Wade. She told reporters that she felt “vindication” at Kavanaugh’s recent position.

There are reasons to lament the alignment of pro-lifers and Catholics with the Republican Party. At the moment, it’s hard to look at their bargain with Trump and say it was a mistake, but the time will come again that it looks like a bad deal for the traditionalists. If Kavanaugh continues to be a disappointment, that time might come sooner rather than later.