Two states, Kansas and Louisiana, are awaiting votes on their abortion-related cases by the Supreme Court justices in conference Friday. The cases were originally scheduled for the justices’ first conference of the term at the end of September.
The cases have been rescheduled twice so far, presumably to wait for a ninth justice. With the addition of Justice Brett Kavanaugh, the court may now have the fourth vote needed to take the cases.
The cases — Andersen v. Planned Parenthood of Kansas and Mid Missouri and Gee v. Planned Parenthood of Gulf Coast — 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 are the first chance Kavanaugh will have to weigh in as a justice on an issue impacting abortion. 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.
In recent years, Planned Parenthood has come under increased public scrutiny and criticism for its dubious business practices after undercover videos appeared to show Planned Parenthood officials haggling over the body parts of aborted fetuses and multiple reports alleging massive fraud, waste, and abuse and unsafe practices of Planned Parenthood affiliates. In the wake of these actions and others, defunding Planned Parenthood and other abortion providers became a priority for the federal government and many states.
For example, earlier this year the U.S. Department of Health and Human Services (HHS) 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 Sixth Circuit Court of Appeals heard oral argument on whether Ohio can defund abortion providers under six of its 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 — …