The Supreme Court is weighing whether to hear its first abortion-related appeal with newly seated Justice Brett M. Kavanaugh.
The case involves whether conservative states may exclude Planned Parenthood clinics from the Medicaid program that provides healthcare for low-income women. Access to abortion is not directly at issue, but some states object to providing funds to any organization that performs them.
The justices met Friday to consider for a third time appeals in two Planned Parenthood cases and several others that may divide the court along ideological lines. In addition to the Medicaid cases, the justices are considering two cases that involve religion: One tests the constitutionality of a 40-foot cross that stands at a busy public intersection, while the other asks whether a high school football coach who is a devout Christian has a free-speech right to kneel in prayer on the field at the end of a game.
How the court deals with the appeals may give an early clue about whether Chief Justice John G. Roberts Jr., with a new, more solidly conservative majority, is ready to move the law to the right, or instead will seek to steer away from cases that produce sharp ideological splits.
The justices announced no action on these appeals Friday and could delay a decision for another week or more.
Cheering on the pending appeals are the top state attorneys from Republican-led states. On all three subjects — Planned Parenthood, the cross and the praying coach— the attorneys for 12 or more states joined briefs urging the justices to grant the appeals and reverse liberal rulings by lower courts.
At issue in the Medicaid cases involving Planned Parenthood is a long-standing legal conflict between a patient’s right to choose her medical provider and a state’s right to decide on the use of state subsidies.
Since 2012, lawmakers in Indiana, Arizona and other states have sought to “defund” Planned Parenthood because it is the largest provider of abortions, even though the group may not use federal funds, including Medicaid, to perform the procedures.
States have been blocked repeatedly by federal judges, however. In a series of rulings, judges cited a provision of the Medicaid Act which says eligible patients may go to any doctor’s office, hospital or clinic which is “qualified to perform” the required medical services. More than 2 million women across the nation go to Planned Parenthood clinics for birth control and general healthcare, including pregnancy tests and screening for breast and cervical cancer.
In the past, the Supreme Court has turned away appeals from Indiana and Arizona after they were blocked from denying Medicaid funds to Planned Parenthood. Pending before the justices now are similar appeals from Kansas and Louisiana. And this time, the states have a much better chance of winning a review.
“These cases have gone under the radar, but they are very significant,” said Steven Aden, legal director for Americans United for Life, an antiabortion group. “We think they have a pretty good shot this time. It would be a step in the right direction.”
He cited two reasons for his optimism. The 8th Circuit Court based in St. Louis broke with the other U.S. appeals courts and refused last year to block Arkansas’ ban on Medicaid funding for Planned Parenthood. Such a division among the lower courts often prompts the high court to take up an issue. And Kavanaugh is seen as more likely than former Justice Anthony M. Kennedy to join a conservative majority siding with the states.
Indiana and 14 other states joined in support of the Kansas appeal (Andersen vs. Planned Parenthood of Kansas). Their lawyers argued that because Medicaid is a spending program funded jointly by the states and the federal government, the states can decide who is a qualified provider.
“By the terms of the Medicaid Act federal-state contract, the states, not federal courts, are empowered to determine the qualifications for healthcare providers,” they said.
But a district judge in Kansas and the 10th Circuit Court in Denver agreed with Planned Parenthood that its patients have a right to choose its clinics for their healthcare, and said they may go to court to enforce this right. “We have no trouble concluding that Congress unambiguously intended to confer an individual right on Medicaid-eligible patients,” the appeals court said.
If the Supreme Court were to hear the case and rule for Kansas, it could reduce the healthcare options for hundreds of thousands of low-income women, said Alina Salganicoff, director of women’s health policy for the Kaiser Family Foundation. “Planned Parenthood is a critical part of the healthcare network. If they were excluded, our surveys show the system would be hard pressed to provide care for these women,” she said.
Such a ruling would not have much effect in California and other liberal states, since they would not likely deny funds to Planned Parenthood.
The Trump administration has also proposed barring the use of federal family-planning funds at facilities that also perform abortions. This program is much smaller in scope than Medicaid, but its impact would be felt nationwide.
Separately, religion may be heading back to the high court. For decades, the court has struggled to clarify whether religious symbols, such as a cross or the Ten Commandments, can be displayed on government property.
At issue now is a 40-foot cross that has stood for nearly a century as a World War I memorial at an intersection in Bladensburg, Md., just outside Washington. Last year, however, the 4th Circuit Court said that because the cross sits on public land and is maintained with public funds, it is unconstitutional. Its prominent public display “has the primary effect of endorsing religion,” the court said, and it thereby violates the 1st Amendment’s ban on “an establishment of religion.”
Lawyers for the American Legion and the Maryland-National Capital Park and Planning Commission filed separate appeals arguing the cross is primarily a war memorial and should be upheld (American Legion vs. American Humanist Assn.).
The case of football coach Joe Kennedy could affect the free-speech rights of teachers at school. In the past, the court has said teachers and other public employees have full free-speech rights as private citizens, but not when they are on the job.
Kennedy tested that line for several years. An assistant coach at Bremerton High School near Seattle, he knelt in prayer on the field after each game. School officials advised him he could pray privately, but he should not lead students in prayer or engage in “demonstrative religious activity readily observable” to the students and the public.
He refused and was not rehired in 2016. He sued and sought a 1st Amendment ruling that would “reinstate him as a football coach and allow him to kneel and pray on the 50-yard line immediately after high school football games.”
A federal judge and the 9th Circuit Court refused. “When Kennedy kneeled and prayed on the 50-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected,” the 9th Circuit said.
Former Solicitor General Paul Clement filed an appeal in Kennedy vs. Bremerton School District and urged the court to overrule the 9th Circuit’s decision “eliminating the 1st Amendment rights of teachers and coaches when they are on duty and near students.”