In what could be called stunning given Justice Brett Kavanaugh’s reluctance to call Roe v. Wade settled law, he stood as the deciding vote to prevent a challenge to the funding of Planned Parenthood from even being considered by the Supreme Court.
In order to hear a case, four of the nine justices need to express their intent to bring the case before the Court. This is how the Court decides its docket. Chief Justice John Roberts and the liberal justices voted against hearing the case, and were joined by Kavanaugh. Justices Alito, Gorsuch and Thomas wanted to hear the case.
The three justices dissenting, who wished to hear the case, specifically stated that they believe the case was not brought before the court because of tangential implications regarding abortion.
“So what explains the Court’s refusal to do its job here?” wrote Thomas. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ ”
By refusing to hear the case the Supreme Court allows the ruling of the lower court — in this case the Fifth and Tenth Circuit Courts of Appeals who both found that states could not cut off all funding Planned Parenthood receives from Medicaid — to stand.
But Kavanaugh, who heavily cited the case Planned Parenthood v. Casey which established that access to abortion rights would need to not pose an undue burden in his confirmation hearings and who Senator Susan Collins (R-Maine) had extreme faith in as a defender of Planned Parenthood and abortion rights, came through for the organization.
If Roberts also joined the liberals, why is Kavanaugh the deciding vote? Well, this case came up for certiorari (the decision to hear a case, often abbeviated as “cert” in legal circles) before Kavanaugh’s confirmation and Roberts had already voted against hearing the case, meaning Kavanaugh walked in as the vote both sides needed.
“I assume Kavanaugh did not want to be the late-arriving fourth vote for cert, and that’s a reasonable call for a brand-new justice to make,” an unnamed Court analyst told the Washington Examiner.
It is also important to note that Justice Thomas is correct in asserting that, fundamentally, the only tie between this particular case and abortion rights is the name Planned Parenthood. While it may be a link that cannot be severed politically, the facts of the case the Court rejected were fundamentally about Medicaid and women’s health clinics in general, not about abortion.
Which leaves the broader question unsettled. Kavanaugh sided with women in the battle, but where will he side in the war?
States have already made broad moves to criminalize abortion in violation of Roe v. Wade, which is likely to rise through the court systems in the coming years culminating in a battle to overturn the right to abortion access.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.