(National Sentinel) Fact Check: On Monday, conservative media excoriated Justice Brett Kavanaugh for allegedly refusing to join three other Supreme Court constitutionalists in agreeing to hear a case involving Medicaid funding for Planned Parenthood.

As the Washington Examiner noted, “the basic gist” behind the story “is that lower court rulings prevented Louisiana and Kansas from blocking abortion provider Planned Parenthood from participating in Medicaid.”

The Daily Caller, one of the critical conservative outlets, noted further:

Monday’s cases arose when Republican state leaders in Louisiana and Kansas stripped Planned Parenthood of state Medicaid funds after a pro-life advocacy group presented evidence that the abortion-provider was harvesting and selling fetal materials. Planned Parenthood contests the accuracy of these claims.

Planned Parenthood and several unnamed female patients challenged the states’ move in federal court. The legal question in Monday’s cases was whether Medicaid recipients can challenge the disqualification of a provider under the Medicaid law. As such, it did not touch on abortion directly.

Only three justices — Samuel Alito, Clarence Thomas, and Neil Gorsuch — opted to hear the case. It takes four justices to accept cases before the entire SCOTUS hears them.

For his part, Thomas excoriated colleagues who did not want to hear the case, which he suspected had more to do with the fact that Planned Parenthood, the nation’s largest abortion provider, was involved and the high court doesn’t want to be seen as weighing in on that issue.

“So what explains the Court’s refusal to do its job here?” Thomas wrote. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion.

“It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider,” he continued.

“But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.”

Thomas’ understandable frustrations aside, is Kavanaugh guilty of abandoning conservative constitutionalists over the issue of abortion?


Shortly after the Washington Examiner published its own critical story, editors added this update:

One Supreme Court watcher writes: “As I recall the history of this case, the first vote for cert [i.e. certiorari — granting a hearing] would have taken place before Kavanaugh’s appointment — and Roberts would have had to refuse to vote for cert then as it only takes four votes to accept the case. 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. Less defensible is Roberts apparent concern about the atmospherics of taking a case with ‘Planned Parenthood’ in the title.”

Yes, less defensible is Roberts’ behavior, Justice “Obamacare is a tax” Roberts, by the way.

At some point Kavanaugh may issue a ruling or take a side that conservative constitutionalists will dislike — it’s bound to happen.

But this case isn’t one of those occasions.

After the man’s bitter confirmation hearings which involved heaps of Democrat chicanery and death threats to his family, we’re fully prepared to cut the man some slack. He’s not yet been a justice for three months.

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