This piece was originally published in The New York Times.
When the Supreme Court declined on Monday to hear cases brought by Louisiana and Kansas attempting to exclude Planned Parenthood and other abortion providers from their Medicaid programs, legal soothsayers were out in full force opining about what it means for the future of abortion rights under the newly constituted court.
The decision drew a dissent from three conservative justices, Clarence Thomas, Neil Gorsuch and Samuel Alito, who suggested that the court was ducking the cases because they involved Planned Parenthood and touched on abortion. But, intriguingly, the court’s two other conservatives, Chief Justice John Roberts Jr. and the court’s latest member, Brett Kavanaugh, sided with the court’s liberals in rejecting the case.
What are we to make of it?
It’s not easy to read the tea leaves here because the cases didn’t pose a direct challenge to the constitutionality of abortion restrictions. Instead, they centered on whether those states could exclude Planned Parenthood from providing contraception and other health services in the Medicaid program. Those states object to Planned Parenthood providing access to abortion outside Medicaid, which does not cover the procedure. Had the court accepted the states’ arguments, tens of thousands of indigent women could have lost the health care they receive from the group.
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