U.S. Supreme Court
Posted October 26, 2018, 1:10 pm CDT
Several abortion cases working their way through the courts could end up before the U.S. Supreme Court, although it’s unclear whether the court will want to take up the politically charged issue at this time.
Currently before the court are cert petitions filed by Kansas and Louisiana that contend states should be allowed to deny Medicaid funds to Planned Parenthood, report the Los Angeles Times and USA Today.
Indiana, meanwhile, has filed a cert petition asking the Supreme Court to uphold a law requiring the burial of fetal remains and banning abortions based on gender, race or disability. NWI.com has coverage.
More cases “are headed inexorably toward the high court,” according to USA Today. At issue are limits on the timing, methods and providers of abortion.
Some cases involve abortion-clinic requirements similar to Texas restrictions struck down by the U.S. Supreme Court two years ago. Others involve laws that ban abortions after a certain time period or ban the most common method for second-trimester abortions.
Many experts don’t expect the Supreme Court to jump into the continuing controversy over abortion to overturn Roe v. Wade. Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center, predicts the court will take a less drastic approach to the right to abortion.
“The court is going to incrementally chip and chip and chip away at it,” Gorod told USA Today. “We’re in a totally new landscape.”
The Planned Parenthood cases concern a provision of the Medicaid Act that says participating states must allow eligible patients to go to any medical provider that is “qualified to perform” the required medical services.
Several courts have ruled the law prevents states from excluding funding for Planned Parenthood. But the 8th U.S. Circuit Court of Appeals at St. Louis created a circuit split when it ruled the law doesn’t create a private right of action for Medicaid recipients to enforce its provisions. That would mean enforcement is up to the U.S. secretary of Health and Human Services.
Federal appeals courts in the Louisiana and Kansas cases reached the opposite conclusion, finding there is a right to sue. In a split 7-7 vote in the Louisiana case, the 5th U.S. Circuit Court of Appeals at New Orleans declined to hear the case en banc.
The Louisiana cert petition noted the circuit split. “It cannot be the case,” the cert petition said, “that Medicaid recipients in some states have a private right of action when a state disqualifies a provider or makes a decision impacting a pool of qualified providers, while recipients in other states have no judicial remedy.”
The Kansas case is Andersen v. Planned Parenthood of Kansas and Mid-Missouri. The Louisiana case is Gee v. Planned Parenthood of Gulf Coast. The Indiana case is Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky.
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