(CN) – Slamming inaction by their colleagues, three conservative justices dissented Monday from the Supreme Court’s decision not to rule on whether patients can sue over a state pulling Medicaid funding from a specific provider like Planned Parenthood.
Medicaid gives patients the right to choose any qualified and willing provider for their health care. In January 2016, then-Kansas Governor Sam Brownback said he would cut off all Medicaid funding for Planned Parenthood.
That decision was made after the release of two heavily edited videos by the anti-abortion group Center for Medical Progress that made it appear as if Planned Parenthood executives sold fetal tissue for profit.
Brownback ordered an investigation of the organization’s Kansas facilities. Two state agencies investigated and found no wrongdoing by Planned Parenthood. Despite the results, the state went forward with termination of the group’s participation in the state’s Medicaid program.
A federal judge blocked that move, and the 10th Circuit in February upheld the injunction barring Kansas from cutting off Medicaid funding to Planned Parenthood.
The Denver-based appeals court ruled that states can’t terminate providers from Medicaid funding “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the health care it provides.”
Kansas appealed, asking the U.S. Supreme Court to decide whether Medicaid recipients have the right to file a lawsuit challenging a state’s disqualification of a Medicaid provider. Louisiana also appealed in a similar case.
On Monday, the nation’s highest court declined to take up the issue.
The decision not to answer the question spurred Justice Clarence Thomas to write a four-page dissent, joined by Justices Samuel Alito and Neil Gorsuch.
Thomas noted that the Eighth Circuit held last year that Medicaid recipients don’t have a right to sue states over the disqualification of certain providers, while five other circuits have ruled the opposite.
“This question is important and recurring. Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a state removes their doctor as a Medicaid provider or inadequately reimburses their provider,” the dissent states. “Because of this court’s inaction, patients in different states—even patients with the same providers—have different rights to challenge their state’s provider decisions.”
Thomas concluded by suggesting that the Supreme Court decided not to review the issue because the disputes involve Planned Parenthood, even though the cases aren’t about abortion rights.
“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background,” he wrote. “We are responsible for the confusion among the lower courts, and it is our job to fix it. I respectfully dissent from the court’s decision to deny certiorari.”
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