Early Failure: Kavanaugh Sides with Medicaid and Planned Parenthood, and Against the Constitution

P. Gardner Goldsmith | December 11, 2018
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Clarence Thomas is justifiably frustrated with Brett Kavanaugh and the majority in the Supreme Court of the United States.

He’s justified because on Monday, Kavanaugh joined Chief Justice John Roberts and the four overt leftists on the bench to deny a hearing to a case that could have not only drawn attention to the issue of government funding of abortion, but also to the strict wording of the Fourteenth Amendment’s “Equal Protection” mandate, and to the fallacious concept that Medicaid is constitutional at all.

As Kevin Daley reports for The Daily Caller, multiple states recently moved to remove Planned Parenthood from the service providers included in their state-managed Medicaid systems. As expected, this has led to conflict between those who would force others to pay for what they think is important, and people who believe in a bit more freedom.

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.

Of course, as noxious as the possibility is that Planned Parenthood could be harvesting and selling fetal parts, the question of whether taxpayers should be forced to pay for Medicaid that funds Planned Parenthood is what’s really at issue here.

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.

Kavanaugh, Roberts, and the four overtly collectivist, “implied powers”-loving Justices declined to hear the case.

The 5th U.S. Circuit Court of Appeals sided with Planned Parenthood on that question in June 2017, prompting an appeal to the Supreme Court. That ruling is left in place now that the justices have refused to take the case.

And Justice Thomas, along with Justice Alito and Justice Gorsuch, were in the minority who believed the SCOTUS should hear the case.

Said Justice Thomas.

So, what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.' 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.

What is the claimed “law” under which the US Government is supposed to function? The Constitution. Therefore, upon what law applies? The Constitution.

And what enumerated power exists for Congress to take taxpayer money to include an abortion provider as part of its Medicaid plan?

There is no such constitutional power.

More to the point, regardless of the touchy issue of abortion hiding within Medicaid, what enumerated power exists for Congress to take taxpayer money to create the Medicaid system in the first place -- for any government-run health system?

There is no such constitutional power.

If politicians and supporters of Planned Parenthood want to fund the organization, they can send their own checks, not force others who might not see the organization as ethically sound to have to pay for it.

Likewise, if anyone wants to give indigent people (and Medicaid is no longer for just the poorest of the poor in the US) health care, they can do so themselves and show that they care, not force their neighbors to do so (which immediately negates the idea that anyone can claim he or she cares, because government spending is done through force and threats of arrest for non-payment).

And, finally, when it comes to whether state governments might want to double-check whether they include Planned Parenthood in their roster of Medicaid-associated (ie funded) “healthcare providers”, these state politicians might want to refer to the clear wording of the Fourteenth Amendment’s “Equal Protection” mandate, which states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And that brings us to the final question.

Is a fetus a human being?

This can be answered without reliance on religion, and with strict adherence to expressible facts.

First. Is a fetus human?

Yes. Upon conception, the fetus has distinct DNA from both parents. It is an individual with human DNA designed to grow based on natural laws.

Second. Is the fetus “being”?

Yes. Upon conception, the mechanism of life begins. There is no denying this. The conceived fetus is on that continuum that sees cell reproduction for the purpose of growth that is life itself.

So the fundamental question is whether or not all human beings are equally protected by the laws prohibiting and punishing murder.

This could be a question that the Supreme Court could take up with a case such as this, but, clearly, the majority does not want to do so.

One can only speculate why they would accept posts on this bench that engages in “judicial review” without being willing to focus on the fundamentals that are supposedly expressed by the very document that gives them their lifetime positions.

But this is certain, one cannot trust the justices to conform in any way to the Constitution, whatever the reason may be.

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