This story was updated at 5:26 p.m. to include the comments of Planned Parenthood Great Plains' regional director of public policy.
The state of Kansas wants the United States Supreme Court to review a decision preventing it from terminating its Medicaid contract with Planned Parenthood.
In a petition filed on Thursday, it argues that a federal appeals court was wrong when it decided that Medicaid patients have a right to challenge a state’s termination of their Medicaid provider.
In February, the 10th U.S. Circuit Court of Appeals upheld a lower court ruling that Kansas improperly sought to end Planned Parenthood’s Medicaid funding. The appeals court said states may not cut off health care providers from Medicaid “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.”
The 10th Circuit joined four other federal appeals courts in upholding patients’ right to obtain health care from the qualified provider of their choosing. A sixth appeals court, however, has found that patients have no right to challenge a state's decision to end a provider's Medicaid funding.
The petition filed Thursday was brought by Jeff Anderson, the acting secretary of the Kansas Department of Health and Environment, and asks the court to reach the conclusion of the one dissenting circuit. That court was the 8th U.S. Circuit Court of Appeals, which has jurisdiction over federal courts in Missouri and six other states.
In a statement about the state's decision to pursue its case to the Supreme Court, Kansas Gov. Jeff Colyer said, “Kansas is a Pro-Life state and Kansans don’t want state dollars being used to support abortion providers. The medical needs of Kansas women will continue to be met by other providers in the Medicaid and KanCare network. We want the Supreme Court to weigh in on this issue and we look forward to the outcome.”
Dr. Brandon Hill, president and CEO Planned Parenthood Great Plains (PPGP), one of the two affiliates that sued the state, said he was confident that the 10th Circuit's decision would stand.
"Kansas should focus on increasing access to the basic health care services that we provide, not on stripping away that critical care from the most vulnerable Kansans," Hill said in a statement. "We are currently examining the state’s petition and reviewing all our legal options. The 10th Circuit’s ruling continues to stand, and PPGP’s doors will stay open as the provider of choice for many Kansans, including those covered by Medicaid. ”
The Kansas case has had a tortuous history. After the state informed PPGP and Planned Parenthood of the St. Louis Region and Southwest Missouri (PPSLR) in 2016 that it planned to end their Medicaid funding, the two affiliates, joined by three anonymous patients, sued to stop it.
Kansas cited three grounds for its decision: video evidence purporting to show that other Planned Parenthood affiliates entered into illegal agreements to procure fetal tissue after abortions; an alleged failure to comply with solid waste disposal inspections; and concerns over Medicaid claims submitted by other Planned Parenthood affiliates in neighboring states.
The highly edited video by an anti-abortion group was largely discredited and concerned the national Planned Parenthood organization, not the Kansas- and Missouri-based affiliates. But in his petition to the Supreme Court, Anderson argues that there are “substantial links” between the parent and its affiliates.
“Given the ties between the national and local offices, the Kansas Department of Health Environment (KDHE) viewed the 2014 videos as potential evidence of illegal activity by two providers, PPGP and PPSLR,” the petition states, referring to Planned Parenthood Great Plains and Planned Parenthood of the St. Louis Region and Southwest Missouri.
Rachel Sweet, regional director of public policy for Planned Parenthood Great Plains, called the insistence on bringing up the discredited videos "proof of the political motivations of this sustained attack on basic health care."
"The 10th Circuit's decision was correct and our doors will remain open to people with Medicaid," she said.
Whether the Supreme Court will now agree to take up the case is an open question. Four justices are needed to grant a petition for a writ of certiorari, the legal term for the petition Kansas filed on Thursday. But because Supreme Court Justice Neil Gorsuch was a judge on the 10th Circuit when the case was originally argued before that court, he may have to recuse himself.
In that case, four of the remaining eight justices would have to agree to grant the writ. That’s a possibility given that those eight are evenly split between conservative-leaning and liberal-leaning justices. But for Kansas to prevail, five of the eight would need to agree with Kansas’ argument and that’s a much less certain proposition.
Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.