Tuesday, December 11, 2018

The US Supreme Court and Planned Parenthood

There was news yesterday that the U.S. Supreme Court failed to take up two cases involving defunding Planned Parenthood. The cases are very complicated, dealing with Medicaid law and how someone can bring a lawsuit to decide whether or not an organization can be a “qualified” provider.

By refusing to take the cases, the different rulings in the various circuit courts are left to stand. Justice Clarence Thomas authored a public dissent criticizing the other justices for being afraid to take up the case. He wrote that they ought to be taken up because of the split decisions in the circuit courts.

Without getting too deep into the weeds of Medicaid law, what are prolifers to make of all this?

First, don’t panic. We don’t know why Chief Justice John Roberts and new Justice Brett Kavanaugh didn’t want to take the cases. Maybe they agree with what the lower courts decided regarding Medicaid law. Maybe they don’t, but thought it wasn’t the right time or the right cases to decide the issue. In his dissent, Justice Clarence Thomas suggested the politics of abortion made the justices afraid to take the case now.

None of us know the exact reasoning behind their choice to not hear the case. Even if Roberts and Kavanaugh agree with the circuit court rulings, it has no bearing on abortion laws or ultimately even on defunding Planned Parenthood. Medicaid law is written to make it difficult for states to determine who is or isn’t “qualified” to receive Medicaid funding. Right to Life of Michigan hasn’t passed legislation making Planned Parenthood ineligible as a Medicaid provider, because a reading of Medicaid law indicates it’s probably not something we can legally do. We continue to pursue other avenues with higher chances of success.

There is a downside to originalist judges: if the law is written in a way you don’t like, good originalist judges will rule against you. The good news for us is Roe v. Wade and Doe v. Bolton are so legally indefensible that we don’t need justices to be prolife warriors; we just need fair justices. So far in their judicial careers, Roberts and Kavanaugh have sided with laws directly against abortion every time.

Here’s the real question we’re asking ourselves: why is defunding Planned Parenthood so frustratingly hard?

Planned Parenthood has taken a progressively larger role as both an abortion provider and as a leader within the abortion movement. As this has occurred, defunding them has become a progressively higher priority. Sadly, Planned Parenthood has spent more than a century embedding themselves in our public institutions. Their tentacles reach into a multitude of programs, as well as government and societal institutions. Dealing with each tentacle requires a different strategy at a different level.

On the state level, we’ve successfully defunded Planned Parenthood. We took away their ability to take taxpayer money directly for abortions with our Medicaid-funded abortion ban in 1988. Recent state budgets have zeroed out Planned Parenthood funding.

The real problems for defunding Planned Parenthood are the federal-state partnership programs like Medicaid and Title X and the morass of rules they have. Federal tax dollars flow through our state government to Planned Parenthood, and there’s not a lot we can do at the state level to block that because of how the federal laws are written. The Trump Administration has a unique plan to work within the law to limit Planned Parenthood’s Title X money, and we have a law to prioritize that funding for providers who don’t do abortions, but enforcement is always a challenge.

The simplest solution is to rewrite Medicaid and Title X laws. It’s not so easy, however, because of the Senate’s filibuster rules. In order to change those laws, we need a prolife majority in the U.S. House, 60 prolife votes in the U.S. Senate, and a prolife president. Or, we need to convince 10 pro-abortion U.S. Senators not to filibuster such legislation. Or, we change the U.S. Senate rules to scrap the filibuster (a double-edged sword that could be used against us).

Senate rules do allow spending bills to avoid a filibuster. In fact, the prolife majorities tried to use those rules to make Planned Parenthood ineligible as a Medicaid provider in the annual budget, but that effort was scrapped on July 28, 2017, by John McCain at the last minute, a 49-51 vote. He objected to specifics of the plan to repeal Obamacare that was also attached to the budget.

At that juncture, the U.S. Senate had to start back at square one. After that, the unthinkable happened in a special election to fill a Senate vacancy on December 12, 2017. Alabama voters had selected a profoundly flawed candidate in Roy Moore over the prolife candidate backed by President Trump, Luther Strange, in the earlier primary. Then in the general election Alabama voters chose the pro-abortion candidate Doug Jones over Roy Moore. We went from 50 prolife votes to only 49 votes in the U.S. Senate, and the golden opportunity was gone.

What are the lessons that prolife people should take away from all this?

Elections have consequences

Whatever you think of the Alabama special election, the practical effect of the vote doomed defunding Planned Parenthood. Alabama primary voters could have chosen a far more electable candidate, but they chose a firebrand with tons of personal baggage. Several prolife pundits made the case that voting for Roy Moore would hurt the prolife movement, but some of these same pundits complained about the Supreme Court’s decision yesterday and claimed the GOP didn’t have the guts to defund Planned Parenthood—these pundits opposed the 50th vote necessary for it to happen.

Sadly, we don’t live in a perfect world with perfect candidates. It felt good for many Alabama voters to buck the “establishment” and vote for the tougher guy. It felt good for other voters and pundits to oppose the same guy for his monumental character flaws. In the end, both groups are left bitter and disappointed. Prolife voters must always keep in mind the practical real-world consequences of their choices. Importantly, if you make a choice that results in a bad practical effect, you have to accept that consequence and move on.

We don’t have a critical mass of public support yet

Polls routinely show that people oppose being forced to pay for abortions. Planned Parenthood, however, has wormed its way into many institutions, including the media. They do a great job of gaslighting even their own supporters into believing that abortion is just a minor part of their operation. While public support for defunding Planned Parenthood has grown, it needs to be higher to achieve our goal permanently. Taking away their Medicaid funding for a year or two would be outstanding, but Planned Parenthood can still achieve small pro-abortion majorities who will give the money right back to them another year.

In order to defund Planned Parenthood totally, we need otherwise pro-abortion senators to fear how voters will react if they continue giving our tax dollars to the nation’s largest abortion provider. Right now, defunding is generally a 50-50 issue politically. It needs to be a 60-40 issue or better to create the best opportunities to enact prolife policy, like popular bans on direct taxpayer funding of abortion or partial-birth abortion bans.

The largest blame goes to the media

Immediately after the U.S. Supreme Court decided not to take up the case, the media joyfully began reporting that they ruled in favor of Planned Parenthood. While the decision largely helped Planned Parenthood’s effort to keep their funding in several states, the U.S. Supreme Court didn’t rule on the merits of the case pertaining to lawsuits involving Medicaid law. The articles in many major publications didn’t do a good job of explaining the issue.

When the undercover videos showing Planned Parenthood’s human organ harvesting schemes debuted, the media reflexively took Planned Parenthood’s side, some even denouncing their own tactic of undercover exposes as unreliable. When Planned Parenthood is revealed to be engaging in Medicaid fraud, or running a “meat market” abortion facility, or kills a patient out of negligence, they get cursory coverage by a few local sources at best.

The media fails to challenge Planned Parenthood on their false claims, and sometimes even helps spread them as the gospel truth.

When Planned Parenthood selects even a popular target for shaming, the media will shame away with glee.

Without a drastic change in how they conduct themselves, the major media institutions are never going to help the prolife movement build public support for defunding the leader of the abortion movement, much less provide neutral coverage.

If you are frustrated that Planned Parenthood is still taking your tax dollars and using it to further their abortion agenda, then it’s up to you. Do the job the media won’t. Talk about Planned Parenthood. Educate your friend and your neighbors. If you don’t want to create opportunities to do that, find the courage to take advantage of opportunities when they present themselves. We have resources to help you do that.

Planned Parenthood may have a decades-long head start on us, influence amongst our elite institutions, Hollywood, big-money interests and foundations, and gobs of your own cash to use against you. However, they don’t have the truth; they can only succeed by convincing people they don’t support abortion as much as they do.

Keep working to spread the truth and let people know Planned Parenthood and abortion are inseparable.