The groups contend the rules for evaluating which health centers get money and how much they get are part of a broader effort by the Department of Health and Human Services to curtail comprehensive family planning services and by conservatives to divert funding from Planned Parenthood clinics.
At issue in the case is the $260 million federal family planning program known as Title X, which provides contraception, fertility treatment, cancer screening and other services for millions of low-income patients.
Planned Parenthood and the National Family Planning & Reproductive Health Association characterize the change as a radical shift that undermines a nationwide “network of highly effective and experienced family planning care providers.”
Federal officials in May announced a separate proposed Title X change that would bar clinics that provide abortion services or referrals from receiving federal family planning funds. Planned Parenthood serves about 41 percent of the 4 million patients who receive services through Title X.
The Supreme Court this week let stand two lower-court decisions that blocked state-level efforts to cut public funding for Planned Parenthood.
In the case before the U.S. Court of Appeals for the D.C. Circuit, Justice Department lawyer Jaynie Lilley said the lawsuit should be dismissed and is no longer relevant. The challengers, including Planned Parenthood, all received some funding under the new grant rules, and those guidelines have since been revised again, addressing many of the organizations’ concerns, Lilley said.
The argument Wednesday centered on the proper timing for challenging the government’s action.
The grant rules, Lilley said, did not amount to a final decision by HHS and so are not subject to court review.
Judge David B. Sentelle suggested the groups’ concerns should be raised at the end of the process.
But judges Gregory G. Katsas and Sri Srinivasan questioned whether it was practical for the health organizations to go to court after the grant money is announced yet before dollars start flowing. Was two to three weeks sufficient, they asked, for the court to potentially halt the process?
Attorney Paul R.Q. Wolfson, representing the health organizations, told the judges the narrow window was not enough time.
“The money would already be out the door,” he said.
A lower-court judge sided with the Trump administration in July. U.S. District Judge Trevor N. McFadden said the grant rules were consistent with long-standing goals of the program. The “substantive tweaks” are “neither new nor incompatible” with the program, and past guidelines have “contained similar priorities,” wrote McFadden, who was nominated to the bench by President Trump.
Last month, HHS announced the latest set of grant rules for fiscal 2019. The new criteria “have all materially changed,” and the appeal is moot, Lilley told the court.
Gone is the emphasis on abstinence for adults. The criteria instead focus on “providing counseling for adolescents that encourages sexual risk avoidance.”
The new rules also limit requirements for cooperation with community- and faith-based organizations.
Lawyers for Planned Parenthood said in court filings they remain concerned that the changes occurred without explanation, notice or opportunity for comment.
Even if the three-judge panel agrees with the administration that the case is moot, the groups are asking that the court essentially tear up the lower-court ruling so it does not apply to any future challenges.