By Britain Eakin/Courthouse News

WASHINGTON (CN) – Planned Parenthood asked a federal judge Tuesday to preserve its Title X grant funding while the D.C. Circuit considers its challenge to shifts in the program’s guidelines it says will favor providers that emphasize abstinence over birth control.

In a July 17 opinion, U.S. District Judge Trevor McFadden said the challenge was premature since the awards have not yet been granted, and held that the Department of Health and Human Services’ revised funding criteria did not constitute final agency action that the court could review under the Administrative Procedure Act.

Planned Parenthood and the National Family Planning and Reproductive Health Association sought an emergency injunction and appealed to the D.C. Circuit the day after McFadden denied their bid to block HHS from awarding grants under the revised criteria.

Attorney Paul Wolfson with Wilmer Cutler argued Tuesday afternoon that if the court fails to act now, the 45-year-old Title X program, which offers funding for family planning services to providers like his clients, will be thrown into disarray.

Wolfson asked McFadden, again, to bar HHS from awarding the grants under the revised criteria in addition to ordering the agency to maintain current funding levels pending appeal.

To persuade McFadden to grant such relief, they must persuade him this time around that they will be irreparably harmed without the court’s intervention.

Wolfson said Tuesday that if his clients do not receive grants for the upcoming fiscal year, which the Department of Health and Human Services is poised to award mid-August, they will have to lay staff off in mass and possibly shutter clinics, leaving millions of Title X patients without much-needed health care.

“Those are not harms that can simply be reversed if we were to prevail at the end of the case,” Wolfson said.

As he did during a hearing in June on their initial motion for a preliminary injunction, McFadden expressed skepticism that Wolfson’s clients are facing imminent and irreparable harm.

Noting that Planned Parenthood and the National Family Planning and Reproductive Health Association represent roughly 84 percent of Title X grant recipients in the nation, McFadden surmised that many of those providers will in fact receive grants under the revised criteria.

“Doesn’t that kind of go to the irreparable harm here,” he asked.

But McFadden pushed further, questioning Wolfson about whether his clients would be willing to incorporate abstinence into their Title X programs. Some of the declarations submitted to the court indicate a willingness to do so, and in fact show that some already are, he added.

A May 8 declaration from the president of Planned Parenthood of Wisconsin, Tanya Atkinson, notes that the organization “has always incorporated abstinence and natural family planning into our family planning services and methods.”

She notes however that it’s done as part of a “client-centered, comprehensive approach to family planning,” and is not appropriate for everyone.

“To emphasize abstinence to all Title X patients—regardless of age or circumstance—would undermine our commitment to providing medically effective family planning methods and would devastate our credibility, particularly among healthy, sexually active adults for whom we know emphasizing abstinence is proven to be ineffective,” the declaration added.

But McFadden said such declarations show that Wolfson’s clients are already pretty well situated to get Title X grants for the upcoming year.

“It seems to me like you are already doing a lot of these things,” McFadden said.

Discussing abstinence with an adolescent, Wolfson responded, would be more appropriate than doing so with a grown woman who wants to be sexually active.

Requiring his clients to adopt HHS’ new criteria wholesale could lead to a break down between patients and providers, Wolfson said.

Department of Justice attorney Alicia Hunt meanwhile argued that any perceived harm to Planned Parenthood and the National Family Planning and Reproductive Health Association  is “speculative” at this point, since they remain eligible to be awarded Title X grants.

“This competition has not been completed,” Hunt said. “We just don’t know that the plaintiffs would lose funding as a result.”

Hunt urged the court to deny the request, saying it would “upend” rather than preserve the status quo.

“There’s risk that the program would be thrown into disarray,” Hunt said, noting that it’s unclear how long the appeals process will take.

With grants for the upcoming fiscal year to take effect September 30, Hunt said it would be a “Herculean task” for HHS to continue funding the current grants while the matter is on appeal, creating the risk of a funding gap.

Wolfson meanwhile argued that it would be more disruptive for HHS and its administration of the Title X program if the D.C. Circuit rules in favor of his clients.

But Wolfson argued in the motion for an emergency injunction that much more is at stake than disruption of the program.

“The government’s reasoning—and the Court’s ultimate decision that an agency’s adoption of ‘intermediate review criteria’ is not reviewable…would immunize a broad swath of agency policymaking from review as long as substantive policymaking is nested within an FOA or similar mechanism,” the emergency motion says, abbreviating funding opportunity announcement.

“Whether the Administrative Procedure Act is so easily circumvented is an important legal question of broad application. An injunction pending appeal would enable appellate review of this novel position before the agency is able to use it to insulate its decisionmaking in this case and others,” the motion continued.

McFadden said he would issue a ruling on the emergency motion from the bench.

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14 replies on “Planned Parenthood seeks to preserve Title X funding”

  1. These simple and straight forward attacks on things like science, women, reproductive rights, and privacy need to be challenged. Seeing an organization like NFPRHA engage in this fight for its members is a great thing. It focuses the discussion on the actual, service delivery, and not the theoretical.

    Wausau does not have a Title X provider, but it does have a Title V provider that provides similar services as Title X. I think those services should be seen as an investment in our community, and our economic future.

    The ability to control ones family size, and the timing of ones family growth is an economic indicator.

    And on a practical level, we see what happens when service providers close. The City of MKE lost two providers, and are in the middle of an STI spike with clearly defined clustering.

    It is my hope that the federal government reverses course on its attacks on Title X and by extension Title V, becomes more science friendly, and acknowledges that reproductive health care is in fact health care.

  2. Dino, there are many ways to “control” the size of one’s family without killing another human being. You mention “reproductive” rights. What about the rights of an unborn child? You should maybe give those rights some thought.

  3. Stan, your limited view of reproductive health care is limiting you in discussion. There are many ways to control the ones family size other than terminating a pregnancy, and this attack on Title X and Title V attacks all but one of them.

    Women have a right to equal service under health care, and should not have there options limited by things like this. This will attack distribution of safe and legal birth control, this will attack sex education, and family planning services far beyond your focus on abortion. Abortion by the way, is a legal medical procedure in this country.

    To deny women and families access to health care because you find it morally objectionable is a specious process at best, and misogyny at worst.

    Reproductive health care is health care. And science is science.

    1. Dino, I noticed that you did not touch on the rights of the unborn. Did you just forget or do you wish not to comment?

  4. Abstinence vs birth control, sex vs family, liberal or conservative, just pay for it yourself, whatever you decide to do. No one is responsible for your pleasures or procreations.

  5. Ron, that seems like a fun way to do it. But, our social contract requires each of us to pay for many things for our fellow citizens. I do not get to choose how much I am willing to pay for the any President to go golfing, or wars, or roads in states I am never going to go.

    But, I pay taxes, so I do.

  6. All government employees are useless, be it presidents or bug sprayers. I am all for roads (in moderations). The rest can go jump off any bridge they like. Collecting sperms in rubber for their personal pleasure has nothing to do with “Parenthood”.

    1. Too bad those poor illegal moms at our borders didn’t have Title X funds to abort their spawn, right Dino? I mean, it’s all about “reproductive healthcare”, isn’t it?

      1. I am not really sure what your talking about. I am familiar with the border, and illegal moms, but I am not sure how to answer, “I mean, it’s all about “reproductive healthcare”, isn’t it?”

  7. call, federal dollars cannot be used for abortions… the mom’s crossing the border seeking asylum and already had their children in the countries they are fleeing to avoid rape, death, and having their kids forced to join a gang…

    Ron, we need public employees, like our military and VA, police, firefighters, EMT’s, and public clinics, we do need the roads and bridges for transportation and business and commercial efforts…

    As long as poor women are facing poverty and pregnancy, they need reproductive healthcare, cancer screening, STD screening, birth control, pre- and Post-natal care, new infant care and nutrition programs…

  8. – Teachers have their own healthcare insurance subsidized by the middle class
    – Military has their personalized VA subsidized by the middle class
    – Police and firefighters get their own subsidized healthcare payed by the middle class
    – Poor women are entitled for subsidized free healthcare payed by the middle class

    What does the middle class get? An exclusive, forced, high deductible, healthcare after paying $6000 out of pocket at $300 a month per head.
    I am not sure why all the above entities are more entitled then myself?
    Planned Parenthood can select a bridge to jump from. My healthcare comes first.

  9. Ron, The health care for teachers, military, Veterans, police and firefighters are part of the compensation for their work and the pensions are deferred payments for work performed… this should be the norm and not the exception.

    If you complain about quality health insurance plans and is easily corrected by initiating a universal health care, which cost other nations about half of what we pay in America and gets better results.

    The real problem with the middle class is stagnant pay versus the inflation rates, lack of pension plans and universal health care,

    our access to affordable health care comes first and poor women need health care form Planned Parenthood and it saves people amazing amounts money and suffering…

    So if you vote for universal health care, then we all benefit!

    So I will still have Medicare and VA, but can save around $4000 to $5000 dollars on co-pays, and Medicare Plan B…. but with universal health care it will all be a shared cost and we won’t have people without coverage… better health care, better costs…

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