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.