Family Planning Rule Hearing Focuses on Abortion Services Divide

A Sixth Circuit panel Thursday appeared split on whether to block a Biden administration rule that allows providers who refer patients for abortions to apply for federal family planning funds.

A group of Republican attorneys general sued to stop implementation of the Health and Human Services Department rule, which restored funding eligibility for Title X program participants that had been shut out by the Trump-era’s so-called gag rule and physical and financial separation requirements. Title X is the only federal program that supplies money for family planning services.

Judge Karen Nelson Moore, of the US Court of Appeals for the Sixth Circuit, appeared inclined to limit consideration of the case to whether a lower federal court properly refused to halt implementation of the Biden rule while the suit is pending. A different Sixth Circuit panel previously denied the states’ emergency motion to stop the rule’s implementation.

Benjamin Flowers, arguing for the plaintiff states, told Moore that the court can and should go on to decide the merits—whether HHS violated the Administrative Procedure Act when it adopted the rule. At the least, he said, the court should send the case back to the trial court to consider evidence that the states have already been harmed by the rule change. Flowers is with the Ohio Attorney General’s Office.

Courtney Dixon, arguing for the federal government, responded that the court must stick to the record. The only issue on appeal is whether to grant the states’ request for a preliminary injunction, and they didn’t show that they would suffer the irreparable harm necessary to stop the rule’s implementation while the case proceeds, the Justice Department lawyer said.

Harm Requirement

Ohio argued that the Biden rule is contrary to Title X because the the lawexpressly forbids using federal grant money to promote abortion as a method of family planning.

The plaintiff states have already suffered harm due to the rule, Flowers said. In the months it’s been in effect, Ohio has lost $1.7 million in grant funds that it received under the prior administration because the money was instead awarded to formerly disqualified providers, he said.

Dixon agreed that the plaintiff states have received less money under the Biden rule, and—in response to a question from Judge Amul R. Thapar—that Planned Parenthood Federation of America-affiliated providers have received about $2 million in Title X funds.

But according to HHS records, none of that money has gone to pay for abortions, Dixon said. The Trump rule imposed “a costly burden” to fix “a problem that didn’t exist,” as it led many otherwise-qualified providers to drop out of the running while it was in effect, she said.

Separation Controversy

Much of the controversy over the Biden rule has focused on its withdrawal of the abortion gag rule that prohibited grantees from referring patients for abortion.

But Thapar and Judge Joan L. Larsen appeared to be more concerned over the loss of the requirement that grantees physically and financially separate family planning and abortion services if they offer both. Larsen specifically wanted to know what qualifies as “separation.”

Dixon said that HHS has always required some degree of separation for providers of both services. Title X’s rules have never allowed counseling and abortion to take place during the same appointment, she said in reply to heavy questioning.

The agency doesn’t have a “bright-line” separation rule, Dixon added. It works with individual providers to determine if their efforts to separate services are sufficient, such as when they’re offered in different wings of a hospital or, if offered at the same facility, on different days of the week, she said.

‘No Line at All’

Flowers responded that HHS has “no line at all” for determining if providers fail to separate their services. The agency uses more of a “know-it-when-I-see-it” test, he said. And HHS has allowed providers whose programs are “thoroughly integrated"—using the same nurses, doctors, and facilities—to compete for Title X money, Flowers said.

The Biden rule was designed specifically to bring the nation’s largest abortion provider back into the Title X program, he said in a clear reference to Planned Parenthood.

Thapar added another wrinkle, asking both attorneys if family planning providers in states where abortion is highly restricted can retain eligibility for Title X funds if they offer to pay for patients to travel to states where it’s legal.

Dixon replied that HHS rules don’t allow Title X program participants to pay for travel, but Flowers referred to a comment made by HHS Secretary Xavier Becerra that the agency will support access to safe travel for patients seeking abortions.

It wasn’t clear from the arguments if the court will limit its ruling to the preliminary injunction question or if it will accept Flowers’ invitation to decide if the Biden rule violates the APA.

Ohio led the states filing the suit. Montana the led amici states supporting the plaintiffs, and New York led the amici states defending the rule.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Ohio v. Becerra, 6th Cir., No. 21-4235, oral arguments 10/27/22