Family planning rules hearing focuses on abortion services

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

A group of Republican attorneys general filed a lawsuit to block the implementation of the Department of Health and Human Services rule, which restored eligibility for funding to Title X program participants who had been barred by the so-called Trump-era gag rule and physical and financial separation requirements. Title X is the only federal program that provides money for family planning services.

Judge Karen Nelson Moore of the United States Court of Appeals for the Sixth Circuit seemed inclined to limit the review of the case to whether a lower federal court properly refused to stop the implementation of the Biden rule while the lawsuit is ongoing. Another Sixth Circuit panel previously denied the states’ emergency motion to stop implementing the rule.

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

Courtney Dixon, arguing for the federal government, replied that the court should stick to the case. The only issue on appeal is whether to grant the States’ request for a preliminary injunction, and they have not shown that they would suffer the irreparable harm necessary to stop the implementation of the rule during the case continues, the Justice Department attorney said.

Harm requirement

Ohio has argued that the Biden Rule violates Title X because the law specifically prohibits using federal grant money to promote abortion as a method of family planning.

Plaintiff states have already suffered prejudice as a result of the rule, Flowers said. In the months it was in effect, Ohio lost $1.7 million in grant funds it received under the previous administration because the money was instead awarded to formerly disqualified providers. , did he declare.

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

But according to HHS records, none of that money was used to pay for abortions, Dixon said. The Trump rule imposed “a costly burden” to solve “a problem that did not exist” because it led many otherwise qualified suppliers to drop out of the race while it was in effect, she said.

Separation controversy

Much of the controversy over the Biden rule has centered on his removal of the abortion gag rule that prohibited recipients from referring patients for abortion.

But Thapar and Judge Joan L. Larsen seemed more concerned about losing the requirement that recipients physically and financially separate family planning and abortion services if they offer both. Larsen specifically wanted to know what constituted a “separation”.

Dixon said HHS has always required some degree of separation for providers of the two services. Title X rules never allowed counseling and abortion in the same appointment, she said in response to numerous questions.

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

“No line at all”

Flowers responded that HHS has “no guidelines” for determining whether providers are segregating their services. The agency uses more of a “know-when-I-see-it” test, he said. And HHS allowed providers whose programs are “completely 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 the two attorneys whether family planning providers in highly abortion-restricted states can retain eligibility for Title X funds if they offer to pay for patients to travel to states where it is legal.

Dixon responded that HHS rules do not allow Title X program participants to pay for travel, but Flowers referenced a comment from HHS Secretary Xavier Becerra that the agency will support access to travel. safe for patients seeking abortion.

It was unclear from the arguments whether the court will limit its decision to the preliminary injunction issue or accept Flowers’ invitation to decide whether the Biden rule violates the APA.

Ohio led the states to file the lawsuit. Montana led amici states to support plaintiffs, and New York led amici states to defend the rule.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charity 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, pleadings 10/27/22

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