WASHINGTON (CN) – Claiming to have been threatened by the government’s new focus on abstinence, Planned Parenthood found an unreceptive audience Wednesday at the D.C. Circuit given that it’s already received the federal grant it feared would be lost.
Three state arms of Planned Parenthood joined with the National Planning and Reproductive Health Association in May to challenge changes the Department of Health and Human Services made to how it awards grants under Title X, a section of the Public Health Service Act that awards money to organizations that provide family-planning services such as contraception.
Since the program began, the government has traditionally evaluated grant applications based on seven factors, including the number of patients served, the need in the applicant’s area and the availability of other, similar services in the area.
But when the agency put out its calls for new grants in February, it included a new focus on groups putting a “meaningful emphasis” on abstinence. The new requirement would be a factor the agency used when scoring grant applications.
In their May lawsuit, the groups said this new criteria meant the government was making a substantive change to the Title X grant program without going through the appropriate process for altering federal regulations.
The district court granted summary judgment to the government in July, saying the new requirements were not final agency action and therefore could not be reviewed. A month later, every Planned Parenthood affiliate that applied for a Title X grant learned that it had received one.
Wednesday’s arguments at the D.C. Circuit did not focus much on the validity of the department’s changes, but rather on whether groups could even bring their challenge to court.
Justice Department attorney Jaynie Lilley said unless the groups plan to challenge the grants themselves, which they have said they will not do, the case is moot.
But WilmerHale attorney Paul Wolfson, who argued for the groups on Wednesday, said his clients do not want to take any action that would hold up government money going toward needed services. Instead, the groups are bringing the challenge for fear that the government will use the new criteria when evaluating future grant proposals. In addition, Wolfson said, some of the grant winners changed their proposals to better fit the new requirements, even though they would have preferred not to.
He said if they cannot bring the challenge now, the groups have effectively no path into the courtroom.
“This has to be the time when the challenge can be made,” Wolfson said.
When Wolfson acknowledged the groups did not take advantage of their chance to seek relief like a preliminary injunction, U.S. Circuit Judge David Sentelle scoffed.
“I don’t see how you’re getting past mootness by saying we don’t want to do it that way,” Sentelle said.
U.S. Circuit Judge Gregory Katsas also pointed to precedent that forecloses plaintiffs from challenging a decision before it becomes final simply because it is impractical to do so afterwards.
Lilley agreed with Sentelle’s point, saying what the groups are challenging is not a final agency action as the requirements for grants can change year-to-year. The court would be issuing an advisory opinion if it ruled based on last year’s grant requirements, she said.
U.S. Circuit Judge Judge Sri Srinivasan was the most sympathetic ear to the groups on Wednesday, as he seemed concerned about the narrow window they have to challenge changes to grant criteria.
“The government’s view is that two to three weeks is enough to overcome an evading review point?” Srinivasan asked Lilley.