New Grant Focus on Abstinence Fought in Court

WASHINGTON (CN) – Planned Parenthood faced a steep battle Thursday as a Trump-appointed judge heard its challenge to new federal grant rules that emphasize abstinence over contraception.

Represented by Paul Wolfson at WilmerHale, Planned Parenthood is fighting May guidelines by the Department of Health and Human Services that determine eligibility for Title X funding, a 45-year-old family-planning program. In the 2018 budget, this is a $286 million pie.

The new guidelines give additional weight to applicants that adhere to certain priorities and issues deemed key by the government, and “natural family planning methods” are among these new priorities.

Planned Parenthood, whose challenge was consolidated with another by the National Planning & Reproductive Health Association, contends that the guidelines are too drastic a change to have been adopted without formal rulemaking.

At Thursday’s two-hour hearing, however, U.S. District Judge Trevor McFadden disputed Wolfson’s contention that the changes are “enormously consequential.”

“I can’t imagine that your clients were ignoring the key issues and priorities before,” said McFadden, who was a deputy assistant attorney general at the Justice Department before President Donald Trump elevated him to the bench last year.

Wolfson called it a significant change, noting that disputed portion of the application is worth 25 percent of the total score under the new guidelines.

Department of Justice attorney Alicia Hunt faced some pushback as well, however, noting that the test for whether an agency should engage in rulemaking and solicit public comments is not whether a party will be substantially impacted, but if it will be directly affected.

“But isn’t that the case here,” McFadden asked, pointing out that the new guidelines score applications on brand new focus areas.

Hunt called it a “procedural change” and said the new criteria are “not requirements.”

“It’s a very mild direction about consideration,” Hunt said of the new guidelines.

Contesting jurisdiction as well, Hunt said that the grant guidelines themselves do not constitute a final agency action. Hunt said court review is premature before the grant decisions are final.

McFadden asked how the agency would take the new key issues into account in considering the applications.

Hunt said she could not speak to the degree to which the panel reviewing the applications or the final decision maker would consider the key issues outlined in the funding proposal.

WilmerHale’s Wolfson noted meanwhile the failure by the government to solicit public comments on the change denied his clients the chance to show how the rule change will affect America’s network of Title X providers.

Planned Parenthood say the focus on abstinence will devastate low-income communities what Title X was designed to serve. If providers that focus on contraception are excluded from funding, they might have to lay off staff, turn patients away or in extreme cases shutter their doors for good, leaving patients in need with nowhere else to turn for life-saving health care.

McFadden did not say when he would issue a ruling on the matter.

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