CINCINNATI (CN) — A U.S. Department of Health and Human Services rule that allows clinics that provide abortion referrals to receive federal family planning funds is illegal and should have been blocked by a federal judge, Ohio argued Thursday before the Sixth Circuit.
Ohio and 11 other states claim Title X, a law passed by Congress and President Richard Nixon in 1970 to provide federal grants for family planning services, does not allow for the indirect diversion of funds to abortion providers.
The Buckeye State filed a federal lawsuit against HHS last year seeking an injunction to prevent enforcement of a final rule implemented by the agency in October 2021 allowing clinics that make abortion referrals to again receive federal funds, which reversed a Trump administration policy. The state claims the new rule violates a compromise reached by lawmakers in the passage of Title X.
Senior U.S. District Judge Timothy Black, an appointee of Barack Obama, denied Ohio's motion for an injunction last December and determined HHS is entitled to so-called Chevron deference regarding its interpretation of the law. Coined after the 1984 U.S. Supreme Court case Chevron v. Natural Resources Defense Council Inc., the doctrine requires federal courts to defer to a federal agency's interpretation of a law, so long as that interpretation is not unreasonable and Congress has not spoken directly about the issue.
Black emphasized the distinction between Title X grantees and programs in his opinion, pointing out the HHS rule still prohibits abortion-related services from being part of a grantee's program.
He also rejected Ohio's claim that forcing Title X participants to provide abortion referrals upon the request of the patient violates the law.
"Abortion is, literally speaking, a method of family planning," the judge wrote. "But it is simply not part of the menu of family planning services that a Title X program can offer. Providing a referral for it does not put it on the menu."
On appeal to the Cincinnati-based Sixth Circuit, Ohio wrote in its brief the "high degrees of overlap and resource-sharing between Title X programs and abortion providers" renders the rule enforceable and contrary to Title X.
The state claimed it will be irreparably injured unless the rule is enjoined because more family-planning providers will be able to participate in the program, thus depriving it of federal funding for its health department.
The federal government pushed back in its brief to the appeals court and claimed Ohio and the other states had operated "under identical policies for decades" prior to the implementation of the 2021 rule.
The rule was put in place to counteract a 2019 rule put in place by then-President Donald Trump that dramatically reduced participation in Title X and deprived thousands of women of preventive and family-planning services, according to the HHS brief.
Increased competition for Title X funds is not an irreparable injury, according to the government, and a potential reduction in states' family planning services is too speculative for a court to grant an injunction, especially considering the broader positive impact of the 2021 rule.
"Millions of Americans depend on Title X family planning services," HHS argued, "and it is undisputed that the 2019 rule sharply curtailed access to those services. Restoring that access by maximizing the family planning services provided with the federal funds Congress appropriated for the purpose plainly advances the public interest."
Ohio Solicitor General Ben Flowers argued Thursday on behalf of the states and told the three-judge panel at the outset it was a "strange case" because the emergence of new evidence effectively defeated the federal government's argument.
Flowers pointed out in the time since the new rule has gone into effect and Planned Parenthood reentered the program, Ohio has lost over $1.7 million in Title X funding, a fact not disputed by his counterpart and which Flowers said shows the state has been irreparably harmed by the rule.
"Under the final rule, a provider can offer Title X [services] and abortions in the same building," the attorney said, "and can even make referrals to themselves."
Justice Department attorney Courtney Dixon argued on behalf of the federal government and reminded the panel the scope of the current appeal is limited to the evidence submitted to the lower court, which did not include the reduction in funding cited by Flowers.
U.S. Circuit Judge Amul Thapar, a Trump appointee, asked the attorney if she conceded Ohio received less funding.
Dixon conceded the point, and also admitted Planned Parenthood received $2 million in funding under the new rule, but defended the government's reworking of Title X.
"HHS found the 2019 physical separation requirements were a costly, burdensome solution for a problem that didn't exist," she said.
The government's attorney was peppered with questions from Thapar and U.S. Circuit Judge Joan Larsen, another Trump appointee, about whether physical separation between family planning and abortion services is required under the new HHS policy.
"It's more than mere technical bookkeeping," Dixon told the panel, and includes "counseling and administrative protocols."
"What does that mean?" Larsen asked.
"It's a relatively fact-specific inquiry," the attorney answered.
Dixon mentioned that large facilities could perform abortions in one wing of the building and family planning services in another, while smaller facilities might have certain days of the week devoted to abortions.
Larsen pressed the attorney for a definitive statement on whether physical separation was required and seemed exasperated by her responses.
"What is the separation? What do you want?" she asked.
"It's not a one-size-fits-all approach," Dixon answered.
In his rebuttal, Flowers pounced on his opponent's indecisiveness and drove home the point.
"They do not have any [separation] line at all," he told the panel. "What it amounts to is an 'I know it when I see it' test."
"There is no doubt the whole point of this [rule] was to bring abortion providers back into the Title X program," Flowers concluded.
U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, rounded out the panel. No timetable has been set for the court's opinion.
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