(CN) — A Sixth Circuit panel on Thursday granted Ohio an injunction specifying that clinics receiving federal family planning funds must be physically and financially separated from facilities that provide abortion physically and financially separated from facilities that provide abortions — but clinics must still provide abortion referrals when requested.
In the 2-1 ruling, a Sixth Circuit panel found that a group of Republican-led states were unlikely to succeed on the merits of their claim that a Biden administration rule requiring recipients of family planning funding under Title X of the Public Health Service Act to offer abortion referrals when patients explicitly request them violated a section of that act prohibiting the use of those funds “in programs where abortion is a method of family planning.”
A second set of rules, however, did not survive the court’s scrutiny. The Biden era Health and Human Services Department eliminated a 2019 rule requiring recipients of Title X grants to maintain strict financial and physical separation between the grant recipient and any entity providing abortions — re-adopting a policy first enacted in 2000 which required only financial separation.
U.S. Circuit Judge Joan Larsen, a Donald Trump appointee — joined by U.S. Circuit Judge Karen Nelson Moore, a Bill Clinton appointee — referenced Rust v. Sullivan, where the Supreme Court upheld that federal funds were not to be used to provide abortion as a family planning method.
"The Supreme Court in Rust rejected the arguments proffered by both parties — that providing counseling and referral for abortion is either necessarily treating, or not treating, 'abortion as a method of family planning,'" she wrote. "In light of this holding, it must be permissible for an administration to treat referrals either as falling inside or outside § 1008’s prohibition, so long as the Department adequately explains its choice."
Larsen and Moore found that the policy change was not likely to overcome the act, though they determined that of the twelve states suing to overturn the rules, only Ohio had shown that it would suffer irreparable harm without a preliminary injunction.
Ohio filed suit against the Department of Health and Human Services in 2021, joined by the states of Alabama, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina and West Virginia.
Senior U.S. District Judge Timothy Black, a Barack Obama appointee in the Southern District of Ohio, denied the states’ motion for a preliminary injunction that December, and then-Ohio Solicitor General Ben Flowers argued on behalf of the states in oral arguments last year. Larsen found that of those states, only Ohio had concretely shown that its Title X funding decreased in the wake of the rule change.
Planned Parenthood dropped out of the state’s Title X program in the wake of the Trump-era rulemaking, making the Ohio Department of Health the only recipient of Title X funds in the state. In the wake of the new rules, Planned Parenthood returned to the program, and received $2 million from Department of Health and Human Services while the state agency’s funding dropped by $1.76 million.
“Nothing in the record supports HHS’s suggestion that Ohio’s decrease in funds was a result of poor performance,” Larsen wrote. “In sum, due to the rule change, Ohio lost one-fifth of its Title X funding, an amount that it cannot get back.”
U.S. Circuit Judge Amul Thapar, a Trump appointee, provided a counterpoint to Larsen and Moore’s decision in a partial dissent.
"The majority directly contradicts the Supreme Court’s clear holding that the statute is ambiguous and says nothing about program integrity to hold instead that the statute requires more than just financial separation," he wrote of the separation rule. "The majority then selectively and misleadingly quotes Rust to imply that the Supreme Court held that Title X requires grantees to have separate ‘abortion programs’ run separately and independently from Title X projects ... Attempting to gin up some further requirements by looking to a nonrelevant discussion in Rust, contrary to both the statute and the Court’s holdings, is disingenuous at best.”
Flowers celebrated the ruling on Twitter, congratulating Ohio Attorney General Dave Yost for “striking this latest blow against lawless agency rulemaking.”
Ohio has been a hot spot for abortion policy in the aftermath of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court decision which largely stripped the abortion protections granted by Roe v. Wade. The state’s 2019 “heartbeat” abortion ban took brief effect after the Dobbs decision, but was blocked during a challenge under the state constitution in 2022. Earlier this month, Ohio voters approved constitutional protections for abortion access and other reproductive rights, though those protections are at risk of not taking effect this December as intended.
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