The US Court of Appeals for the Sixth Circuit said on Thursday that the US improperly revoked a 2019 Trump-era rule prohibiting taxpayer-funded programs from offering family planning and abortion services at the same location. The court ordered a lower court to stop the US Health and Human Services Department’s rollback of the rule and stated that it likely violates Title X’s prohibition on funding programs “where abortion is a method of family planning.”
Judge Joan L. Larsen indicated that the decision is a loss for Title X grantees, who will have to cover the costs of separating their services in order to continue receiving funding. This has created uncertainty about the future of family planning services, especially for organizations like Planned Parenthood Federation of America, which serves about 40% of the program’s nearly 4 million patients. Their president and CEO, Alexis McGill Johnson, stated that the Trump administration rule had reduced the program’s patient capacity in half, while the Biden rule allowed many providers to re-enter the program and begin rebuilding patient capacity.
‘Surprisingly Good News’
Judge Larsen also mentioned that the agency’s 2021 rule lawfully reimposed a mandate that providers give patients referrals for abortion services when asked. Clare Coleman, President & CEO of the National Family Planning & Reproductive Health Association, described the ruling as “surprisingly good news” and a “win” for the Title X family planning program.
NFPRHA, which represents publicly funded family planning providers and administrators nationwide, filed a friend of the court brief supporting HHS in this case.
The court also stated that HHS was allowed to roll back the Trump administration’s rule, but it could not ensure compliance with Title X’s program requirements without requiring strict separation of finances and physical facilities. It said that HHS’ 2021 rollback of that requirement likely violates Title X’s program integrity requirements.
Ohio Attorney General Dave Yost called the court’s decision a vindication of Congress’ judgment that tax dollars should not fund programs that use abortion as a method of family planning.
Ohio, Other States
Title X is the only federal program that provides money for family planning services, especially for low-income patients. The court also found that Ohio was injured by the agency’s action, losing one-fifth of its Title X funds due to the rule change. However, the other state plaintiffs didn’t demonstrate that they were irreparably harmed by the 2021 rule.
The court said that HHS can enforce the referral rule, but it cannot do away with the strict separation rule pending a decision on the merits. It sent the case back to the district court for further proceedings.
Separate Opinion
Judge Karen Nelson Moore concurred with the majority’s conclusion on the referral rule, but said the states didn’t show a likelihood of succeeding on their claim that HHS hadn’t complied with Title X’s program integrity provisions.
The case is Ohio v. Becerra, 6th Cir., No. 21-4235, 11/30/23.