Planned Parenthood and the National Family Planning & Reproductive Health Association on Thursday asked a federal judge to prevent HHS from making changes to Title X funding that could effectively cut them off from federal dollars because their programs focus on contraception over abstinence.
The HHS tweaked how it would score grant applications for the Title X family planning program in February. The program doles out $260 million to healthcare providers. Under the revamped system, grant applications that emphasize natural family planning and abstinence and don't reference abortion would be scored higher, thus increasing their chances of securing funding.
The scoring change came months before HHS released a controversial rulemaking in May that bans clinics that offer abortions from receiving federal family planning funds.
Planned Parenthood and the association claimed the move was illegal because it didn't undergo a federal rulemaking.
"This is not only a new factor, it's the dominate factor in the agency's consideration of which grant to provide," said Planned Parenthood's counsel Paul Wolfson. "This is going to be a significant disadvantage for the network of established and experienced Title X recipients that for decades have been giving patients the most up-to-date comprehensive family planning services available."
But Department of Justice attorney Alicia Hunt rejected the advocates' claims, telling a federal judge in Washington that the new requirements didn't need a rulemaking because they were procedural changes.
U.S. District Judge Trevor McFadden, a Trump appointee, said he was unsure whether a rulemaking was necessary. He noted that it appeared the revamped scoring system made HHS' longstanding policy of supporting programs that emphasize abstinence and avoid risky sexual behaviors explicit.
To prove his point, he referenced a George W. Bush Administration-era Title X funding announcement that listed these funding priorities.
"I am having a hard time seeing how they changed nature of the program," he said.
Wolfson pushed back on McFadden's example, noting that though the ideas were mentioned before, they were not explicitly part of the scoring process. That's a major change to the Title X program, he said.
The federal government, for its part, asked McFadden to toss Planned Parenthood's suit because the policy change does not constitute a final decision and cannot be reviewed by the courts. Ultimately, Dr. Diane Foley, deputy assistant secretary of HHS' Office of Population Affairs, will determine who receives Title X funding and that won't be bound to the scoring changes.
But McFadden noted that organizations can score a significant chunk of points if they meet the new requirements.
"It looks to me that it arguably constrains her discretion as she must consider these additional factors," he said.
After the two-hour hearing, Clare Coleman, president and CEO of NFPRHA, said she was optimistic about the outcome of the case.
"We've never seen a funding announcement that shifts scoring or shifts priorities the way that this does," Coleman said. "I think the judge heard that and that's what makes me feel really good."
