An 11-judge panel in San Francisco on Monday didn't appear ready to freeze the Trump administration's controversial overhaul of the Title X family planning program, as plaintiffs have asked.
Instead, in oral arguments the 9th U.S. Circuit Court of Appeals dived into the merits of the legal claims against HHS, which are also under consideration in a U.S. district court in Washington state. This latest phase of the complicated legal battle against HHS showed that the Title X fight is far from over.
Essential Access Health, California's largest Title X grantee, and other plaintiffs including Planned Parenthood Federation of America and 22 states want the 9th Circuit's panel to block the Trump administration's rules while the litigation winds its way through the courts.
Planned Parenthood affiliates and seven states have already exited the federally funded program since last month, when they had to promise to comply with the part of the regulation that bans any Title X provider from offering direct abortion referrals.
Essential Access Health is complying with the first wave of regulation to keep its share of the roughly $280 million in grants while it fights the new rules.
On Monday, judges appeared split on their view of the alleged harms the policy is inflicting. The first provision of the rule, which has been sharply opposed by clinician trade groups like the American Medical Association, is the ban on direct abortion referrals. Instead, at a patient's request, doctors can list abortion as one of several options.
Another critical provision of the rule, which isn't slated to start until March, would "defund" Planned Parenthood, or any Title X clinic that also offers abortions. They would have to move their abortion services to another site or shut them down entirely, and they would also have to run a separate electronic health records system for their abortions.
To get at the harm question, Judge Milan Smith on the panel signaled he wants to look at the exact number of clinics that have left the program in the wake of the regulations, beyond what was forecast by HHS when the regulations were written.
Another judge, Richard Paez, demanded audits that showed whether Title X clinics that offered abortions subsidized their abortion services with federal money. The government counsel didn't produce audits for the record, but reiterated how some Title X-funded facilities did also offer abortions.
But Judge Consuelo Callahan asked whether the government might not also suffer irreparable harm if it's not able to enact policies it chooses, as long as they're constitutional.
"That's part of what they call 'Elections have consequences,' " Callahan said. "If it's constitutional or legal, they can change policies."
Judge Sandra Segal Ikuta questioned whether the harms claimed by the plaintiffs in the form of high added costs showed that federal money was in fact subsidizing abortions.
Meanwhile, other judges seemed skeptical of the plaintiffs' claims that HHS overstepped authority or violated law with new regulations for the program.
Smith repeatedly went back to the precedent of the 1991 U.S. Supreme Court ruling that upheld the so-called "physical separation" requirement that essentially bars abortion providers from the program.
Ruth Harlow, arguing for the plaintiffs as part of the American Civil Liberties Union, said the world and regulatory realm is very different now than it was in 1991, so that the Supreme Court decision should no longer reverse decades-old policies for a program.
But Smith made it clear he's uncomfortable with that reading.
"Aren't we bound by the Supreme Court by the bigger issues, like First Amendment issues, and the separate facility issue?" he asked. "Why would we be free to come to a different conclusion here?"
He also brought up the Hyde Amendment, which Congress includes with its appropriations to prevent any federal funds from going to abortions, as indicative of congressional intent.
"Whether you agree with the policy or not, the Hyde Amendment has been in effect for a long time," Smith said. "The reality is, unless the Hyde Amendment is in place, you can't use money for abortion."
And the bench appeared split over the arguments regarding the ban on direct abortion referrals. Plaintiffs call this a "gag" clause on doctors, a characterization disputed by the government since abortion can be listed as one option among others if a pregnant woman inquires about it.
A few judges took the government lawyers to task over their technical definitions of medical counseling versus referrals, and when the government can be involved.
Ikuta questioned whether the plaintiffs' arguments could lead to a ban on Title X funds for a clinician who opted not to offer abortion referrals under the law's "conscience" protections—and whether that could constitute a "gag" rule on that doctor.
In the wake of the arguments, plaintiff groups emphasized that they'll stay in the legal fight.
"The takeaway is that this is another stage in what is going to be a long fight," said Clare Coleman, CEO of the National Family Planning & Reproductive Health Association. The group represents many Title X grantees and is one of the plaintiffs on the lawsuit.
"The damage that we said would happen is happening, it is not hypothetical," she added.
About 20% of the 90 Title X grantees have left the program so far. The government estimated only about 10% of grantees offer abortions in the same site as their Title X services.
