A federal appeals court on Friday ruled against Planned Parenthood in a dispute over HHS' changes tying family planning funds to abstinence counseling.
In a split decision, two members of the three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit said there was nothing they could do for Planned Parenthood because the grant opportunity for Title X funds had expired and the money spent. HHS changed the funding criteria in a 2018 rule, and later implemented a different version of the criteria.
Those changes made Planned Parenthood's lawsuit moot, the D.C. Circuit said. The majority wrote that barring a rule that was no longer in effect wouldn't have any real impact.
The two judges said that Planned Parenthood could file a new lawsuit if it wanted to challenge the current policy.
"The legal controversy teed up by the plaintiffs is not capable of repetition," Judge Gregory Katsas wrote for the majority. "The plaintiffs remain free to challenge ongoing HHS policies in a separate action, but they have preserved no such challenge here."
A lower court found that HHS didn't violate the law when it changed the Title X criteria without going through a public notice and comment period, but the D.C. Circuit didn't rule on that issue because the 2018 rule is now out-of-date.
HHS could make further changes to Title X without going through a public comment period, Judge Sri Srinivasan wrote in his dissent. That could lead to a similar lawsuit in the future because HHS hasn't changed how it updates the policy.
"The amended regulation, in short, does not stand in the way of HHS's repeating the conduct challenged by the plaintiffs as inconsistent with the (law)—if anything, the regulation invites that very conduct," Judge Srinivasan wrote.
Under Title X of the Public Health Service Act, HHS can give out grants for voluntary family-planning services. Until earlier this year, Planned Parenthood delivered a wide range of family planning services, including contraceptive services, to 1.6 million—or 40%—of the 4 million people who receive family planning services under Title X funding.
Planned Parenthood withdrew from the Title X program in August because it didn't want to abide by a new rule that would prohibit them from referring patients for abortions. Anti-abortion activists have accused the program of providing back-door funding for abortions to Planned Parenthood and other participating organizations.
"This most recent court decision again makes clear Congress must take action and do what people are asking them to do—protect access to affordable birth control and reproductive healthcare," said Jacqueline Ayers, vice president of government relations and public policy for the Planned Parenthood Federation of America.
HHS declined to comment on the appeal.