Eleven judges from the 9th U.S. Circuit Court of Appeals in San Francisco heard arguments Monday in challenges brought by 22 states as well as Planned Parenthood and other organizations. In June, a three-judge panel from the same court allowed the rule to take effect, undoing decisions by judges in Washington, Oregon and California that had put the administration's action on hold.
That prompted Planned Parenthood and other providers to leave the Title X program, which distributes $260 million in grants to clinics that provide low-income women with subsidized family planning services, including contraception and cancer screening.
Eighteen of the 90 providers around the country that receive Title X money have dropped out of the program, resulting in more than 500 fewer sites that provide Title X services, Ruth Harlow, an ACLU attorney representing the plaintiffs, told the court.
Some of those providers are keeping the doors open by charging fees for appointments that used to be free, dipping into their savings or doing additional fundraising. The rule adopted by U.S. Health and Human Services allows taxpayer-funded clinics to discuss abortion with their patients but bans them from making abortion referrals unless the woman's life is in danger. It also requires providers to refer patients for prenatal counseling, and it prohibits clinics that receive federal money from sharing office space with abortion providers — a requirement that would force some of the clinics to undergo expensive remodels, hire additional staff and install separate record-keeping systems.
The states and health organizations have raised several issues. They say the ban on abortion referrals violates requirements that federally funded pregnancy counseling be "nondirective" — that it provide neutral facts about pregnancy options. Further, they say that Health and Human Services offered no real rationale for its decision, and thus violated the law about decision-making by federal agencies.
Abortion opponents have long criticized Title X, saying it subsidizes abortion providers even if the federal money does not go directly to abortion providers, and they've celebrated the new requirements.
"The fact that the Final Rule would make it more costly for Title X-funded programs to provide abortion services only proves that the Rule is warranted and well-justified," the Susan B. Anthony List, an anti-abortion group, argued in a court brief.
But the clinics argue that there is no evidence that federal money is subsidizing abortion providers. There are strict requirements for spending and record-keeping to ensure that, they say. The administration argues that the rule is supported by Supreme Court precedent and is in keeping with the language of the 1970 Title X law, which bars the money from being used in clinics where "abortion is a method of family planning." It also points to similar rules that were adopted in 1988 and subsequently upheld by the Supreme Court. Under the Clinton administration, those rules were abandoned in favor of a requirement that the clinics provide neutral abortion counseling and referrals upon request.
Some of the judges, including Milan Smith Jr. and Kim Wardlaw, questioned how they could rule against the government when the Supreme Court had previously upheld similar rules. "I realize the regulation is a little bit different, but the concept is very clear: The Supreme Court says this is OK," Smith said.
Harlow responded that the legal landscape and the agency's rationale were different in the earlier case, 1991's Rust v. Sullivan decision; just because the Supreme Court accepted that rationale earlier doesn't mean it would now, she suggested.
Deputy Assistant Attorney General Hashim Mooppan argued that the ban on abortion referrals did not violate any requirement that pregnancy counseling be neutral. He suggested that a "referral" isn't necessarily part of "counseling," and even if it were, requiring a health care provider to be silent when it comes to making abortion referrals isn't the same as encouraging a patient to keep the baby.
That drew some derision from the judges. "Common sense suggests that when you go to a doctor and the doctor gives you advice, one part of that is going to be recommendations or a suggestion you see somebody," Judge Ricardo Paez told him. "They give you a referral."
"They are legally different concepts," Mooppan said. "Referrals can occur during counseling but that doesn't mean they are one and the same." It wasn't clear how soon the court might rule. If the court blocks the administration's policy, Planned Parenthood and other organizations that have dropped out of Title X might once again apply for grants.
In the meantime, the government is planning to redistribute to other Title X providers the grants those organizations have abandoned.