Planned Parenthood argued in federal court Wednesday that it has the right to challenge guidelines from the Trump administration threatening to cut them off from receiving grants on avoiding unplanned pregnancies.
Planned Parenthood was in court to appeal a district court decision in July that allowed the administration’s guidelines about the program, called Title X, to stand.
[Opinion: Trump’s new rule: Title X isn’t welfare for Planned Parenthood]
“This isn’t about grant matters, it’s about dangers to the system,” said Paul Wolfson, the attorney representing the plaintiffs, including Planned Parenthood affiliates and the National Family Planning and Reproductive Health Association, represented by the ACLU.
The groups oppose the Trump administration’s announcement in February indicating it may prioritize federal family planning grants to groups that rely on the abstinence-only education or other natural methods to avoid conception.
The Trump administration, appearing before a three-judge panel in the U.S. Court of Appeals for the District of Columbia, did not directly address the guidelines it put out, but argued that grants are reviewed every year, and that changes to who receives grants are always possible.
“They will always make changes to how they review applications,” said Department of Justice lawyer Jaynie Lilley.
Wolfson said that while organizations were worried the administration would cut them from future grants, they also were concerned they might be spurred to alter the way they run programs in order to receive grants, despite believing other strategies work better.
The three-judge panel questioned why the organizations were challenging the announcement now, rather than waiting to see whether they are cut off from grants in the future. Wolfson said toward the end of the arguments that “this has to be the time,” explaining that if they were to wait until they were cut off then they would not be able to challenge the funding. Grants go out two to three weeks after they have been announced.
The organizations also didn’t want grants to be taken away from other groups, he said. He argued that the administration was trying to evade judicial review by taking the approach they did rather than go through rulemaking.
“We don’t want the funds not to go out to people, we just want them to go out in the right way,” Wolfson said.
Judge Gregory Katsas, who was nominated by President Trump, told Lilley that Wolfson had made “good practical arguments” about why they sued when they did. The DOJ lawyer responded to Katsas that an alternative way to challenge did exist, that the plaintiffs could always file a preliminary injunction halting all funds from going out after grant decisions are made, a practice done frequently.
The lawsuits focus on guidance that the Department of Health and Human Services put out in its Office of Population Affairs in calling for a broad range of family planning services. The document mentions “fertility awareness” several times, which is also known as the “rhythm method” in which women keep track of their fertility calendar every month so they know when to have sex to avoid a pregnancy. The document does not specifically mention forms of birth control medications or devices, such as the pill or intrauterine devices.
The lawsuit argues that the approach the administration took is illegal because the programs are intended to rely on the most effective birth control.
But changes haven’t been made yet. Of the 96 healthcare providers that will get family planning grants, 11 are Planned Parenthood clinics. That’s up from 10 Planned Parenthood clinics that got grants in fiscal 2017, according to data from HHS.
An FAQ describing the grants to interested participants said that organizations that provide “natural family planning” can apply for the grants but that they “cannot be the only method provided.” In these cases, HHS said, applicants should partner with other organizations that “provide the broad range of family planning methods.”
The Trump administration is reviewing broader rules around the grants that will consider whether they should go to organizations that also provide abortions. Those who advocate for a change that would block organizations such as Planned Parenthood from receiving federal funding say that the grants free up additional funds for clinics to provide abortions.
