Editors' Note: Due to an unexpected website outage from December 6-12, we were unable to distribute our December 6 issue of Family Planning in Focus. The updates from that issue are included in today’s newsletter.
SCOTUS Grants Review in Mifepristone Case
On December 13, the US Supreme Court granted certiorari (review) in the mifepristone case, FDA v. Alliance for Hippocratic Medicine. A second petition from Danco Laboratories was also granted, and the cases are consolidated for argument.
The mifepristone case was brought in November 2022 by a group of anti-abortion doctors and medical groups challenging the FDA’s initial approval of mifepristone in 2000, later approval of a generic version in 2019, and 2016 and 2021 actions to increase access to mifepristone. Danco later intervened.
In April 2023, US District Court Judge Matthew Kacsmaryk ruled against the government, but that ruling was put on hold pending an emergency request by the FDA for a stay pending appeal. That emergency request eventually landed at the Supreme Court, which blocked the district court ruling from taking effect pending final resolution of the appeals process.
In August, the US Court of Appeals for the Fifth Circuit ruled (PDF) in the appeal. The appellate court ruled that the challenge to the 2000 FDA approval was brought too late and upheld the 2019 approval of generic mifepristone, but it struck down the 2016 and 2021 actions to increase access (such as allowing mifepristone to be used later in pregnancy and for it to be prescribed via telehealth). However, due to the previous Supreme Court order, the August ruling did not go into effect pending potential review by the Supreme Court.
Now that review has been granted, the stay of the lower court rulings should remain in place until the Supreme Court rules in the case.
Along with granting the government and Danco’s petitions for review, the Supreme Court denied a conditional cross-petition by the plaintiff Alliance for Hippocratic Medicine which had requested that if the Court did grant review in the other petitions (which the plaintiff had opposed), the Court also review the FDA’s 2000 approval of mifepristone. The denial of review on this question implies that the Supreme Court does not intend to address the FDA’s original approval of mifepristone as part of its review.
Argument will likely be held in the later part of the current Supreme Court term, with a ruling not expected until near the end of the Court’s term in June.
NFPRHA will provide more information as warranted. If you have questions, please contact Robin Summers, Vice President and Senior Counsel, at rsummers@nfprha.org.
No Ruling Yet in Title X Parental Consent Case
On November 6, the US Court of Appeals for the Fifth Circuit heard oral argument in Deanda v. Becerra, the federal government’s appeal in the Texas Title X parental consent case.
Deanda is a legal challenge against the Title X family planning program’s well-established prohibition on requiring parental consent or notification for minors’ access to contraceptive care, which has been upheld by federal courts for decades.
In December 2022, US District Court Judge Matthew Kacsmaryk declared that Title X’s longstanding confidentiality protection violates Texas parental consent law and the US Constitution. In February 2023, the US Department of Justice (DOJ) appealed the district court ruling, leading to the November 6 oral argument before the Fifth Circuit.
Oral argument largely focused not on the merits of the legal issues involved, but on procedure: whether the plaintiff Deanda had standing to bring the case, and whether the district court’s ruling under the Administrative Procedure Act (APA) to “set aside” (vacate) part of the 2021 Title X regulations (clarifying Title X’s longstanding prohibition on requiring parental consent or notification) was proper since the legal claim had not been raised by the plaintiff during briefing.
Based on the substance and tenor of the judges' questions, it seems likely that the eventual Fifth Circuit ruling will be against the federal government and Title X’s protections of minors’ contraceptive access. However, the ruling appears most likely to take one of the following paths:
- Remand to district court for further proceedings concerning the factual record (related to standing) and/or amending the pleadings to add the APA claims;
- Ruling upholding district court ruling that Title X does not preempt Texas state law with regard to parental consent (finding that there is no conflict between the state and federal law);
- Ruling upholding the district court on the APA issue only;
- Ruling on both the APA and US constitutional claims (this seems less likely since none of the parties to the case argued the constitutional holding of the district court’s ruling, that the federal government’s administration of Title X’s parental involvement prohibition “violates the [federal] constitutional right of parents to direct the upbringing of their children.”)
How broadly any ruling would apply will depend on the specifics of the ruling, though the court (and even the plaintiffs) seemed to suggest the court’s eventual ruling would be limited to Texas or the states in the Fifth Circuit (Texas, Louisiana, and Mississippi).
There is no timetable for the Fifth Circuit to issue a ruling. You can listen to an audio recording of the argument here (mp3). To support members' advocacy efforts, NFPRHA has developed values-based messaging guidance (PDF) on the impact of mandated parental involvement policices on family planning access.
NFPRHA will provide more information as warranted. If you have questions about this or other cases, please contact Robin Summers, Vice President and Senior Counsel, at rsummers@nfprha.org.
NFPRHA is the New Convener of the NCQM Workgroup
On November 30, NFPRHA and the Coalition to Expand Contraceptive Access (CECA) announced that the NFPRHA will step into the role of convener of the National Contraceptive Quality Measures (NCQM) Workgroup. The NCQM Workgroup also will include a new subcommittee focused on collating the practices and experiences of contraceptive quality measure implementers and end users, with an emphasis on family planning and sexual health services providers using contraceptive care (i.e., “provision”) measures and/or the Self-Identified Need for Contraception (SINC) -based electronic clinical quality measure (eCQM) together with the Person-Centered Contraceptive Counseling Measure (PCCC) measure for quality improvement. This subcommittee will collect and disseminate strategies and details that can support the tandem use of measures across the family planning safety net and beyond.
Prior to 2016, there were no validated quality measures for contraceptive care. To address this gap, stakeholders developed measures to assess contraceptive provision (an intermediate outcome measure and marker of access) and client experience with contraceptive counseling. Between 2013-2019, the NCQM Workgroup brought together experts from the family planning and sexual health services field to help develop and disseminate nationally recognized quality measures related to contraceptive services. Re-imagined in 2022, the NCQM Workgroup now focuses on sharing information and lessons learned from the multitude of past and current activities, with an explicit focus on implementation and policy. Most recently, the NCQM Workgroup released two resources:
If you have questions, please contact Elizabeth Jones, Senior Director, Service Delivery Improvement, at ejones@nfprha.org.
Federal Funding Update
As of today, no progress has been made on full-year federal funding since the most recent continuing resolution (CR) became law on November 16. That CR funds some agencies through January 19 and others through February 2; of particular interest to NFPRHA members, the Department of Health and Human Services is funded through the latter but mandatory funding for community health centers expires on the former. Unfortunately, Congressional leaders have not even agreed to topline funding levels for fiscal year 2024, let alone made strides toward a final measure. Meanwhile, Speaker Mike Johnson (R-LA) has made clear that House Republicans will not agree to any additional short-terms CRs, and Senate Appropriations Chair Patty Murray (D-WA) has warned of the dangers of a full-year CR. In addition, Congress and the administration are reviewing a provision of the Fiscal Responsibility Act, which became law earlier this year, that requires a 1% across-the-board cut in April 2024 if funding decisions are not finalized soon.
NFPRHA continues to analyze the situation and will provide additional information to members in the new year. Please contact Lauren Weiss at lweiss@nfprha.org with any questions.
Due Friday: Participate in NFPRHA’s Anti-Racism Affinity Groups
Recently, we shared information and an invitation (PDF) to participate in NFPRHA’s new Anti-Racism Affinity Groups that will begin in calendar year 2024. We are asking that those interested in participating in an anti-racism affinity group please complete this survey to help us learn more about you and to inform our efforts to establish affinity groups of certain identities. Please submit your interest in this survey by Friday, December 15.
To join an anti-racism affinity group, you must be employed by an agency that is an organizational member of NFPRHA or hold your own individual membership with the association. You do not, however, need to be one of your organization’s official member contacts to participate. In fact, we are encouraging you to not only consider this opportunity for yourself, but to also invite a colleague. Think about someone in your agency whom you know would gain and grow through this experience, both individually and in support of your organization, and may not always be the person who is called upon regularly to participate in these types of opportunities.
If you have any questions about NFPRHA’s anti-racism affinity groups or want to learn more about this opportunity, please contact Illysa Schrager, Senior Director, Executive Office, at ischrager@nfprha.org.
Resource Round Up: Maternal & Child Health for Indigenous Communities
Indigenous people in the US face unique health care barriers and needs. Below is a round up of some resources to support improving specific, culturally-responsive care for Indigenous people in your community.
- US Maternal Mental Health County Level ‘Risk and Resources’ Map: from the Policy Center for Maternal Mental Health, an interactive map showing the gaps in maternal mental health care and where the greatest opportunities for providers and community-based organizations lie.
- Introduction to Cultural Safety: from Frontier Nursing University, a course on cultural safety that centers the Indigenous patient experience and discusses systems and strategies for improving cultural safety of care. (Eligible for CEU hours from the American Association of Nurse Practicioners.)
- The Restoration of Native Sovereignty and Safety for Native Women Magazine: from the National Indigenous Women's Resource Center, a publication dedicated to informing tribal leadership and communities of emerging issues impacting the safety of American Indian and Alaska Native women.
Webinar Recording Now Available
Last week, NFPRHA hosted a webinar on the Sixth Circuit ruling in the 2021 Title X regulation case, wherein a three-judge panel of the US Court of Appeals for the Sixth Circuit ruled in Ohio v. Becerra, the case originally brought by Ohio and eleven other states to challenge the 2021 Title X rule. NFPRHA's Senior Counsel, Robin Summers, explains the ruling of this court case in this NFPRHA membership webinar, supported by Clare Coleman, NFPRHA President & CEO, and Audrey Sandusky, Senior Director, Policy & Communications. A recording and powerpoint slides are available here.
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Issue Brief on Black Women & HIV
The O'Neill Institute for National & Global Health Law at Georgetown University recently published "Seizing the Moment: Elevating Black Women in the HIV Response," which includes recommendations and policy actions to lower rates of HIV transmissionof Black women in the US.
Rural Health Network Development Planning Program
This program aims to plan and develop integrated health care networks that collaborate to achieve efficiencies and expand access to care in the rural helath care system, over the course of one year of planning and convenings. For more applications or to apply (due January 26, 2024), click here.
Web Page on Innovation
The Office of Population Affairs (OPA) debuted a new web page: "Innovation in OPA Grant Programs," which showcases projects and initiatives that aim to solve our most complex public health challenges, particularly to advance adolescent sexual health.
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Upcoming NFPRHA Convenings: Winter Seasonal Meeting Registration Opening Soon
Registration will open this week for NFPRHA’s Winter Seasonal Meeting taking place February 12-14, 2024, in Newport Beach, CA. NFPRHA seasonal meetings are open only to current NFPRHA members, with no cost to register.
Also, don’t forget to mark your calendars for May 19-22, for NFPRHA’s 2024 National Conference in Washington, DC. Learn, share, and collaborate with fellow NFPRHA members, family planning experts, partners, and advocates on challenges facing the family planning safety net and opportunities ahead. Registration will open after the new year; there is a fee to register for the conference, with discounted registration rates available to members.
Travel assistance, for both events, is available by request for one person per eligible member organization. Additional information about travel assistance eligibility criteria will be available when registration opens. Please contact Amanda Kimber, Senior Director, Membership, at akimber@nfprha.org with any questions.
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