Title X Cases

Happening Now

  • Monday, September 23, 2019, at 1:00 p.m. PT, an 11-member en banc panel of the US Court of Appeals for the Ninth Circuit heard oral argument in several cases challenging the Trump administration’s Title X rule. The oral argument relates to preliminary injunctions issued by federal district courts in Washington (NFPRHA’s case), Oregon, and California. A video of the proceedings is available here.   

Summary

NFPRHA is currently fighting in court to prevent irreparable harm to the Title X program, NFPRHA’s members, and the millions of patients they serve each year.

Background

The Title X family planning program was established in 1970 by Congress to respond to President Richard Nixon’s proclamation that “no American woman should be denied access to family planning assistance because of her economic condition.” Since its inception, Title X has been a bedrock, cost-effective health care program helping ensure that poor and low-income individuals have access to critical family planning care, including contraception, pelvic exams, sexually transmitted disease testing and treatment, and screening for breast and cervical cancer.

2019 Title X Rule Case

On June 1, 2018, the US Department of Health and Human Services (HHS) officially published a notice of proposed rulemaking (“2018 NPRM”) for the Title X family planning program. The 2018 NPRM not only reintroduced the majority of a Reagan-era Title X rule known as the “domestic gag” rule, but it expanded those provisions and introduced numerous new and harmful requirements and restrictions.

A draft version of the final rule was made public on the Office of Population Affairs’ (OPA) website on February 22, 2019. Although the final rule, in many ways, was designed to target abortion-related activities and entities that provide abortion care, it is not limited to such activities and/or providers. The final rule would damage the nation’s family planning program and severely diminish, rather than increase, the public health benefits realized from the limited funding available to the program. It would have far-reaching implications for all Title X-funded entities, the services they provide, and the ability of patients to receive the confidential family planning and related sexual health care they seek.

On February 25, NFPRHA President & CEO, Clare Coleman, joined NFPRHA member, Cedar River Clinics based in Yakima, Washington, and Washington State Attorney General Bob Ferguson for a press conference in which NFPRHA and Attorney General Ferguson announced their intentions to file legal challenges to block the Title X family planning program final regulation from taking effect, once the final rule was published in the Federal Register.

The final rule was published in the March 4, 2019 Federal Register. The final rule was slated to go into effect 60 days after publication, on May 3, 2019, though certain provisions of the rule would not have taken effect until either 120 days after the rule’s publication (on July 2, 2019) or one year after publication (March 4, 2020).

On March 5, Attorney General Ferguson filed his state’s lawsuit in US District Court for the Eastern District of Washington.

On March 7, NFPRHA, represented by the American Civil Liberties Union (ACLU), filed its challenge to the final Title X rule, also in the US District Court for the Eastern District of Washington. NFPRHA is joined in its lawsuit by co-plaintiffs Feminist Women’s Health Center (doing business as Cedar River Clinics); Dr. Deborah Oyer, Medical Director at Cedar River Clinics; and Teresa Gall, a family nurse practitioner with Westside Clinic in Missouri.

The two related cases -- National Family Planning & Reproductive Health Association, et al. v. Azar, et al., and State of Washington v. Azar, et al. -- were consolidated for scheduling purposes.

On March 22, NFPRHA and Attorney General Ferguson filed separate motions requesting a preliminary injunction to prevent the final Title X rule from going into effect.

On April 25, the district court held oral argument before Judge Stanley Bastian, and NFPRHA and the state of Washington secured a complete preliminary injunction against any enforcement or use of the Title X final rule. Judge Bastian ruled from the bench immediately following the conclusion of oral argument, ruling that NFPRHA and the state provided sufficient evidence to warrant blocking the rule for all parties until the court could consider the legality of the rule. Judge Bastian was persuaded that an injunction covering the entire nation was necessary to give NFPRHA and Washington State complete relief from the harms of the Title X final rule.

Following the grant of the injunction in NFPRHA and Washington’s cases, three other courts granted preliminary injunctions: a second nationwide injunction secured by the Oregon Attorney General and 19 additional states and the District of Columbia, the American Medical Association, and Planned Parenthood Federation of America, issued by the District Court for the District of Oregon; and two additional injunctions blocking the rule’s enforcement in California and Maryland.

HHS filed motions seeking a stay of the preliminary injunction pending appeal, which Judge Bastian denied on June 3, 2019, and a stay of all proceedings pending appeal, which Judge Bastian denied on June 14.

HHS also filed a stay pending appeal with the US Court of Appeals for the Ninth Circuit. On June 20, a three-judge motions panel of the Ninth Circuit granted HHS’ motion to stay (temporarily set aside) the three preliminary injunctions granted by federal district courts in Washington (NFPRHA’s case), Oregon, and California. NFPRHA filed two emergency motions following that ruling: one requesting to put the motions panel stay on hold, and one requesting a rehearing en banc of whether its preliminary injunction should be blocked pending HHS’ appeal of it. The American Medical Association (AMA) and Planned Parenthood Federation of America (PPFA) filed similar motions seeking both to rescind the motions panel’s stay and seek en banc rehearing; the remaining plaintiffs filed motions seeking en banc rehearing.

On July 3, the full Ninth Circuit voted to grant a rehearing en banc of the motions panel’s stay order of the three preliminary injunctions. The July 3 order stated that the government’s stay request shall be reconsidered by a larger (en banc) panel of judges and that the motions panel stay order shall “not be cited as precedent by or to any court of the Ninth Circuit.” Under Ninth Circuit case law, all the parties (including HHS) believed that the Ninth Circuit had vacated the motions panel’s stay order and restored the preliminary injunctions.

However, on July 11, the en banc panel issued an order announcing that the July 3 order granting rehearing did not vacate the stay of the preliminary injunction. The panel, in a 7-4 vote, further denied NFPRHA’s and AMA/PPFA’s previously filed request to set aside the motions panel’s stay while the rehearing process moves forward.

The July 11 Ninth Circuit ruling, combined with the US Court of Appeals for the Fourth Circuit granting HHS’ motion for a stay of the district court injunction blocking the rule in Maryland, allowed the Title X rule to go into effect.

On July 25, NFPRHA, in conjunction with the Washington State Attorney General, filed an emergency motion in the Ninth Circuit for full court or limited en banc reconsideration of the July 11 order. NFPRHA’s July 25 filing joined a similar motion filed the same day by the AMA and PPFA to seek reconsideration. These motions argue that Ninth Circuit case law makes clear that a grant of rehearing en banc does in fact vacate the panel decision being reconsidered, even where the court does not expressly order vacatur; that the July 11 order is contrary to the Ninth Circuit’s consistent practice; that the direct result of the improper July 11 order is that that the new Title X regulations have taken effect (as of July 15); and that emergency relief is necessary to give proper effect to the July 3 order of the full Ninth Circuit that granted rehearing.

HHS set forth two compliance deadlines for the Title X rule. The first, set for August 19, required Title X grantees to provide “written assurance” and an “action plan describing the steps that they will take to come into compliance” with the Title X rule. Shortly before the deadline, PPFA notified the Ninth Circuit that, absent emergency judicial relief, all Planned Parenthood direct grantees will be forced to withdraw from the Title X program by the close of business on August 19.

On August 16, the Ninth Circuit denied the emergency motions for full court reconsideration. On August 20, the en banc panel (eleven judges) similarly denied the motions for reconsideration.

The combined result of the first compliance deadline and an absence of emergency judicial relief has forced all program grantees to make the very difficult choices NFPRHA has long warned would be the consequence of the rule: to stay in the program despite the rule’s harms and compromises to care, for the sake of continuing to offer some Title X care to patients; or to forego funding and leave Title X in order to avoid the rule’s limits on pregnancy counseling and other essential care.

On September 23, the en banc panel of the Ninth Circuit will hear oral argument in the Washington, Oregon, and California cases. A ruling is not expected until later this year

This case is still developing, and this page will be updated as events warrant.

 

Key Resources

Press Statements

Court Rulings

Key Court Filings

Title X Rule Resources

2018 Title X FOA Case

In February 2018, after months of delay, HHS issued the fiscal year (FY) 2018 Title X Funding Opportunity Announcement (FOA) to award Title X service grants, which sought to weaken the Title X program’s decades-old foundation of providing communities access to high-quality family planning and sexual health care by impermissibly adding new criteria to the substantive application review and grant-making process, which conflicts with Title X’s governing law.

On Wednesday May 2, 2018, NFPRHA, represented by the ACLU, filed a lawsuit in the US District Court for the District of Columbia to bar HHS from using the FY 2018 FOA to award Title X service grants. NFPRHA asked the court not only to prevent HHS from using this FOA as a basis of awarding of grants, but also to ensure that grant funding continued to flow and that NFPRHA’s members were able to continue in their roles as Title X grantees, until such time as a lawful FOA was issued and grants could be awarded under it.

Three Planned Parenthoods affiliates filed a separate lawsuit on similar grounds, and the NFPRHA and Planned Parenthood cases were consolidated as Planned Parenthood of Wisconsin Inc. v. Azar.

On July 16, the district court ruled in favor of the government, denying the requested preliminary injunction.

NFPRHA and the three Planned Parenthood affiliates appealed to the US Court of Appeals for the District of Columbia Circuit. On August 2, HHS announced the list of the organizations that would be awarded FY 2018 service grants under the Title X family planning program. This unprecedented announcement came just hours ahead of a scheduled filing by the government in the appeal. On August 10, the appellate court denied a request for an injunction pending appeal but did order the court clerk to set an expedited briefing schedule for the merits of NFPRHA and the Planned Parenthood affiliates’ appeal.

Oral argument was held on December 12, 2018. The appellate court has not yet issued its ruling.

Key Resources

Official Complaint and Case Explainer

Press Statement

Blog Post

Other Resources

 

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