Title X Cases

Happening Now

  • On June 20, a three-judge motions panel of the US Court of Appeals for the Ninth Circuit granted HHS’ stay requests to stay injunctions blocking implementation of the Title X final rule. NFPRHA filed emergency motions to the en banc Ninth Circuit seeking a re-hearing and to reinstate the preliminary injunction blocking implementation and enforcement of the final Title X rule pending appeal.
  • On July 3, the US Court of Appeals for the Ninth Circuit granted NFPRHA’s emergency motion for re-hearing.
  • On July 11, the assigned en banc panel of judges for the Ninth Circuit denied NFPRHA’s request to restore the preliminary injunction that had been set aside by the motions panel’s stay while the re-hearing process moves forward.   

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.

The Department of Justice (DOJ), representing 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.

DOJ also filed a stay pending appeal with the US Court of Appeals for the Ninth Circuit. On June 20, a three-judge motions panel granted requests by HHS to stay the injunction in NFPRHA and Washington’s cases as well as the two other preliminary injunctions granted by district courts in Oregon and California.

Late the same day, on June 20, NFPRHA filed an emergency motion to the en banc court (eleven judges of the Ninth Circuit) seeking a temporary administrative stay pending resolution of a forthcoming emergency motion for reconsideration en banc of the motions panel’s order staying the preliminary injunction pending appeal. The emergency motion for reconsideration was filed on June 24. On July 3, the US Court of Appeals for the Ninth Circuit granted NFPRHA’s emergency motion for rehearing; however, the en banc panel issued an order on July 11 that the approval of re-hearing did not vacate the stay of the preliminary injunction granted by a three-judge motions panel and that NFPRHA’s request to set aside the stay granted by the motions panel was denied. As such, the preliminary injunctions barring implementation of the Title X final rule nationwide and in California are not currently in effect.

With respect to the injunction covering Maryland, the DOJ filed for a stay of the district court injunction. On July 2, a Fourth Circuit Motions panel, in a 2-1 ruling, granted the stay, setting aside the preliminary injunction applying to Maryland pending the outcome of the DOJ’s appeal of the preliminary injunction. The City of Baltimore has sought a re-hearing by an en banc panel of the Fourth Circuit and is awaiting a decision from the circuit on whether that request will be granted. 

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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