Though 12 states have filed a legal challenge to a Biden administration rule that allows clinics that refer for abortions to receive federal family planning funds, a federal court has said the rule can stay in place pending the outcome of the lawsuit.
The lawsuit was brought by Ohio Attorney General Dave Yost, joined by attorneys general of Alabama, Arizona, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia, the Associated Press reports. Not all of these states take Title X funding.
On Feb. 8, the 6th U.S. Circuit Court of Appeals in Cincinnati denied the 12 states’ request to halt the Biden administration’s new rule, on the grounds that they failed to prove they would be irreparably damaged by the rule taking effect.
The lawsuit seeks to re-instate the Trump administration’s Protect Life Rule on Title X funding. The rule was intended to serve as a firewall between family planning clinics and abortion services, Yost said. The suit argued that the Biden administration rule will “subsidize abortion.”
“You can’t ‘follow the money’ when all the money is dumped into one pot and mixed together,” Yost said Oct. 25. “Federal law prohibits taxpayer funding of abortion — and that law means nothing if the federal money isn’t kept separate. That, frankly, is the real reason behind the rule.”
Planned Parenthood, the nation’s largest abortion provider, had been receiving about one-fifth of the total amount of Title X funds distributed each year. It withdrew from the program rather than comply with the rules, losing about $60 million annually. Planned Parenthood still receives roughly $500 million annually in Medicaid reimbursement.
Yost’s lawsuit argued that Ohio received more money through Title X program without competition from Planned Parenthood of Greater Ohio, the Columbus Dispatch reports. Under the new rules, the state could get less funding and have to reduce services.
In December U.S. District Judge Timothy Black had denied the lawsuit backers’ request for a preliminary injunction. He characterized the legal challenge as a policy disagreement, not a legal one, the Associated Press reports. He rejected Yost’s argument that a financial firewall was necessary on the grounds that money is fungible.
“The principle that money is fungible must have theoretical limits or else no government appropriations for specific purposes could ever be feasible,” said Black. “Title X no more subsidizes abortions than funding a homeless shelter subsidizes substance abuse.”
The Title X family planning program funds contraceptives and family planning services, as well as some basic health care services, for low-income communities. About $250 million in funding is available each year.
The Biden administration’s Department of Health and Human Services, in a final rule announced on Oct. 4, 2021, has said that clinics participating in Title X can once again refer for abortions, and do not have to be physically separate from abortion facilities.
The rule undoes a 2019 regulation under the Trump administration known as the Protect Life Rule. It had barred Title X recipients from referring for abortions and barred clinic recipients that were co-located with abortion facilities.
That Trump-era rule was issued to help ensure separation of Title X funding from abortion. The original statute that created the program in 1970 specified that no funds “shall be used in programs where abortion is a method of family planning.”
Several states and other organizations left the Title X program rather than comply with the Protect Life Rule. About 1,300 local facilities in total left the program, the Associated Press reports. Backers of the clinics said they hoped the Biden-era rule means they will return to Title X.
The rule change drew criticism from Archbishop Joseph Naumann of Kansas City in Kansas, who at the time was chairman of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities.
“The administration is wrong to allow taxpayer dollars to fund abortion providers who participate in a pre-pregnancy program specifically designed to exclude abortion,” Naumann said on Oct. 7, 2021. He noted that the Title X program was authorized to be “a program entirely separate from abortion.”
Naumann added that bishops have grave concerns about government promotion of contraceptives, and have long supported efforts to ensure that abortion is kept physically and financially separate from family planning under Title X.
In a May 2021 letter to the Biden administration, 21 states’ attorneys general, including Yost, warned the Department of Health and Human Services not to reverse the rule.
The Biden administration’s Department of Health and Human Services, in its rule-change proposal, cited statistics from the pro-abortion rights Guttmacher Institute that claimed that the Protect Life Rule led to nearly 182,000 “unintended” pregnancies.