Ohio tells appeals court that Title X does not allow for the indirect diversion of funds to abortion providers

By Dave Andrusko

Ohio and 11 other states told the Sixth Circuit Court of Appeals on Thursday that Title X, a law passed in 1970 to provide federal grants for family planning services, “does not allow for the indirect diversion of funds to abortion providers,” according to Kevin Koeninger reporting for CourtHouse News.

“The Buckeye State filed a federal lawsuit against HHS last year seeking an injunction to prevent enforcement of a final rule implemented by the agency in October 2021 allowing clinics that make abortion referrals to again receive federal funds, which reversed a Trump administration policy,” Koeninger wrote. “The state claims the new rule violates a compromise reached by lawmakers in the passage of Title X.”

One of the first goals of the pro-abortion Biden Administration was to reopen the federal “Title X” family planning spigot, allowing Planned Parenthood to again receive millions of federal dollars.

Under the Trump administration’s “Protect Life Rule” these funds could not be utilized by facilities that commit or refer for abortions. 

That rule brought the family planning program back in line with the intentions behind the program’s founding: to receive money, an entity could not co-locate with abortion clinics or refer clients for abortion as a method of family planning.

But Biden changed it back “to how it ran under the Obama administration, when clinics were able to refer women seeking abortions to a provider,” according to Julie Carr Smyth, of the Associated Press. But in actuality the Biden Administration went even further to mandate that recipients counsel and refer for abortions.

NRLC strongly opposed the “proposed rule change that would eliminate the requirement that Title X funding recipients maintain a physical and financial separation of family planning from abortion activities. In addition, the rule change would illegally mandate that Title X recipients counsel and refer for abortion.”

In other words, the rule change “would allow the creation of an accounting gimmick that enable Title X funds to support abortion services,” as NRLC President Carol Tobias explained in a letter to HHS Secretary Xavier Becerra. It also violated long-standing federal  laws intended to protect the right of conscience.

Ohio Attorney General Dave Yost and 11 other attorneys general then sued last October. “Yost, in the statement, said the purpose ‘was to build walls to prevent the funding of abortion with taxpayer money – which remains illegal,’” John Caniglia for Cleveland.com reported.

“You can’t ‘follow the money’ when all the money is dumped into one pot and mixed together,” Yost said.

U.S. District Judge Timothy Black had no patience for that argument. In January, Black “denied a preliminary injunction that would have temporarily paused the rules,” Smith wrote. “The 12 states appealed his decision to the 6th Circuit, which said they failed to prove they’d be irreparably harmed by the rules going into effect.”

That meant that federally funded family planning clinics can continue to make abortion referrals. Which brings us to today’s hearing.  

The state, Koeninger wrote, “claimed it will be irreparably injured unless the rule is enjoined because more family-planning providers will be able to participate in the program, thus depriving it of federal funding for its health department.”

Sure enough…

Ohio Solicitor General Ben Flowers argued Thursday on behalf of the states and told the three-judge panel at the outset it was a “strange case” because the emergence of new evidence effectively defeated the federal government’s argument.

Flowers pointed out in the time since the new rule has gone into effect and Planned Parenthood reentered the program, Ohio has lost over $1.7 million in Title X funding, a fact not disputed by his counterpart and which Flowers said shows the state has been irreparably harmed by the rule.

“Under the final rule, a provider can offer Title X [services] and abortions in the same building,” the attorney said, “and can even make referrals to themselves.”

There was intense back and forth about what constituted “separation.” Justice Department attorney Courtney Dixon argued “HHS found the 2019 physical separation requirements were a costly, burdensome solution for a problem that didn’t exist.”

But Judge Larsen pressed Larsen “for a definitive statement on whether physical separation was required and seemed exasperated by her responses,” according to Koeninger.

 “What is the separation? What do you want?” she asked.

“It’s not a one-size-fits-all approach,” Dixon answered.

In his rebuttal, Flowers pounced on his opponent’s indecisiveness and drove home the point.

“They do not have any [separation] line at all,” he told the panel. “What it amounts to is an ‘I know it when I see it’ test.”

“There is no doubt the whole point of this [rule] was to bring abortion providers back into the Title X program,” Flowers concluded.

No timetable has been set for the panel’s opinion.