A judge for the US District Court for the District of Columbia [official website] ruled [text, PDF] Monday that the Department of Health and Human Services (HHS) [official website] was not required to engage in a formal notice-and-comment rule making procedure before shifting the criterion for evaluating grant applications under Title X of the Public Health Service Act [text, PDF].
Title X allows the Secretary of HHS to award grants to “public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” Three Planned Parenthood affiliates and the National Family Planning and Reproductive Health Association initiated the lawsuit in February after HHS passed the 2018 Announcement.
The Announcement added an additional factor to guide the agency’s evaluation of grant proposals. Mainly, the criterion states that HHS will evaluate grant applications with “‘a meaningful emphasis on … the benefits of avoiding sexual risk,’ easier access to primary health care, ‘increasing family participation,’ and ‘cooperation with … faith based organizations.'” The organizations fear the criterion places too much emphasis on faith-based groups that counsel abstinence rather than safe sex practices and family planning.
The organizations argued that HHS should have undergone notice-and-comment rule making before adding the language to the evaluation criterion. Judge Trevor McFadden pushed back against this argument, saying the additional criterion does not constitute “final agency action” and is better characterized as a shift in agency procedure, which is not reviewable under the Administrative Procedure Act (APA) [text, PDF]. Because of this, HHS was not required to engage in notice and comment rule-making before passing the criterion. Had HHS made a legislative, rather than procedural, change concerning Title X, then it likely would have been required to undergo formal rule making procedures.