Judges weigh Trump’s family planning funding rule

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• Judy Woodruff:

  The fight over family planning takes to the courts.

  Earlier this summer, the Trump administration won an important victory for its new rule ending federal funding to clinics that make abortion referrals. The rules have placed new restrictions on a program known as Title X that is used by taxpayer-funded clinics.

  Today, the case went to a larger panel of federal appellate judges in San Francisco.

  John Yang gets an update on the case and the arguments.

• John Yang:

  Judy, more than 900 clinics, just under half of them run by Planned Parenthood, in several states have pulled out of the program, giving up federal funds, rather than complying with the new regulations.

  The money goes to pay for such reproductive health services as birth control, STD testing and treatment and screenings for cervical and breast cancer for low-income people.

  The issue in today's hearing before an 11-judge panel is whether the new federal rule may remain in place while legal challenges work their way through the courts.

  Special correspondent Sarah Varney of Kaiser Health News was in the San Francisco courtroom this afternoon.

  And we should note that Kaiser Health News is not affiliated with Kaiser Permanente.

  Sarah, in order to prevail, the opponents of this rule have got to convince the judges that irreparable damage or harm would be done by this rule going into effect while it's still being challenged.

  How did they try to argue that?

• Sarah Varney:

  (AUDIO GAP) question.

  Some of the justices did ask, are we allowed to essentially look at news reports that we're seeing now that are showing us that some of the predictions from the secretary of health and human services, when they were promulgating these rules, who then said, oh, this rule will not have deleterious effect on access to Title X services?

  So they seem to be wondering whether or not they can actually look at this whether of, now that the rule is in effect, we have mentioned — as you mentioned, there were 910 clinics that have closed. Planned Parenthood served about 40 percent of them.

  So we know that at least half of the people who use Title X services have been affected. So it wasn't until the very end of the arguments that they were even able to get into this.

  Now, the government said, well, if you look at it a different way, just a small percentage of the overall clinics have actually closed, so we're still — we're still in the ball game here.

• JOHN YANG:

  You say that these clinics have closed. Did they actually shut down or they have just withdrawn from the program?

• Sarah Varney:

  I'm sorry, yes, that they have just withdrawn from the program.

• John Yang:

  And some have closed, though, but a smaller number?

• Sarah Varney:

  Most of these clinics are still open.

  But if you are a Title X recipient, if you're a Title X patient, when you go into these clinics now, you may be asked to pay a co-pay. Some of these clinics are scaling back on their staff and their hours.

  I spoke to the woman who runs Planned Parenthood in Utah. They're a state where they had three Planned Parenthood clinics in the Title X program. All of them are no longer participating. And last month, they had about $300,000 of unreimbursed medical expenses.

  So it's unclear, as these months go on, how much longer some of these clinics are going to be able to stay open.

• John Yang:

  And what was the government's response to that? How did they counter those arguments?

• Sarah Varney:

  They say that this — it's still not a majority of people — of clinics in the program that have pulled out, and that they are going to be issuing additional grants, supplemental grants.

  So for all of the money that's been refused, has been turned back to the government, they're going to take that and they're going to issue it to other grantees, who are going to be able to provide some services.

• John Yang:

  Sarah, you were telling me earlier that there was pretty lively questioning from the judges to the lawyers on both sides.

  What sorts of questions were they asking?

• Sarah Varney:

  Well, the main challenge for the government seemed to be this question of — the justices seemed eager to get into the merits of this case.

  So this hearing today was really about whether or not these rules can stay in effect until the lower courts can consider the merits of the case, but a number of justices said, let's just do it. Let's just talk about the merits of the case.

  So, for the government attorney, the questions that he mostly got was these questions of, you're telling clinics that they can counsel on abortion, but then they can't refer about abortion.

  One of the older male justices said, look, it just doesn't make — it's just common sense that, when I go to the doctor, if I'm getting counseled on something, and I need a referral, then my doctor gives me a referral.

  So, they — the justices seemed eager to have the government try and defend these changes to the rule. They also seemed to be interested in this question of whether or not the authority that — the government has the authority to make these kinds of changes.

  And one of the justices did say, look, well, elections have consequences. We understand that, when a new administration comes in, they can change environmental policy, they can change policy around reproductive family planning, but they do have to have some reason to do it, and it can't just be capricious or arbitrary.

• John Yang:

  And there's a bigger deadline coming up in this next march. What is that?

• Sarah Varney:

  That's right.

  So, in March of 2020, another rule comes into effect that's part of these larger Title X changes, which essentially says any clinic that offers abortion has to be physical — has a physically separate building and be a financially separate entity from one that is just providing the counseling or birth control services or cervical cancer screening, for example.

  So, already, this is obviously a huge issue for Planned Parenthood. They're no longer in the program. But there's a number of other clinics, I mean, hundreds and hundreds of other clinics, that also offer abortion services. So they will have to decide whether or not they can actually stand up a whole separate facility.

  In the initial assertions by the government, the government said this will cost perhaps around $30,000. So, today, in court, that number came up. And the plaintiffs said well, there's simply no way that you could stand up a whole new medical clinic for $30,000.

  So there's a sense that, come March 2020, a number of these clinics are going to withdraw from the program, and we will have to see whether or not the government can find other clinics willing to step in to fill the gap.

• John Yang:

  Special correspondent Sarah Varney of Kaiser Health News, thank you very much.

• Sarah Varney:

  Thank you.