Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 1 of 39

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PLANNED PARENTHOOD OF WISCONSIN, INC.,
302 North Jackson Street
Milwaukee, WI 53202
PLANNED PARENTHOOD OF GREATER OHIO,
206 E. State Street
Columbus, OH 43215

Civil Action No. 18 Civ. ________
1035

PLANNED PARENTHOOD ASSOCIATION OF
UTAH
654 South 900 East
Salt Lake City, UT 84102
Plaintiffs,
v.
ALEX M. AZAR, in his official capacity as United
States Secretary of Health and Human Services,
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
VALERIE HUBER, in her official capacity as Acting
Deputy Assistant Secretary for the Office of
Population Affairs,
U.S. Department of Health and Human Services
1101 Wootton Parkway, Ste 700 Rockville, MD 20852
Defendants.

COMPLAINT
Plaintiffs, by and through their attorneys, hereby allege as follows:
INTRODUCTION
1.

Plaintiffs bring this action to defend a family planning assistance program that

provides essential reproductive health care for millions of Americans each year. Title X of the
Public Health Service Act was created to provide comprehensive family planning services to

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 2 of 39

low-income patients. But now, the government seeks to shift the Title X program away from its
core statutory purpose, by dramatically altering the criteria that determine who can participate in
the program. Those unexplained and unjustified changes contravene the Title X program as
Congress intended it, violate the government’s own existing regulations, and threaten
devastating, irreparable harms to the very patients Title X was meant to help.
2.

Enacted a half century ago to make good on President Nixon’s promise that “no

American woman should be denied access to family planning assistance because of her
economic condition,” Title X provides hundreds of millions of dollars each year “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.” 42 U.S.C. § 300(a).
Congress created the Title X program to ensure that all people, and especially low-income
women, have access to family planning care.
3.

The Title X statute sets forth the considerations that the Department of Health and

Human Services (“HHS”) “shall take into account” in awarding grants to accomplish Title X’s
aims, including “the number of patients to be served,” and the capacity of the applicant to use
Title X funds. 42 U.S.C. § 300(b). HHS has also issued longstanding Title X regulations that
further articulate Title X’s commitment to providing “a broad range of acceptable and effective
medically approved family planning methods,” including contraception. 42 C.F.R. § 59.5(a)-(b).
Those regulations provide that Title X grants will be awarded based on a set of seven criteria—
such as the number of patients served, the demonstrated need for services, and the capacity of the
applicant—that are drawn directly from the Title X statute. See 42 C.F.R. § 59.7.
4.

This statutory and regulatory regime has remained consistent from the start.

Accordingly, each and every year, when HHS has issued a “Funding Opportunity

-2-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 3 of 39

Announcement” (“FOA”) for Title X funding, the “application review criteria” in the FOA have
been consistent with the Title X statute and with HHS regulations. That consistency has
benefited millions of Americans who receive subsidized comprehensive family planning care
from qualified Title X grantees like Plaintiffs.
5.

Plaintiffs are all dedicated to Title X’s core mission. They are Planned

Parenthood affiliates from Wisconsin, Ohio, and Utah who have each received Title X grants for
decades and who use those funds to serve Americans from diverse regions and backgrounds,
from urban centers like Milwaukee and Cleveland to rural areas like Appalachia and southern
Utah. Each year, Plaintiffs serve many tens of thousands of patients with the help of Title X
funds, especially low-income and rural women who often have no other affordable option for
reproductive health care. Plaintiffs provide comprehensive birth control options, cancer
screenings, sexually transmitted infection (“STI”) testing, and other critical services. Plaintiffs
have spent years developing clinical best practices, building an unparalleled network of health
centers dedicated specifically to reproductive health, and establishing a reputation for highquality, accessible, and nonjudgmental care. Plaintiffs routinely offer weekend and after-work
hours, same-day appointments, and other measures to make their services broadly accessible.
6.

Despite the success and stability of the Title X program, in late February 2018,

HHS announced dramatic changes to the longstanding Title X grantmaking criteria. Specifically,
the FY2018 FOA for Title X funds shifts the “application review criteria” on which funding
decisions are based away from what the statute and regulations require. Under HHS’s changes,
those “application review criteria” now give the most weight to new “program priorities” and
“key issues,” such as placing “meaningful emphasis” on abstinence as an approach to birth
control (even for adults), providing onsite primary care, and cooperating with faith-based

-3-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 4 of 39

organizations. Rather than focusing on acceptable and effective family planning methods, the
new FOA omits entirely any reference to contraception or to HHS’s own previously published
standards for evidence-based family planning care. Those changes are designed to disadvantage
reproductive health care providers like Plaintiffs—and ultimately, to warp the nature of the Title
X program itself and undermine its intended function of supporting comprehensive family
planning care.
7.

HHS’s changes to the application process for Title X funds violate the

Administrative Procedure Act, 5 U.S.C. § 701 et seq., in at least three ways.
8.

First, HHS’s changes are contrary to law—both to the Title X statute itself, and to

the regulations promulgated thereunder. The Title X statute, along with HHS’s regulations,
limits the factors HHS may consider in awarding grants to achieve Title X’s aims. And the
statute and regulations require that all funded projects provide patients with “a broad range of
acceptable and effective family planning methods and services,” including contraception and
other family planning and reproductive health services. 42 U.S.C. § 300(a); accord 42 C.F.R.
§ 59.5(a)(1); see also, e.g., id. § 59.5(b)(1) (grantees generally must “provide for the effective
usage of contraceptive devices and practices”). This longstanding framework defines the Title X
program’s core commitment: providing comprehensive and nondirective family planning care to
all who need it. HHS’s new FOA would fundamentally reshape Title X, shifting funds away
from applicants who fulfill Title X’s mission as Congress intended it and as HHS’s regulations
require.
9.

Second, HHS’s changes to the FOA are arbitrary and capricious. HHS has never

explained the basis for those changes, or provided reasoning for why the considerations listed in
the “program priorities” and “key issues” sections of the FOA should now be the largest factor in

-4-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 5 of 39

determining a Title X applicant’s formal application score. Nor did HHS attempt to justify why
it was deviating from its longstanding prior practice.
10.

Third, even if the dramatic changes to the Title X program were lawful (which

they are not), and even if HHS had offered a reasoned explanation for them (which it did not),
HHS failed to engage in notice-and-comment rulemaking before adding an entirely new
“application review criterion” to the seven criteria that HHS may consider under its own
longstanding regulations. Going back decades, all previous FOAs have matched the seven
criteria in 42 C.F.R. § 59.7 point for point. At the very least, HHS was required to use noticeand-comment rulemaking to alter the application review criteria as set forth in its longstanding
regulations. Because HHS did not do so, its changes must be set aside.
11.

HHS’s attempt to amend the Title X program through the imposition of new

application review criteria threatens Plaintiffs and the tens of thousands of patients they serve
with serious harms because it improperly forces Plaintiffs to compete for Title X funds with one
hand tied behind their backs. Competing applicants, like religious hospitals and organizations
that focus on abstinence-only education or primary care services, may now score higher than
Plaintiffs, who are committed to providing comprehensive, evidence-based family planning care.
Plaintiffs thus face the prospect of losing some or all of the Title X funds on which they and their
patients depend—especially in Wisconsin and Ohio, where competing applications are virtually
assured—because they will be penalized for their commitment to Title X’s core mission.
12.

Such an unjustified loss of Title X funds would be a disaster for the low-income

patients in Wisconsin, Ohio, and Utah whom Plaintiffs serve. Title X funds form a significant
percentage of Plaintiffs’ budgets, and losing those funds would result in multi-million-dollar
budget shortfalls. Losing Title X funds would mean cuts in services and hours, staff layoffs, and

-5-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 6 of 39

even health center closures, especially in the most underserved rural areas. All of those
consequences would irreparably harm Plaintiffs and portend grave health consequences for their
patients who lose access to care.
13.

This Court should act to prevent these harms. Title X reflects Congress’s

judgment that everyone deserves comprehensive reproductive health care, including a full range
of family planning methods and services. HHS’s own regulations have long served that goal.
But HHS’s changes to the FY2018 FOA are contrary to Title X and HHS regulations, arbitrary
and capricious, and at odds with the fundamental purpose of Title X. Defendants should be
enjoined from evaluating Title X applications under HHS’s unlawful new FOA.
PARTIES
14.

Plaintiff Planned Parenthood of Wisconsin, Inc. (“PPWI”) is a not-for-profit

corporation organized under the laws of Wisconsin and, as discussed further below, is a memberaffiliate of Planned Parenthood Federation of America (“PPFA”).
15.

Plaintiff Planned Parenthood of Greater Ohio (“PPGOH”) is a not-for-profit

corporation organized under the laws of Ohio and is also a member-affiliate of PPFA.
16.

Plaintiff Planned Parenthood Association of Utah (“PPAU”) is a not-for-profit

corporation organized under the laws of Utah and is also a member-affiliate of PPFA.
17.

Defendant Alex M. Azar is the United States Secretary of Health and Human

Services. He is sued in his official capacity.
18.

Defendant Valerie Huber is the acting Deputy Assistant Secretary for the Office

of Population Affairs, the office within the Department of Health and Human Services that
administers the Title X program. She is sued in her official capacity.

-6-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 7 of 39

JURISDICTION AND VENUE
19.

The Court has subject matter jurisdiction over this Administrative Procedure Act

(“APA”) action under 28 U.S.C. § 1331. The Court is authorized to issue the relief sought here
under the APA, 5 U.S.C. §§ 702, 705, 706, and the Declaratory Judgment Act, 28 U.S.C.
§§ 2201, 2202.
20.

Venue is proper under 28 U.S.C. § 1391(e) because the defendants, who are sued

in their official capacity as HHS officials, reside in Washington, D.C.
FACTUAL ALLEGATIONS
I.

CONGRESS FUNDS EFFECTIVE AND COMPREHENSIVE FAMILY
PLANNING CARE WITH TITLE X
21.

Enacted in 1970, the Family Planning Program, Title X of the Public Health

Service Act (42 U.S.C. § 300 et seq.), makes family planning services available for free or at low
cost to Americans in every State. Title X is the only domestic federal program devoted solely to
family planning for uninsured, underinsured, and low-income people. It funds a broad range of
services, including contraceptive services, information, and education; natural family planning
methods; infertility services; services to adolescents; STI and HIV testing and referral; basic
preventive care such as well-woman visits and breast and cervical cancer screenings; pregnancy
testing and counseling; and training for providers and clinic personnel. (The use of Title X funds
for abortion services is prohibited, 42 U.S.C. § 300a-6, and this case does not concern abortion.)
22.

The Title X program sought to fulfill President Nixon’s 1969 promise that “no

American woman should be denied access to family planning assistance because of her
economic condition.” The program arose from a growing recognition of the effects of
unintended childbearing on poverty levels, educational attainment, and adverse maternal and
child health outcomes—and of the fact that newly available contraceptive options like oral

-7-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 8 of 39

contraceptives (i.e., “the pill”) were unaffordable for too many Americans. When it passed with
broad bipartisan support, Congress declared that Title X’s “purpose” was “making
comprehensive voluntary family planning services readily available to all persons desiring such
services.” Pub. L. No. 91–572, § 2, 84 Stat. 1506 (1970).
23.

Title X requires that grant recipients “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).” 42 U.S.C. § 300(a).1 Elaborating on that
statutory requirement, HHS’s Title X regulations require that Title X projects “consist of the
educational, comprehensive medical, and social services necessary to aid individuals to
determine freely the number and spacing of their children.” 42 C.F.R. § 59.1. HHS’s Title X
regulations have always required grantees to provide a broad range of family planning options,
including contraception. To be awarded a Title X grant, a grantee “must … [p]rovide a broad
range of acceptable and effective medically approved family planning methods.” 42 C.F.R.
§ 59.5(a)(1). Moreover, absent an exception for good cause, grantees must also “[p]rovide for
medical services related to family planning (including … contraceptive supplies) …, and provide
for the effective usage of contraceptive devices and practices.” 42 C.F.R. § 59.5(b)(1). All of
those requirements have remained unchanged since HHS first promulgated its Title X regulations
in 1971, shortly after the statute was enacted. See 45 Fed. Reg. 37,433, 37,436-37,437 (June 3,
1980) (setting forth language of current regulation); compare 36 Fed. Reg. 18,465, 18,46618,467 (Sept. 15, 1971) (above terms all found at former 42 C.F.R. §§ 59.3, 59.5(d), (f), (g)).
24.

Title X also requires that the acceptance of any family planning services must be

“voluntary.” See 42 U.S.C. § 300a-5; accord id. § 300(a). Consistent with that statutory text, the
1

“Natural family planning,” as used in Title X, refers to a variety of methods of tracking
ovulation to avoid pregnancy.
-8-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 9 of 39

Title X regulations require that Title X services must be provided “without subjecting individuals
to any coercion to accept services or to employ or not to employ any particular methods of
family planning.” 42 C.F.R. § 59.5(a)(2). Moreover, Title X projects must “[p]rovide services
in a manner which protects the dignity of the individual.” Id. § 59.5(a)(3). A Title X patient’s
information “must be held confidential” by a grantee. Id. § 59.11. Again, these regulations have
remained unchanged for decades. See 45 Fed. Reg. at 37,437-37,438; compare 36 Fed. Reg. at
18,466-18,467 (former 42 C.F.R. §59.5(a)(3) and 59.10).
25.

The statute also sets forth particular criteria to be used to determine which

organizations will receive Title X funding. The statutory criteria provide that, “[i]n making
grants and contracts under this section the Secretary shall take into account the number of
patients to be served, the extent to which family planning services are needed locally, the relative
need of the applicant, and its capacity to make rapid and effective use of such assistance.” 42
U.S.C. § 300(b). Consistent with the statutory text, HHS’s regulations have provided, since the
inception of the Title X program, that HHS is permitted to take into account seven factors when
determining whether to award a Title X grant:
“(1) the number of patients, and, in particular, the number of low-income patients to be
served;
(2) the extent to which family planning services are needed locally;
(3) the relative need of the applicant;
(4) the capacity of the applicant to make rapid and effective use of the federal assistance;
(5) the adequacy of the applicant’s facilities and staff;
(6) the relative availability of non-federal resources within the community to be served
and the degree to which those resources are committed to the project; and
(7) the degree to which the project plan adequately provides for the requirements set forth
in these regulations.”

-9-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 10 of 39

42 C.F.R. § 59.7; compare 36 Fed. Reg. at 18,466-18,467 (providing for nearly identical set of
criteria). HHS’s official description of the Title X program further confirms that these seven
factors “are the criteria HHS uses to determine which family planning projects to fund and in
what amount.”2
26.

The Title X statute and regulations define the program’s fundamental mission of

supporting comprehensive family planning care, and constrain HHS from awarding Title X funds
based on considerations outside the criteria provided by Title X’s legal and regulatory
framework, which has remained unchanged for decades.
27.

Title X’s impact on the reproductive health of low-income Americans cannot be

overstated. Every year, Title X providers serve more than four million women, men, and young
people. In 2016, Title X centers served 2.8 million contraceptive patients, and Title X funds
helped provide 5.1 million STI tests, including 1.2 million confidential HIV tests, nearly 700,000
Pap tests, and nearly 1 million clinical breast exams. More than two thirds of people receiving
preventive care through the Title X program live in poverty and 88% have incomes that are at or
below 250% of the federal poverty level.
28.

Title X sites provide significantly better access to contraceptive care than public

non-Title X sites and private providers. Indeed, a study published by HHS administrators (the
“OPA Study”) showed that Title X providers do a better job overall than non-Title X centers in
providing safety-net reproductive health care that is consistent with current, evidence-based

2

HHS Office of Population Affairs, Program Requirements for Title X Funded Family
Planning Projects 9 (April 2014), https://www.hhs.gov/opa/sites/default/files/ogc-cleared-finalapril.pdf.
-10-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 11 of 39

clinical guidelines.3 As just one example, Title X sites are more likely to offer intra-uterine
devices (“IUDs”) and contraceptive implants onsite.4 Those contraceptive methods, often
grouped under the umbrella term “LARCs,” or long-acting reversible contraceptives, are by far
the most effective contraceptive methods.
29.

Title X’s impact on public health is also significant. Title X providers are critical

in the effort to identify and treat STIs, for example, screening for chlamydia and treating it early
to prevent infertility from an untreated infection. Title X sites are more likely than other public
non-Title X providers and private providers to follow chlamydia screening guidelines for testing
those most at risk for chlamydia.5 In addition to STI testing, Title X providers also perform
hundreds of thousands of screenings for breast, cervical, and testicular cancer each year.
30.

Title X’s role is even more important because many women seek out specialists

for their family planning care. Studies have shown that, even where women do have primary
care options available, they prefer to get reproductive health and family planning care from
clinicians who specialize in those areas—as Plaintiffs and most Title X providers do. As one
study explained, “[l]arge majorities of women … said that they chose the family planning clinic
because the staff is knowledgeable about—or easy to talk to about—sexual and reproductive
3

Carter, et al., Four aspects of the scope and quality of family planning services in US
publicly funded health centers: Results from a survey of health center administrators, 94 J.
Contraception 340 (2016), http://dx.doi.org/10.1016/j.contraception.2016.04.009.
4

See, e.g., Bocanegra, et al., Onsite Provision of Specialized Contraceptive Services: Does
Title X Funding Enhance Access?, J. Women’s Health (May 2014),
https://www.liebertpub.com/doi/full/10.1089/jwh.2013.4511 (finding IUD availability at 90% of
Title X clinics, as opposed to 51% of public non-Title X clinics and 38% of private clinics; and
finding onsite contraceptive implant availability at 58% of Title X clinics, as opposed to 19% of
public non-Title X clinics and 7% of private clinics).
5

Chow, et al., Comparison of adherence to chlamydia screening guidelines among Title X
providers and non-Title X providers in the California Family Planning, Access, Care, and
Treatment Program, J. Women’s Health (Aug. 2012),
https://www.ncbi.nlm.nih.gov/pubmed/22694761.
-11-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 12 of 39

issues or because the clinic makes it easy for them to get the contraceptive method they want,
and to do so directly, without having to make a separate trip to a pharmacy to have a prescription
filled.”6 Because healthy women of child-bearing age tend to seek out such specialized care,
Title X health centers facilitate a crucial “touch” (and the potential for referrals) with medical
personnel that might otherwise not have happened.
31.

The Title X program’s impact is particularly significant in rural areas, and for

communities of color. Of the 4 million patients served across the Nation by Title X health
centers in 2016, over half were people of color. And in rural areas, Title X health centers are
often the only provider of reproductive health services for low-income individuals. For example,
in one out of five rural counties in America, a Title-X-backed health center is the only
comprehensive family planning option for people without the means to see a private physician.
II.

HHS AWARDS TITLE X FUNDS BASED ON LONGSTANDING CRITERIA
32.

The basic function of Title X is to fund family planning services for people who

are unable to pay for them. Title X accomplishes this by providing funding for grantees who
either offer direct services to low-income Americans or contract with sub-grantees to offer those
services, or both. Title X funds operate as a “payer of last resort” for grantees and sub-grantees,
allowing them to serve all comers by charging on a sliding scale, based on ability to pay, and to
offer free or reduced-price services to patients who are not covered by Medicaid or private
insurance and cannot pay out of pocket. Title X makes such broad-based care for low-income
people possible by filling the financial gaps for grantees.
33.

In recent years, Congress has appropriated nearly $300 million per year under

Title X to help fund reproductive health care for low-income Americans. Funding is distributed
6

E.g., Frost, et al., Specialized Family Planning Clinics in the United States: Why Women
Choose Them and Their Role in Meeting Women's Health Care Needs, 22 Women’s Health
Issues 519 (2012), https://doi.org/10.1016/j.whi.2012.09.002.
-12-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 13 of 39

through competitively awarded grants, and, as discussed above, funding decisions must be based
on the criteria set forth in Title X and regulations promulgated thereunder. Since at least 1990,
HHS has issued Funding Opportunity Announcements, or FOAs, that invite applications for Title
X funds and that govern the application process for Title X funding.
34.

Each FOA contains “application review criteria” that are used to score

applications for Title X funding. For the past 30 years, the “application review criteria” in every
single Title X FOA have tracked the seven criteria listed in the longstanding Title X regulation.
See 42 C.F.R. § 59.7. Although some explanatory text has been added to the FOA over time, and
HHS began assigning point values to each of the seven criteria around 2001, the substance of the
criteria themselves has not changed, and until now has directly reflected the underlying
regulation, 42 C.F.R. § 59.7, which in turn reflects criteria for awarding funds that are provided
in the Title X statute, see 42 U.S.C. § 300(b).
35.

In addition to the application review criteria, FOAs typically contain “program

priorities” and “key issues” sections, which list various specific suggestions and goals for
applicants to consider in developing their project plans. But under every Administration until
now, the “program priorities” and “key issues” sections of prior FOAs have never been part of
the application review criteria, on which actual funding decisions are based.
36.

After an initial period of “eligibility screening” (which on information and belief

is no more than a few weeks), HHS forwards Title X applications to independent review panels
composed of reproductive health experts from within and outside the federal government. The
panels then evaluate the applications in light of the application review criteria. As mentioned, in
more recent years, each FOA has assigned a point value to each application review criterion,
totaling 100 points, with no criterion ever being worth more than 20 points (and almost all being

-13-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 14 of 39

worth between 10 and 20). In its review, the independent review panels score the applications in
light of the point allotment for each criterion. The reviewers then forward their scores to HHS
administrators.
III.

FOR DECADES, PLAINTIFFS HAVE FULFILLED THE CORE MISSION OF
TITLE X
37.

Since the inception of Title X a half century ago, PPFA’s nationwide network of

affiliates—including Plaintiffs—has played a central role in fulfilling Title X’s mission.
38.

Founded more than a century ago, Planned Parenthood is at the forefront of

providing high-quality reproductive health care to individuals and communities facing serious
barriers to obtaining such care—especially low-income individuals, individuals in rural and other
medically underserved areas, and communities of color. PPFA’s 56 member-affiliates operate
more than 600 health centers across the Nation and serve approximately 2.4 million patients each
year, providing vital health care services such as contraception, cancer screenings, testing and
treatment for STIs, sexual health information, and abortion services. Planned Parenthood health
centers provide comprehensive, nonjudgmental care and education pursuant to current, evidencebased guidelines.
39.

In 2015, PPFA-affiliated health centers served more than 40% of the patients who

received care subsidized by Title X. That number is significantly higher for Plaintiffs, especially
in Utah and Wisconsin, where PPWI and PPAU serve the vast majority of all such patients.
40.

PPFA-affiliated centers focus on providing high-quality, accessible reproductive

health care. PPFA-affiliated centers play a different role than federally qualified health centers
(“FQHCs”), which provide a wide range of primary, behavioral, and dental care in medically
underserved areas, and which are eligible to receive federal funding under a different section of
the same larger statute that includes Title X. Unlike most FQHCs, PPFA-affiliated centers
-14-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 15 of 39

specialize in reproductive health care, and consistently provide the full range of birth-control
methods onsite, consistently offer LARCs on a same-day basis, and consistently offer shorter
wait times and longer health center hours.7 Indeed, the OPA Study noted above, which was
published by HHS administrators, showed that Planned Parenthood health centers provided the
highest level of safety-net reproductive health and family planning care under the Title X
program across a number of metrics. See supra ¶ 28 & n.3.
41.

Plaintiffs are accredited PPFA member-affiliates in Wisconsin, Ohio, and Utah,

respectively. They exemplify how PPFA-affiliated centers perform an irreplaceable function in
the Title X regime, especially (but not only) with respect to access to contraception for rural and
low-income women.
42.

Plaintiffs’ health centers offer a full range of reproductive health care services:

well-woman preventive care visits, breast exams, Pap smears, general health assessment, a wide
range of contraception methods, risk assessment for pregnant women to screen for high-risk
issues and referral services for pregnant women, pregnancy testing, urinary tract infection
treatment, and cervical and testicular cancer screening. Care at Plaintiffs’ health centers is
typically provided by specially trained nurse practitioners, using standards and protocols for
effective, appropriate, confidential care that are developed by PPFA based on medical evidence.
Plaintiffs’ health centers also offer culturally competent services for LGBTQ people.

7

See, e.g., Zolna & Frost, Publicly Funded Family Planning Clinics in 2015: Patterns and
Trends in Service Delivery Practices and Protocols, The Guttmacher Institute (2016),
https://www.guttmacher.org/sites/default/files/report_pdf/publicly-funded-family-planningclinic-survey-2015_1.pdf; see also Hasstedt, Understanding Planned Parenthood’s Critical Role
in the Nation’s Family Planning Safety Net, Guttmacher Institute (January 12, 2017),
https://www.guttmacher.org/gpr/2017/01/understanding-planned-parenthoods-critical-rolenations-family-planning-safety-net.
-15-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 16 of 39

43.

Both HHS studies (i.e., the OPA Study mentioned above) and Plaintiffs’ internal

studies have confirmed that Plaintiffs’ health centers are more accessible than other safety-net
providers such as FQHCs or health department clinics. Plaintiffs’ centers offer more STI testing
and more contraceptive options than safety-net providers like FQHCs. Plaintiffs’ centers
generally offer same-day IUD insertion and same-day access to other LARCs, while most other
centers require an appointment, if they provide those services at all. Plaintiffs’ centers also offer
weekend and after-work hours, 24-hour online booking, and walk-in appointments for Title X
covered services. They have telephonic translation services in 25 different languages, and
bilingual staff in many areas.
A.

Planned Parenthood of Wisconsin

44.

Established in 1935, PPWI is the leading provider of family planning and

reproductive health care and education in Wisconsin. PPWI operates 21 family planning health
centers in 15 counties throughout Wisconsin. Nine of those are Title X health centers. Those
centers rely on Title X funding for between 23% and 33% of their entire revenue. PPWI’s
centers serve the most populous southeastern counties, including urban Milwaukee, as well as
rural areas in the eastern and central parts of the State. PPWI also sub-grants some Title X
funding to two delegates that operate several clinics in the western and southern regions of the
State, as permitted by Title X.
45.

In 2017 alone, PPWI had more than 110,000 patient visits, provided almost

140,000 units of contraceptives, performed more than 91,000 STI tests, and conducted almost
8,000 breast or cervical cancer screenings. Title X funding subsidized much of this care. Title X
allowed PPWI to provide more than 55,000 STI tests and 10,000 HIV tests to low-income
patients. Almost 5,000 low-income women were able to obtain cervical cancer screenings, and

-16-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 17 of 39

more than 30,000 accessed birth control services, including 8,000 who chose oral contraceptives
and 10,000 who chose IUDs or LARCs.
46.

In addition to providing family planning care to tens of thousands of

Wisconsinites, PPWI conducts outreach and provides sex education that is comprehensive, ageappropriate, medically accurate, and culturally competent to adolescent and adult audiences.
Title X funding supports approximately 50% of PPWI’s education work. Among other things,
PPWI uses Title X funding to support its highly-successful Promotoras Comunitarias Training
Program, which was created to address the lack of access to reproductive health care and
sexuality information in the Latino community. “Promotoras” are Latina women who receive
training to provide peer-to-peer health education on HIV prevention, STIs, talking to children
about sexuality, self-esteem, women’s health, and other topics.
47.

Many of the areas PPWI serves have been deemed Medically Underserved Areas

(MUAs) or Health Professional Shortage Areas (HPSAs).8 In Milwaukee County, the most
populous county in Wisconsin, more than 32% of women ages 18 to 44 live in an MUA and
more than 34% live in a primary care HPSA. PPWI serves more than 23,000 women ages 18 to
44 at its six health centers across the county.

8

MUA designations are based on the Index of Medical Underservice (“IMU”), which is
calculated based on four criteria: (1) the population to provider ratio; (2) the percent of the
population below the federal poverty level, (3) the percent of the population over age 65; and (4)
the infant mortality rate. IMUs range from 0-100, where zero represents the completely
underserved. Areas with IMUs of 62.0 or less qualify for designation as an MUA. See 42 C.F.R.
§ 51c.102. Health Professional Shortage Areas (“HPSAs”) are areas and population groups
experiencing a shortage of health professionals—i.e., primary care, mental health, or dental
providers. The primary factor used to determine an HPSA designation is the number of health
professionals relative to the population with consideration of high need. For primary medical
care, the population-to-provider ratio must be at least 3,500 to 1 (or 3,000 to 1 if there are
unusually high needs in the community). See 42 C.F.R. § 5, App. A.
-17-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 18 of 39

48.

PPWI also provides critical health care services to rural patients whose needs

would otherwise go unmet. In seven of the fifteen counties with PPWI clinics (specifically,
Columbia, Manitowoc, Racine, Sheboygan, Walworth, Washington, and Winnebago),
underserved individuals would have no accessible family planning options if those clinics closed.
Another four counties (Dane, Outagamie, Waukesha, and Wood) have only one alternative
provider of family planning services for low-income people.
49.

PPWI has received Title X funds to support its work since the first year that

grants were provided under the program. In the most recent award year, PPWI received $2.8
million in Title X funds for its own use, and an additional $700,000 for its two sub-grantees.
This funding enabled 36,000 patients to receive free or subsidized care from PPWI and its
delegates, and literally kept the doors open at numerous rural health centers.
50.

There is no other provider network in Wisconsin with the capacity to provide

comprehensive family planning services for tens of thousands of low-income people, as PPWI
does. The state health department lacks that capacity. FQHCs—as mentioned above, federally
funded primary care centers in underserved areas—also lack that capacity, and indeed, in
Wisconsin FQHCs do not even receive Title X funds from HHS.
51.

In fact, PPWI centers have developed strong working relationships whereby they

refer their patients to FQHCs or other primary care facilities when a need arises. Conversely,
FQHCs and primary care providers frequently refer their patients to PPWI for any reproductive
health and family planning needs.
B.

Planned Parenthood of Greater Ohio

52.

Established in 1966, PPGOH is the leading provider of family planning and

reproductive health care and education in its Ohio service area. PPGOH operates 17 Title X

-18-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 19 of 39

health centers across the state, and serves patients from 68 of Ohio’s 80 counties, from Cleveland
and Ohio’s industrial north to the communities of Appalachia in Ohio’s rural southeast.
53.

PPGOH had nearly 120,000 patient visits in the 2017 fiscal year. That year,

PPGOH provided more than 50,000 patients with contraception, including tens of thousands of
oral contraceptives and NuvaRing cycles, more than 2,000 IUD insertions, and more than 21,000
hormonal birth control injections. PPGOH also performed more than 125,000 STI tests, more
than 13,000 HIV tests, more than 26,000 pregnancy tests, almost 4,000 cervical cancer
screenings via Pap smear, and more than 4,000 breast cancer screenings. PPGOH served over
60% of the Ohioans who benefitted from Title X in 2017, and used Title X to subsidize care for
about a third of its patients.
54.

PPGOH also conducts extensive outreach and provides sex education that is

comprehensive, age-appropriate, medically accurate, and culturally competent to adolescent and
adult audiences, and this work is partially subsidized by Title X funds as permitted by the
program. These outreach efforts, at local community centers, health centers, and schools, are the
primary way that PPGOH reaches underserved rural areas, especially Appalachia. PPGOH’s
research shows that a significant number of patients at PPGOH centers were first engaged
through these outreach and education efforts. Overall, PPGOH engaged at least 34,000 Ohioans
through education and outreach.
55.

PPGOH has received Title X funds to support its work for decades, and has been

a direct grantee since 1974. In FY2017, PPGOH received $4.2 million in Title X funds, and
PPGOH health centers served about twice as many patients using Title X funds as did FQHCs or
State health centers. Tens of thousands of PPGOH patients are able to receive free or subsidized
care by virtue of Title X funding.

-19-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 20 of 39

56.

There is no other provider network in PPGOH’s service area with the capacity to

provide comprehensive family planning services for tens of thousands of low-income people, as
PPGOH does.
C.

Planned Parenthood Association of Utah

57.

Established in 1970, PPAU is the leading provider of family planning and

reproductive health care and education in Utah. PPAU operates seven Title X health centers
across the state, from Logan in the north to St. George on the southern border with Arizona.
58.

PPAU delivered health care to nearly 46,000 patients in FY2017, including more

than 36,000 through Title X. PPAU served the vast majority of all patients benefitting from Title
X dollars in Utah in 2017, and used Title X to subsidize contraception, STI tests, Pap tests, wellwoman visits, pregnancy tests, and HPV vaccines for its patients.
59.

Because of the rural nature of the state, PPAU now offers tele-medical services at

some centers so that even patients in rural parts of the state can have same-day access to
clinicians. Since 1983, PPAU has also operated a rural health program in which it pays rural
health care providers to provide family planning services to patients who would otherwise not be
able to afford care.
60.

PPAU also conducts outreach and provides comprehensive sexuality education

that is age-appropriate, medically accurate, and culturally competent to adolescent and adult
audiences, including programs related to LGBTQ youth and for parents of adolescents. PPAU’s
successful “Growing Up Comes First” program for fifth and sixth graders is supported by Title X
funds as permitted by the program.
61.

PPAU has received Title X funds to support its work since Title X’s inception

almost without interruption, and has been the sole grantee in Utah since the 1980s. In the most

-20-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 21 of 39

recent award year, PPAU received almost $2 million in Title X funds. Tens of thousands of
PPAU patients are able to receive no-cost or subsidized care by virtue of Title X funding.
62.

There is no other provider network in Utah with the capacity to provide

comprehensive family planning services for tens of thousands of low-income people, as PPAU
does. The state health department lacks that capacity. FQHCs in Utah lack that capacity, and
have not even received Title X funds from HHS. In fact, FQHCs generally refer patients to
PPAU to meet their reproductive health needs.
63.

In light of their extensive networks, their commitment to high-quality care and

accessibility, and their decades of experience serving low-income women, Plaintiffs have
developed a deserved reputation as the premier provider for reproductive health services in their
States, especially for those who cannot afford private care. In this way, Plaintiffs fulfill the core
mission of Title X: providing comprehensive family planning and reproductive care for lowincome Americans.
IV.

THE ADMINISTRATION ISSUES A NEW FOA THAT CHANGES THE
APPLICATION REVIEW CRITERIA FOR TITLE X FUNDING AND ALTERS
THE TITLE X PROGRAM ITSELF
64.

The FOA that is the subject of this lawsuit is not the only step that the current

Administration has taken to emphasize discredited reproductive health strategies like abstinenceonly education (which this Administration and others have rebranded as “sexual risk avoidance”)
over access to contraception. In October 2017, for example, the Administration canceled a wellsupported rule requiring employers to provide insurance coverage for contraception, including
more expensive LARCs, despite the consensus among experts in the fields of medicine and
public health that LARCs, which are 99% effective, are a uniquely effective form of birth control
for sexually active people. HHS also issued a surprise termination of multi-year funding for the
Teen Pregnancy Prevention Program (“TPPP”), a program designed to fund a wide range of
-21-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 22 of 39

interventions that have been proven effective in reducing teen pregnancy. HHS then offered a
new FOA for that program that attempts to remake the TPPP into a program that supports
abstinence-only education, which has been proven ineffective at preventing unintended
pregnancies or the spread of STIs.
65.

Those actions and others are intended to implement senior Administration

officials’ long-held policy goals, in particular to replace a focus on effective contraception with
an emphasis on abstaining from sex. Defendant Huber, prior to her work at HHS, worked in
Ohio and nationally as an advocate for abstinence-only sex education. Researchers at Case
Western Reserve University found that the sexual education programs Ms. Huber ran and
promoted while working in Ohio state government provided “false and misleading information”
and presented “religious convictions as scientific fact.”9
66.

In 2017, HHS announced that it was terminating all multi-year grants under Title

X. As a result, even though competitive Title X grants had previously been awarded on
overlapping three-year cycles, all Title X grantees would need to submit a new competitive
application for Title X funds in FY2018. In February 2018, HHS announced that it would
provide “continuation funding” for the terminated grants through September 2018, when it
expected to issue awards under its new FY2018 FOA.10

9

Frank, Report on Abstinence-Only-Until-Marriage Programs in Ohio, Case Western
Reserve University (2005), available at http://www.aidstaskforce.org/wpcontent/uploads/2010/12/Abstinence_Report_June051.pdf.
10

The FOA at issue purports to be for FY2018, and involves funds appropriated by
Congress for FY2018. However, HHS has stated that it intends to make funding available under
the FOA no earlier than September 1, 2018—one month before the start of the 2019 fiscal year.
Despite the fact that it appears to cover only a single month of FY2018 funding, the FOA is
referred to in this Complaint as the “FY2018 FOA.”
-22-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 23 of 39

67.

At the same time, HHS issued the FY2018 FOA (“the FOA”), which dramatically

and impermissibly alters the Title X program.11
68.

Most obviously, HHS added a new, eighth application review criterion, “criterion

(h),” to the set of seven permissible criteria provided by longstanding HHS regulations.
69.

Criterion (h) provides that 25 points out of 100 total will be assessed based on

“[t]he degree to which the project plan adequately provides for the effective and efficient
implementation of requirements set forth in the priorities and key issues outlined [in] this
funding announcement.” In addition, HHS also added language to another criterion, criterion
(e), which now asks reviewers to consider “[t]he adequacy of the applicant’s facilities and staff,
demonstrating that the staff are adequately trained to carry out the program requirements, as well
as the priorities and key issues outlined in this announcement” (added language in italics).
Criterion (e) is worth 10 points. Thus, up to 35 out of 100 points of an applicant’s score will
now be based on the applicant’s compliance with the requirements set forth in the FOA’s “policy
priorities” and “key issues” sections. Previously, no single criterion had ever been worth more
than 20 points.
70.

The FOA’s “program priorities” and “key issues” sections have in turn been re-

written from previous years to focus on everything but comprehensive reproductive health care.
71.

All mentions of contraception have been excised from the FOA. The FY2017

FOA’s “program priorities” and “key issues” sections contained nine mentions of contraceptives
or LARCs; for FY2018, that number is zero. Moreover, the FOA eliminates all references to
Providing Quality Family Planning Services: Recommendations of CDC and the US Office
Population Affairs, otherwise known as “the QFP,” an authoritative set of clinical
11

A copy of the FY2018 FOA is appended to this Complaint as Exhibit A and incorporated
by reference into this Complaint.
-23-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 24 of 39

recommendations and standards for reproductive health care developed by HHS and the Centers
for Disease Control and Prevention that was first published in 2014.12 The government
developed the QFP “by conducting an extensive review of published evidence, seeking expert
opinion, and synthesizing existing clinical recommendations from CDC” and other agencies and
medical organizations (including PPFA). There had been eight references to the QFP in prior
FOAs; now there are none. And the FOA also eliminates all references to HHS’s Program
Requirements for Title X Funded Family Planning Projects (the “Title X Program
Requirements”), HHS’s official, detailed description of the Title X program, which incorporates
the QFP and which directly states that Title X “is designed to provide contraceptive supplies and
information to all who want and need them.”13
72.

The FY2018 FOA’s “program priorities” and “key issues” sections (and thus a

large chunk of an applicant’s formal review score) are instead focused on issues like abstinence
promotion (for healthy adults as well as adolescents), parental and family involvement (again,
for adults as well as adolescents), cooperation with faith-based organizations, and onsite primary
care.
73.

Some of the newly added “program priorities” in the FY2018 FOA include:

2. Assuring activities that promote positive family relationships for the purpose of
increasing family participation in family planning and healthy decision-making;
education and counseling that prioritize optimal health and life outcomes for every
12

The most recent version of the QFP was published in 2017, and is available at
https://www.cdc.gov/mmwr/volumes/66/wr/mm6650a4.htm.

13

HHS Office of Population Affairs, Program Requirements for Title X Funded Family
Planning Projects 9 (April 2014), https://www.hhs.gov/opa/sites/default/files/ogc-cleared-finalapril.pdf. HHS’s failure to include these authoritative, HHS-authored statements is itself a
significant departure from prior practice. Previously, every FOA included a program description
that referred to the full set of governing authorities, including documents like the Title X
Program Requirements, and stated that “[a]ll activities funded under this announcement must be
consistent with the Title X statute, regulations and legislative mandates, and are expected to be in
compliance with” the Program Requirements.
-24-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 25 of 39

individual and couple; and other related health services, contextualizing Title X services
within a model that promotes optimal health outcomes for the client.
…
4. Promoting provision of comprehensive primary health care services to make it easier
for individuals to receive both primary health care and family planning services
preferably in the same location, or through nearby referral providers, and increase
incentive for those individuals in need of care choosing a Title X provider.
…
6. Encouraging participation of families, parents, and/or legal guardians in the decision of
minors to seek family planning services; ….
74.

And some of the newly added “key issues” include:

3. Cooperation with community-based and faith-based organizations;
…
5. A meaningful emphasis on education and counseling that communicates the social
science research and practical application of topics related to healthy relationships, to
committed, safe, stable, healthy marriages, and the benefits of avoiding sexual risk or
returning to a sexually risk-free status, especially (but not only) when communicating
with adolescents;
6. Activities for adolescents that do not normalize sexual risk behaviors, but instead
clearly communicate the research informed benefits of delaying sex or returning to a
sexually risk-free status.
75.

These “program priorities” and “key issues,” which are now part of the formal

application review criteria through the addition of criterion (h) and modifications to criterion (e),
are inconsistent with providing comprehensive, evidence-based reproductive health care, as
required by the Title X statute and regulations.
76.

For example, HHS’s new “program priorities” and “key issues” repeatedly

emphasize abstinence-focused sex education and counseling, using terms like “sexual risk
avoidance” and “optimal health,” which are well-known euphemisms for an abstinence-only

-25-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 26 of 39

approach to family planning.14 Plaintiffs already discuss abstinence in medically effective and
appropriate ways, particularly as one out of many reproductive health strategies, and particularly
for younger adolescents. But there is no evidence to support the claim that singling out
abstinence (as opposed to incorporating abstinence within a comprehensive approach) has any
effect on adolescent behavior or health outcomes. Indeed, emphasizing abstinence has been
proven ineffective at decreasing STIs and unwanted pregnancies with respect to adolescents.15
77.

Emphasizing abstinence as an approach to family planning is a particularly

improper requirement for Title X grantees in light of the statutory requirement that Title X
projects must provide “acceptable and effective” family planning methods. E.g., 42 U.S.C. §
300. Abstinence prevents pregnancy and STIs when used perfectly, but in reality it has
extremely high rates of “user failure”—that is, people often decide to have sex, even if they had
previously intended to abstain from sex.16 Abstinence is also unacceptable to patients, as shown

14

E.g., Boyer, New Name, Same Harm: Rebranding of Federal Abstinence-Only Programs
The Guttmacher Institute (Feb. 18, 2018), https://www.guttmacher.org/gpr/2018/02/new-namesame-harm-rebranding-federal-abstinence-only-programs.
15

See, e.g., Santelli, et al., Abstinence-Only-Until-Marriage Policies and Programs: An
Updated Position Paper of the Society for Adolescent Health and Medicine, 61 J. Adolescent
Health 400 (2017), https://www.jahonline.org/article/S1054-139X(17)30297-5/fulltext (“The
weight of scientific evidence finds that [abstinence-only-until-marriage] programs are not
effective in delaying initiation of sexual intercourse or changing other sexual risk behaviors,”
and “inherently withhold information about human sexuality and may provide medically
inaccurate and stigmatizing information[.]”); Lindberg, et al., Understanding the Decline in
Adolescent Fertility in the United States, 2007–2012, 59 J. Adolescent Health 577 (2016),
http://www.jahonline.org/article/S1054-139X(16)30172-0/abstract (“[A]bstinence-only programs
have not demonstrated effectiveness in changing adolescent sexual behavior or in reducing teen
pregnancy or sexually transmitted infections.”).
16

E.g., Ott, et al., Counseling Adolescents about Abstinence in the Office Setting, 20 J.
Pediatric Adolescent Gynocology 39 (2007), https://www.ncbi.nlm.nih.gov/pubmed/17289516
(“Clinical experience and data suggest that adolescents who use sexual abstinence as a method of
pregnancy and STI prevention often fail to remain abstinent for extended periods of time, or until
marriage. … [D]ata from the National Longitudinal Survey of Adolescent Health examining
virginity pledges suggests that [the typical use efficacy rate of sexual abstinence] is quite low.”).
-26-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 27 of 39

by the very small number who choose abstinence as an approach to family planning. Promoting
abstinence despite this unpopularity would also violate Title X’s non-coercion rule, see 42
C.F.R. § 59.11.
78.

Emphasizing abstinence to adult patients would be particularly inappropriate.17

Indeed, placing a “meaningful emphasis” on abstinence until marriage to an unmarried, healthy
adult woman who wishes to be sexually active, and who comes to a health center for an IUD,
would not only be a coercive and egregious clinical practice, but would disrespect the patient’s
dignity as an individual, in violation of 42 C.F.R. § 59.5(a)(3), and could be understood as
refusing service based on marital status, in violation of 42 C.F.R. § 59.5(a)(4).
79.

The FOA also repeatedly emphasizes natural family planning methods (also

known as “fertility awareness based methods” or the “rhythm method”), in addition to
abstinence, promoting them as adding potential “breadth and variety” to the Title X program.
Natural family planning was mentioned only once in the FY2017 FOA, but is now mentioned six
times, including in the “program priorities” section. To be sure, those methods are already part
of the Title X program. But those methods are also well understood to be among the least
effective methods of family planning, and are accordingly chosen by only a small minority of
patients. Adding “breadth” to the Title X program by increasing the emphasis on the least
acceptable and least effective methods of birth control is also contrary to Title X’s overarching
goals.

17

For example, one study surveyed clinicians serving high-risk populations and found that
they discussed abstinence with “young kids” or “very young teens,” not adult patients. See
Harper, et al., Abstinence and Teenagers: Prevention Counseling Practices of Health Care
Providers Serving High-Risk Patients in the United States, 42 Perspectives on Sexual and
Reprod. Health 125 (2010), https://onlinelibrary.wiley.com/doi/abs/10.1363/4212510.
-27-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 28 of 39

80.

The newly required “program priorities” and “key issues” also state a

“preference” for onsite primary care. But Title X is meant to support the provision of
reproductive health care, and specialized reproductive health centers are better at fulfilling that
responsibility. Plaintiffs often receive referrals from primary care providers, who recognize
Plaintiffs’ comparative advantage in offering reproductive health care. Studies show that
Plaintiffs’ health centers provide more comprehensive and accessible reproductive health care
than FQHCs and comparable health centers, which are generalist, primary-care focused facilities.
Again, the Title X statute and the regulations emphasize the importance of grantees’ abilities to
deliver comprehensive reproductive health and family planning care, not primary care. Giving
an advantage to primary care providers in the application process for Title X funds is
inconsistent with that requirement.
81.

The new “program priorities” and “key issues” also emphasize parental and

family involvement in reproductive health decisions, both for minors and seemingly for adults as
well. Consistent with best practices, Plaintiffs always encourage minor patients in particular to
speak with a parent or trusted adult about family planning decisions. But again, consistent with
best practices and HHS’s standing regulations against coercing any decision “to employ or not to
employ any particular methods of family planning,” 42 C.F.R. § 59.5(a)(2), Plaintiffs cannot
refuse to provide contraception to patients, or strong-arm patients into unwanted family
involvement. And, consistent with both evidence-based best practices and Title X regulations,
id. § 59.11, Plaintiffs are also obligated to keep any patient information confidential, including
from family members if so directed by the patient.
82.

The new “program priorities” and “key issues” also emphasize partnerships with

faith-based groups. Plaintiffs frequently work with community-based groups of all kinds,

-28-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 29 of 39

including faith-based groups like local churches, youth groups, and others, to provide ageappropriate sex education. But some faith-based groups are opposed to comprehensive family
planning care—the very thing that that the Title X program supports. Advantaging applicants
based on their partnerships with such groups could undermine the very purpose of the Title X
program.
83.

Meanwhile, and as mentioned already, the new FOA, including the new “program

priorities” and “key issues” sections, strips out all references to contraception and to the QFP, as
well as the Title X Program Requirements. That change stands in stark contrast to HHS
regulations governing the Title X application process, which require that grantees provide “a
broad range of acceptable and effective medically approved family planning methods,” 42 C.F.R.
§ 59.5(a)(1), including contraception, id. § 59.5(b)(1). Indeed, the FOA goes even further: It
also includes new language encouraging applications for projects that use birth control methods
that are “historically underrepresented in the Title X program.” But because Title X providers
have, consistent with Title X’s basic mission, consistently sought to offer the most effective and
up-to-date family planning methods (subject to the patient’s choice and direction), a “historically
underrepresented” method is almost certain to be one that is less “medically effective,” and less
“acceptable” with patients, as required by Title X regulations.
84.

The net effect of HHS’s new criteria, then, is to shift the operation of the Title X

program away from its statutory purpose of funding comprehensive family planning care, and
towards supporting the types of faith-based, nonscientific practices, like abstinence-only
education, that have long been discredited as effective methods of contraception and risk
mitigation.

-29-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 30 of 39

85.

Not only was the Administration’s addition of a new application review criterion

for Title X funding not promulgated through notice and comment rulemaking, as required by
law, but HHS has never provided a reasonable explanation for the new substantive requirements
in the FY2018 FOA.
86.

HHS only even attempted to offer a justification for one of those requirements—

the new requirement to promote abstinence—and it did so only after the new FOA had been
issued. Specifically, when potential applicants sought an explanation for the change during a
March 2018 open technical call, HHS promised that it would provide studies to support its new
emphasis on “sexual risk avoidance.” HHS later offered citations to several studies that do not
support promoting abstinence to healthy, sexually active adults.
87.

Meanwhile, with respect to the other new requirements that the FY2018 FOA

seeks to add to the application review criteria, like its new emphasis on onsite primary care, HHS
made no attempt to explain the basis for these changes to the longstanding Title X program.
88.

The end result is that the FOA, which HHS issued with no formal rulemaking and

no cogent explanation, runs afoul of the Title X statute and regulations.
V.

THE FOA WILL HARM PLAINTIFFS AND THE PATIENTS THEY SERVE
89.

Applications under the FY2018 FOA are due on May 24, 2018. Plaintiffs do plan

to apply for Title X funds, but they remain committed to following evidence-based best practices
for patients’ health, and to providing comprehensive family planning care consistent with the
core mission of Title X. The FY2018 FOA disadvantages Plaintiffs in earning up to 35 points
out of 100 because of their commitment to the Title X mission.
90.

Plaintiffs are harmed in several ways as a result.

91.

Competitive Harm: The FY2018 FOA forces Plaintiffs to compete for Title X

funds on improper terms, giving an advantage in the funding application process to Plaintiffs’
-30-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 31 of 39

competitors based on factors that should not be considered by HHS under governing law.
Regardless of the outcome of the FOA process, Plaintiffs will suffer harm the moment their
applications for Title X funds are first considered using the current application review criteria.
92.

Loss of Title X Funds: Moreover, Plaintiffs are at imminent risk of being denied

some or all of their Title X funds on the basis of the new application review criteria. According
to the FOA, all award decisions “are final and you may not appeal.”
93.

In Wisconsin and Ohio in particular, Planned Parenthood affiliates face

competition in the Title X application process from their respective state health departments.
Wisconsin law now requires the state Department of Health Services to apply for Title X grant
funding (and prevents the State from sub-granting any of that money to Planned Parenthood
affiliates). And the Ohio State Department of Health (which funded abstinence-focused
programming when it employed Defendant Huber) also competes for Title X funding. Even
though PPWI and PPGOH are the only provider networks in their respective States with the
capacity to provide high-quality, comprehensive reproductive health care services to tens of
thousands of patients, they are at serious risk of losing at least some of their funding to these
state competitors (who maintain or sub-grant funds to generalist facilities that by definition
include onsite primary care, and who have demonstrated a willingness to promote abstinence,
among other things) in light of the changes to the application review criteria.
94.

Layoffs, Closures, and Service Cuts: Any such losses of needed Title X funds

will in turn result in service denials and cuts, layoffs, and the closures of health centers that are
often the only option for low-income patients in need of reproductive care. And many of the
health centers that would have to close or cut services as a result of a loss of Title X funding in
Wisconsin, Ohio, and Utah could not be reopened without extensive additional investment in

-31-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 32 of 39

infrastructure. Even if the FOA were later held unlawful at the end of this lawsuit, Plaintiffs will
not be able to reopen centers, resume relationships with the patients they have lost, reconstitute
the programs and services that were terminated, or recall the employees who were essential to
serving those patients.
95.

The threats to each Plaintiff and their patients on this score are grave.

96.

PPWI will face serious, irreparable harm if the FOA as written is allowed to go

into effect. PPWI stands to lose up to $3.5 million out of a $24 million annual budget. Without
this funding, PPWI will be forced to close four rural health centers, which care for some of the
highest-risk populations in the state. These centers already operate at a loss and cannot be
sustained on private insurance or Medicaid reimbursements alone. PPWI will also be forced to
close two or three additional centers around Milwaukee. Because of these closures, PPWI will
have to lay off 25 clinicians and support staff.
97.

Recent history demonstrates the swift, devastating impact of budget cuts on PPWI

and its patients. In 2011, after Wisconsin Governor Scott Walker eliminated $1 million in state
funding to PPWI, PPWI was forced to close five rural health centers over the next three years.
These health centers were the only reproductive health providers in their areas, and subsequent
studies and investigation showed that most patients never found another provider, but rather
simply went without reproductive health and family planning care, which can have dire
consequences.
98.

PPGOH will face serious, irreparable harm if the FOA is allowed to go into effect.

Title X makes up $4.2 million out of PPGOH’s $23 million annual budget. If PPGOH were to
lose this funding, it will have to close seven health centers and reduce services and personnel at
others. Many of its patients, including the nearly 17,000 whose care at those seven health

-32-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 33 of 39

centers is subsidized by Title X each year, would have to seek care elsewhere or go without.
PPGOH would also be forced to scale back the extensive education and outreach work it
conducts even in areas where it does not operate a health care center. These outreach efforts,
which are subsidized with Title X funds, are the primary way that PPGOH reaches underserved
rural areas, especially Appalachia.
99.

PPAU will face serious, irreparable harm if the FOA as written is allowed to go

into effect. Title X funding comprises $2 million out of an $11 million budget. PPAU would be
forced to close clinics and layoff or furlough providers and staff, threatening access to care for
the 46,000 patients it serves annually. Those who live in the many rural parts of the state would
be at particular risk of being cut off from health care services. If PPAU lost Title X funding, it
would have to scale back or eliminate its rural health programs, leaving thousands with reduced
or no access to critical preventive and reproductive health care services.
100.

Reputational Harm: The service cuts and closures from the improper diminution

of Title X funds would in turn tarnish Plaintiffs’ longstanding reputations as reliable, affordable,
and accessible options for patients with nowhere else to turn. Those reputations have been built
over decades of work in the communities that Plaintiffs serve, but will be impaired if Plaintiffs
are forced to lay off employees or cut back hours or services, or turn patients away because they
lack the means to pay for family planning services. At the same time, Plaintiffs’ reputations as
providers of high-quality and nonjudgmental reproductive health services would also be
tarnished if Plaintiffs attempted to meet the new requirements imposed by HHS’s changes to the
FOA by shifting towards new practices like emphasizing abstinence promotion.

-33-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 34 of 39

101.

Harm to Patients: In addition to harming Plaintiffs themselves, the FOA poses a

serious, grave risk to the health of Plaintiffs’ patients, who are low-income individuals already
facing barriers to care, as well as to public health generally.
102.

The healthcare infrastructure where Plaintiffs operate cannot absorb the flood of

new patients that Plaintiffs would have to turn away after losing Title X funding, and cannot
provide high-quality reproductive health and family planning care for thousands of new patients.
Plaintiffs care for at least half of all individuals in their respective states who depend on publicly
funded family planning services, like Title X and Medicaid, from a health care safety-net
provider.18 Plaintiffs serve many times more contraceptive patients than neighboring FQHCs or
health department clinics, and in Plaintiffs’ absence, according to one study, the caseloads on
FQHCs in particular would at least double (in Wisconsin) or triple (in Ohio and Utah).19 This is
particularly problematic because FQHCs and health departments already have significantly
longer average wait times for an initial contraceptive appointment.20 Closing PPFA-affiliated
clinics like Plaintiffs’ will leave the remaining care providers badly unable to cope with the level
of need in their areas.
103.

With nowhere to turn for high-quality reproductive health and family planning

care, patients will simply go without. A report by the Congressional Budget Office demonstrates
that when PPFA-affiliated clinics close, patients lose access to critical reproductive health and
18

Rosenbaum, Can Community Health Centers Fill the Health Care Void Left by
Defunding Planned Parenthood?, Health Affairs (January 27, 2017),
https://www.healthaffairs.org/do/10.1377/hblog20170127.058486/full/.

19

Frost & Zolna, Response to Inquiry Concerning the Availability of Publicly Funded
Contraceptive Care to U.S. Women, The Guttmacher Institute (May 1, 2017),
https://www.guttmacher.org/article/2017/05/guttmacher-murray-memo-2017.

20

Planned Parenthood’s average wait time for an initial contraceptive visit is 1.2 days,
while the average wait time for such a visit is 2.5 days at FQHCs and 4.1 days for health
department sites.
-34-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 35 of 39

family planning services; they do not find those needs served elsewhere.21 FQHCs and public
health departments are not specialists in reproductive health care; they serve primary care needs
for everyone from infants to the elderly, including oral and mental health, substance abuse
treatment, long-term support services, and early childhood development. They are simply not
built to work as specialized, safety-net providers of reproductive health care services.
104.

Patients are especially likely to lose contraceptive care, including access to

LARCs, the most effective form of contraception for preventing unwanted pregnancies, if
Plaintiffs lose Title X funding. Plaintiffs’ health centers are considerably more likely to offer
patients a broad range of medically approved contraceptive methods, including LARCs, than
sites operated by other types of providers. Indeed, nearly all Planned Parenthood centers offer
the full range of Food and Drug Administration (FDA)-approved reversible contraceptive
methods, compared with just half of FQHCs and two-thirds of state health departments. Unlike
many FQHCs and state health departments, nearly all Planned Parenthood centers offer insertion
of IUDs and implants on the same day as a client’s initial appointment. Because LARCs are so
expensive for lower-income patients, patients almost certainly will not obtain them unless they
are provided through a Title X grantee with the ability to subsidize the cost.
105.

Moreover, in many areas, Plaintiffs are the only provider of family planning and

reproductive health care services for low-income individuals. Because the unlawful criteria
threaten to force Plaintiffs’ health centers to close or cut services in those areas, it is not only
Title X patients who will lose access to care, but also patients in those areas who depend on
Medicaid and even private insurance.

21

Cost Estimate of the American Health Care Act, Congressional Budget Office (March 13,
2017), https://www.cbo.gov/system/files/115th-congress-20172018/costestimate/americanhealthcareact.pdf.
-35-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 36 of 39

106.

The 2011 budget cuts to Planned Parenthood centers in Wisconsin provide a stark

demonstration of the effect that closures and service cuts have on the health of all patients. After
the cuts forced the closure of five PPWI clinics, no other providers took their place.22 Those in
Chippewa County had nowhere to go for STI tests. Staff at the Jefferson County Health
Department recommended that women seeking contraception travel to another county that still
had a Planned Parenthood health center. The parts of Wisconsin affected by the clinic closures
experienced a spike in STIs and long waiting lists at community health centers in other areas.
Patients using the Planned Parenthood clinic in Shawano were referred to another clinic in Green
Bay—nearly 40 miles away.
107.

A study published in The American Journal of Public Health showed similarly

disastrous results in Texas after state legislation restricted participation in family planning
programs, excluding experienced, proven provider networks like Planned Parenthood. A quarter
of all clinics statewide closed, and reproductive health specialists lost over half of their patients.
The study’s authors concluded that, “when specialized family planning providers are
marginalized or systematically excluded from public programs … women will lose access to
essential preventive services.”23
108.

Unless the FOA is enjoined, those disastrous results will be replicated in

Wisconsin, Ohio, and Utah, and across the country. The consequences of the FOA will be
disproportionately felt by low-income patients, patients in rural areas, patients who are not
22

Redden, Healthcare without Planned Parenthood: Wisconsin and Texas point to dark
future, The Guardian (January 17, 2017), https://www.theguardian.com/usnews/2017/jan/17/planned-parenthood-congress-wisconsin-texas.
23

White, et al, The Impact of Reproductive Health Legislation on Family Planning Clinic
Services in Texas, 105 Am. J. Pub. Health 851 (2015),
http://sites.utexas.edu/txpep/files/2017/04/White-et-al-Impact-of-Reproductive-HealthLegislation-AJPH-pre-print-2015.pdf.
-36-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 37 of 39

proficient in English, and communities of color in underserved areas. Those patients already
face serious barriers to obtaining comprehensive, high-quality family planning care. Congress
passed the Title X statute to address that very issue, but unless it is enjoined, the FOA will make
the problem worse.
COUNT ONE:
APA: CONTRARY TO LAW
109.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs.

110.

An agency rule or action that that is “contrary to the statute” is not valid. E.g.,

Chevron v. NRDC, 467 U.S. 837, 844 (1984); see also 5 U.S.C. § 706. HHS regulations have the
force of law. E.g., Morton v. Ruiz, 415 U.S. 199, 235 (1974).
111.

The new FOA is contrary to the Title X statute because it provides that Title X

funding decisions will be made based on criteria that are not within any permissible construction
of 42 U.S.C. § 300(b). It is also contrary to the Title X regulations, which list seven specific
criteria, drawn from the statute, that HHS may consider. See 42 C.F.R. § 59.7.
112.

The new FOA also conflicts with Title X’s fundamental purpose and its

substantive requirements for supported projects. The purpose of Title X, both the statute itself
and the regulations promulgated thereunder, is to support comprehensive, evidence-based family
planning projects that “offer a broad range of acceptable and effective family planning methods
and services.” 42 U.S.C. § 300(a); see also 42 C.F.R. §§ 59.1, 59.5. But the new FOA
countermands these requirements, by disadvantaging grant applicants based on their commitment
to comprehensive, evidence-based family planning services.
COUNT TWO:
APA: ARBITRARY AND CAPRICIOUS
113.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs.

-37-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 38 of 39

114.

Agency rules or actions that are not “reasoned” are invalid as arbitrary and

capricious. See, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).
115.

HHS’s changes to the FOA are not reasoned because they run counter to the best

available evidence regarding how to promote comprehensive family planning services for lowincome people, or have no evidence-based relationship to that goal.
116.

HHS’s changes to the FOA are also not reasoned because HHS has offered no

explanation for those changes or for HHS’s departure from past agency practice.
COUNT THREE:
APA: FAILURE TO ENGAGE IN NOTICE AND COMMENT RULEMAKING
117.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs.

118.

HHS regulations, including 42 C.F.R. § 59.7, have the force of law. E.g., Morton

v. Ruiz, 415 U.S. 199, 235 (1974).
119.

HHS is required to use notice and comment rulemaking if it wishes to modify

those regulations. See NFPRHA v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992); see also 36 Fed.
Reg. 2,532 (Feb. 5, 1971).
120.

42 C.F.R. § 59.7 sets forth the criteria that HHS shall consider in deciding to

award Title X funds.
121.

The FOA’s changes to the application review criteria contravene 42 C.F.R.

§ 59.7, or constitute an attempt to change 42 C.F.R. § 59.7 without notice and comment
rulemaking.
122.

The new application review criteria are contrary to HHS regulations and invalid,

and should be set aside.

-38-

 Case 1:18-cv-01035 Document 1 Filed 05/02/18 Page 39 of 39

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray this Court:
a)

Declare that the FOA is contrary to law, arbitrary and capricious, an abuse of

discretion, and invalid;
b)

Enjoin HHS from using the FOA to review Title X grant applications;

c)

Require that HHS provide any continuation funding necessary to ensure that Title

X projects remain funded until HHS issues new Title X grants pursuant to a lawful FOA;
d)

Award Plaintiffs their costs and attorney’s fees in pursuing this action pursuant to

28 U.S.C. § 2412; and
e)

Grant such other relief as this Court may deem proper.

May 2, 2018
HELENE T. KRASNOFF (DC BAR NO. 460177)
CARRIE Y. FLAXMAN (DC BAR NO. 458681)
PLANNED PARENTHOOD FEDERATION OF
AMERICA
1110 Vermont Avenue NW, Suite 300
Washington, DC 20005
(202) 973-4800

Respectfully submitted,
By /s/ Paul R. Q. Wolfson
PAUL R.Q. WOLFSON (DC BAR NO. 414759)
ARI J. SAVITZKY (pro hac vice pending)
LEON T. KENWORTHY (pro hac vice pending)
SARA SCHAUMBURG (pro hac vice pending)
WILMER CUTLER PICKERING HALE
AND DORR LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
(202) 663-6000
ALAN SCHOENFELD (pro hac vice pending)
EMILY NIX (pro hac vice pending)
WILMER CUTLER PICKERING HALE
AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Attorneys for Plaintiffs Planned Parenthood
of Wisconsin, Inc., Planned Parenthood of
Greater Ohio, and Planned Parenthood
Association of Utah
-39-