Roberts Court Could Take Up Planned Parenthood Funding Case—Kind Of

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Analysis Law and Policy

Roberts Court Could Take Up Planned Parenthood Funding Case—Kind Of

Jessica Mason Pieklo

The Supreme Court is considering taking up a request by New Hampshire Right to Life to force disclosure of certain documents by the Obama administration related to a direct grant provided to Planned Parenthood affiliates in New Hampshire.

See more of our coverage on recent attacks against Planned Parenthood here.

During the summer of 2011, fresh off the midterm wave of Tea Party Republicans elected to office, anti-choice conservatives launched an assault on Planned Parenthood reproductive health-care clinics. States like Arizona, Indiana, Wisconsin, Kansas, and Texas tried, with varying degrees of success, to cut the provider out of state family planning programs. For the most part, federal courts thwarted those efforts, seeing them for the political ploys to restrict access to abortion that they were. Even the culturally conservative majority on the Roberts Court wasn’t interested in getting into the fray: It repeatedly turned away requests to overturn appellate decisions that had reinstated Title X funding to Planned Parenthood. Until now.

As conservatives at the federal and state level continue threatening to defund Planned Parenthood in the wake of heavily edited undercover attack videos, one case continues to hang around in the shadows: New Hampshire Right to Life v. U.S. Department of Health and Human Services. Although it is largely about federal agency information disclosure, it is also bound up in the funding of Planned Parenthood in the state of New Hampshire—and it is another attempt by anti-choicers to get details on the organization through convoluted means.

In June 2011, the all-Republican New Hampshire Executive Council, a group of five elected officials who approve contracts and gubernatorial appointments as a check on the governor’s power, voted against renewing a contract that would have provided Planned Parenthood of New Hampshire with $1.8 million in state and federal money over the course of two years. The bulk of that money came from the U.S. Department of Health and Human Services (HHS), which requires its state recipients provide access to family planning care and services across the entire state.

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The council stated the reason for ending the contract was it was concerned taxpayer funds were being used to subsidize abortions.

The terminated contract was the sole source of free or subsidized birth control for many New Hampshire patients, which meant once the funding stream dried up, so too did contraception access across many parts of the state.

After ending the Planned Parenthood contract, Republican leaders in the state failed to secure a replacement provider to offer the contraceptive services previously offered by Planned Parenthood. That meant that the state was no longer in compliance with the Title X funding terms, so those dollars went back to HHS to administer.

After considering its options to provide family planning services across the state, HHS gave Planned Parenthood a direct grant, thereby circumventing the New Hampshire Executive Council’s defunding efforts. As part of the grant application and approval process, Planned Parenthood provided various documents to the Obama administration, including its Manual of Medical Standards and Guidelines and information about its fee schedule.

Naturally, anti-choice groups were not happy with this direct funding decision. In September 2011 three of the New Hampshire Executive Council’s five members submitted a letter to the Government Accountability Office (GAO) protesting the grant award. The GAO concluded that it lacked authority to review the decision by HHS. That only emboldened anti-choice activists: In December 2011, New Hampshire Right to Life (NHRTL) submitted a Freedom of Information Act (FOIA) request for records concerning the decision from HHS to proceed with a direct-award process, documents submitted to HHS by Planned Parenthood in connection with its grant application, and records relating to the choice to ultimately grant Planned Parenthood the award.

Under FOIA, a federal agency must generally make agency records available to “any person” who has submitted a “request for [such] records,” unless a statutory exemption or exclusion applies. After HHS failed to produce the requested records within FOIA’s 20-day statutory deadline, NHRTL sued. HHS then responded to the FOIA request by releasing more than 2,500 pages of records. But, invoking one of the FOIA exemptions, the agency withheld some Planned Parenthood-submitted information, as well as certain internal HHS records.

NHRTL was still not satisfied. They went back to court to demand HHS produce the exempt documents, arguing the materials it was seeking, such as internal Planned Parenthood information the organization produced according to grant demands, were not the kind of “trade secrets” nor “privileged” documents the FOIA statute exempts from production. Both the district court and the court of appeals sided with HHS. NHRTL then appealed to the Supreme Court.

The Roberts Court has conferenced on NHRTL’s petition three times so far without acting on it, despite turning away previous cases involving the fight to defund Planned Parenthood in the states. Now, the fact that the Court has mulled this case over multiple times without acting doesn’t mean the Court will take it. Nor does it even mean the justices see this case as a fight over Planned Parenthood funding; they might see it as a matter of how to interpret provisions in the FOIA statute allowing the government to withhold certain documents.

And even if the Court does decide to grant review, that doesn’t mean it’s because the justices share the vendetta against Planned Parenthood that New Hampshire Right to Life and other conservatives do. In fact, the Roberts Court has been largely sympathetic to executive branch claims that agencies need a certain amount of discretion in responding to FOIA and other transparency-related claims. And since the withholding decisions from HHS are nothing out of the ordinary, a grant to review the case by the Roberts Court could very well be good news for the Obama administration, as it could signal the Court plans to uphold the HHS action once again.

Of course, if NHRTL were to get its way, then HHS could expect a fresh wave of FOIA requests related to Title X grants to Planned Parenthood and other health-care providers, as anti-choice activists try to access documents and information the law otherwise prevents them from having. Because that is what this case is really about. Anti-choice activists want information from Planned Parenthood they are not legally entitled to, and they are willing to try to manipulate federal law to get it.

With the steady drumbeat of conservative calls to defund Planned Parenthood based on fraudulent videos and unsupported claims of the organization’s illegal actions like those made by New Hampshire Republicans at the start of this case, it’s OK to be nervous anytime a case involving reproductive health-care providers finds its way before the Supreme Court, even if the case really isn’t about reproductive health care at all.