Federal judges in New York and Oregon ruled late Thursday, in separate cases brought by Multnomah County, Oregon, and Planned Parenthood of New York City, that the Trump-Pence administration contradicted Congress’s unambiguous intent when it allowed unproven, abstinence-only programs to apply for Teen Pregnancy Prevention (TPP) Program grants. These grants — called Tier 1 grants — apply the bulk of the TPP Program appropriation to replicating proven, evidence-based programs.
In concluding that the U.S. Department of Health and Human Services’ (HHS) actions were unlawful, the Oregon Court said in its ruling that “an agency is not free simply to disregard statutory responsibilities…[and] because the 2018 Tier 1 FOA is ‘not in accordance with the law,’ it must be vacated.” The Oregon Court further ruled HHS violated the Appropriations Clause of the United States Constitution.
The New York Court similarly concluded HHS’ actions violated Congress’s mandate, and rebuffed the administration’s mischaracterization of the TPP Program’s effectiveness, finding that the administration did not have an “adequate reason to flaunt the statutory requirement to ‘replicat[e] programs that have been proven effective through rigorous evaluation.’”
HHS had issued this unlawful Funding Opportunity Announcement (FOA) in April, a day after the first of five court rulings overturning its termination of TPP Program funding to 81 previous grantees around the country, including Multnomah County and multiple Planned Parenthood affiliates. The administration’s FOA clearly laid out an agenda that stigmatizes teens who have had sex and stacks the deck against young people by promoting unproven, abstinence-only programs rather than a wide range of programs that are proven to help young people stay healthy. With the new FOA, HHS removed Congress’s focus on evidence-based programs completely, requiring instead that all participants emphasize an anti-evidence, abstinence-only approach. By requiring grantees to substantially incorporate ineffective abstinence-only approaches (which the Trump-Pence administration has tried to rebrand as “sexual risk avoidance”) into every program component, HHS attempted to dictate a single, ineffective, and harmful approach to teen pregnancy prevention. To make matters worse, the announcement also removed all mentions of support for LGBTQ youth. The dual court orders preventing HHS from moving forward under the Tier 1 FOA come just days before HHS had planned to distribute funds pursuant to its unlawful criteria.
To date, six federal judges have ruled seven times in less than five months that HHS’s TPP Program grant actions were illegal. Last month, 20 members of Congress, including members who created the 2009 TPP Program, asserted in both cases their “unambiguous intent” to fund programs that have been proven effective through scientific testing.
Kim Toevs, Director of Youth Sexual Health Equity at Multnomah County:
“The Court’s ruling supports teens throughout our nation. It sends a clear message that the science-based and comprehensive sexuality education Congress voted for cannot be undercut on an administrative whim. Here in Multnomah County we’ll continue to offer effective education and skill-building through strong partnerships with schools and culturally diverse community groups.”
Democracy Forward Senior Counsel Jeffrey Dubner:
“We are pleased with the Court’s ruling and are happy to stand with Multnomah County in fending off unlawful attacks against the evidence-based Teen Pregnancy Prevention Program. After being slapped down by multiple courts this spring, the Trump administration once again tried to sidestep the law in an attempt to dismantle the TPP Program. But as we did in reversing the administration’s illegal termination of previous TPP Program grants, Democracy Forward will continue to push back against this flagrant disregard for the law.”
Statement from Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America:
“Enough is enough. Once again, the Trump-Pence administration tried to impose their abstinence-only agenda on young people across the country at the expense of young people’s health — and they failed. Young people deserve to have full, accurate information, and to learn the skills they need for their lives, their health, and their futures. We will continue to fight for young people and for everyone’s right to access the health care and information they need.”
Multnomah County Case Background: In June 2018, Multnomah County brought a lawsuit against HHS, HHS Secretary Alex Azar, and Valerie Huber, Senior Policy Advisor in the Office of the Assistant Secretary of Health, alleging they unlawfully flouted Congressional mandates by reshaping the TPP Program to allow applicants using unproven, abstinence-only approaches to compete for grants. The suit was filed by the nonprofit legal organization Democracy Forward and Pacifica Law Group in U.S. District Court in Portland, after HHS violated Congressional requirements that they only fund programs that have been proven effective. Instead, the unlawful criteria privileged an anti-evidence, abstinence-only approach that is contrary to Oregon law.
Ruling in favor of Multnomah County, Magistrate Judge Youlee Yim You concluded that the criteria contradicted Congress’s unambiguous requirements, violating the Appropriations Clause of the United States Constitution and multiple federal statutes, and vacated the FOA.
Planned Parenthood Case Background: In June 2018, Planned Parenthood affiliates filed two lawsuits against HHS, HHS Secretary Alex Azar, and Senior Policy Advisor in the Office of the Assistant Secretary of Health Valerie Huber, challenging the administration’s efforts to impose their abstinence-only-until-marriage agenda on the 1.2 million young people who are set to benefit from the TPP Program.
The lawsuits seek to protect the future of the TPP Program. The New York permanent injunction blocks HHS from awarding TPP Program grants according to the new funding announcement for Tier 1 grants, which applies to 75% of the TPPP appropriation. The New York Court rejected Planned Parenthood’s challenge to the Tier 2 FOA. A decision is pending in the second case, which was filed in Spokane, Washington.
The Planned Parenthood affiliates are represented by Arnold & Porter and Planned Parenthood Federation of America.
December 7, 2018