NHRTL petitions US Supreme Court for documents re PPNNE grant

New Hampshire Right to Life today petitioned the U.S. Supreme Court for a hearing to order the U.S. Department of Health and Human Services (HHS) to provide documents regarding a 2011 grant to Planned Parenthood of Northern New England. NHRTL originally filed a Freedom of Information Act (FOIA) request in October 2011 for documents about the sole-source non-competitive grant.

Attorneys for NHRTL say in today’s filing,

“The purpose of NHRTL’s requests was to expose what it considered an improper and potentially unlawful funding decision by HHS….[whose] decision to award Planned Parenthood a direct non-competitive grant was made hastily, in secret, and contrary to the usual protocols for awarding grants. Documents released by HHS showed that HHS was paying Planned Parenthood for birth control pills at nearly four times what Wal-Mart charged customers for the same pills. In addition, NHRTL suspected, as had the New Hampshire Executive Council, that Planned Parenthood was unlawfully using federal funds to subsidize abortion services, and that HHS knew that these federal funds were being used to subsidize abortions.”

The HHS grant in question was made shortly after the New Hampshire Executive Council rejected a Title X (ten) family planning contract with PPNNE in June 2011. Title X funds, while federal in origin, are administered by the states. Three months after the Executive Council vote, HHS in a surprise move made federal funds available to PPNNE, independent of any Executive Council oversight. NHRTL filed its FOIA request in October 2011 an effort to make public the process by which these funds were granted. A federal lawsuit followed after HHS did not produce documents in a timely fashion.

Some but not all of the requested documents relating to the grant have since been produced, some in redacted form. HHS has claimed the redactions and omissions are allowed under two exemptions within the FOIA law. That claim has been upheld in lower courts. NHRTL’s petition to the Supreme Court asserts in part that the U.S. First Circuit Court of Appeals ruling in this case creates a conflict with rulings on FOIA cases in three other Circuits.

One point of contention between the parties is the demand for public production of the PPNNE Medical Manual, outlining policies and procedures for operating a Title X federally-funded planning facility. According to today’s filing, such information is normally required by HHS as a condition for family planning grant funding. The First Circuit ruled that production of the manual and certain other documents would give an unfair advantage to a “potential future competitor” to PPNNE in future grant competitions. NHRTL notes in its petition that three other Circuits have ruled that FOIA exemptions refer to actual rather than potential competition.

NHRTL is also challenging an HHS decision to withhold some documents on the grounds that they refer to a deliberative pre-decision process, another FOIA exemption.

NHRTL is represented in New Hampshire Right to Life v. United States Department of Health and Human Services by Manchester attorney Michael Tierney and attorneys with Alliance Defending Freedom.

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Leaven for the Loaf will continue to cover this case as it develops.

Related posts (2013): PPNNE to get “retroactive” $$ from state? and Retroactivity and how not to de-fund an abortion provider