Pro-lifers, keep an eye on HHS Nominee Becerra

President-elect Joe Biden has announced his intention to nominate Xavier Becerra to be the next Secretary of Health and Human Services. Becerra, currently California’s Attorney General, has a curious history when it comes to recognizing the free speech and conscience rights of his pro-life neighbors.

(I am not going to engage in a debate over who won the election. I think it’s unwise to pretend that Mr. Biden won’t be calling the shots as of Inauguration Day.)

Becerra succeeded Kamala Harris as California AG, after Harris was elected to the U.S. Senate. She is now vice-president-elect.

U.S. Dept. of Health & Human Services logo
hhs.gov

As Attorney General, Becerra followed Harris’s lead in two cases of particular interest to pro-life Americans.

The NIFLA case

In 2015, California legislators passed a law they dubbed the “Reproductive FACT Act.” It targeted pro-life pregnancy care centers, and their workers and volunteers, by requiring them to to provide information on how to obtain state-funded abortions. There were penalties for noncompliance.

The law prompted a lawsuit from an umbrella organization for several pregnancy care centers, National Institute of Family and Life Advocates (NIFLA). Harris and later Becerra represented California in defending the law.

The lawsuit made it to the Supreme Court, which in 2018’s NIFLA v. Becerra decision sided with NIFLA on a 5-4 vote.

NIFLA defenders summarize the decision

Attorneys with Alliance Defending Freedom represented NIFLA. Writing about the decision, ADF’s Maureen Collins wrote about the effects of the ruling. “Forcing someone to speak against their beliefs not only goes against the freedom of speech, it goes against plain common sense. Under this particular law, the very pregnancy centers dedicated to giving women alternatives to abortion were compelled by the state to advertise for abortion….The Supreme Court’s decision in NIFLA is simple. It protects the free speech of those with the viewpoint that women should have many choices other than state-sponsored abortion.”

Becket, another law firm dedicated to defending religious liberty, filed an amicus brief supporting NIFLA’s position. In a summary of the case, Becket attorneys wrote about the case’s importance. “The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government not silence one side of the debate….Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.”

Center for Medical Progress prosecution

The undercover journalism of David Daleiden, Sandra Merritt, and the Center for Medical Progress project revealed the commerce in fetal body parts carried out by some Planned Parenthood affiliates. In California, that led to prosecution – not of Planned Parenthood, but of Daleiden, who has been fighting criminal charges there since 2016.

David Daleiden
David Daleiden (photo by Ellen Kolb)

The prosecutors: first Kamala Harris, then Xavier Becerra. Daleiden is facing multiple felony counts under California’s illegal-taping law. Undercover journalists, take note. Becerra, with taxpayer dollars, keeps the prosecution going even now, as 2020 draws to a close.

The Thomas More Society is representing Daleiden. Its website provides extensive background on the case as it has developed so far, with no apologies for the tone of zealous advocacy.

Confirmation required

Becerra’s nomination as HHS Secretary depends on a confirmation vote to be held in the U.S. Senate in 2021. If the Senate were to tie on Becerra’s nomination, the tie-breaking vote would be cast by none other than Kamala Harris.

Post header image: U.S. Department of Health and Human Services headquarters, Hubert H. Humphrey Building, Washington DC. Photo by Carol M. Highsmith, from the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division.

Your Tax Dollars At Work: $600K for PPNNE

With a nod to Cornerstone Action, and with full disclosure that I’m a Cornerstone communications consultant, let me link you to this morning’s headline from the Cornerstone blog: “Title X Grantees Announced.” Among the recipients of this federally-disbursed family planning money, with no messy intermediate stop at the New Hampshire Executive Council: Planned Parenthood of Northern New England.

From Cornerstone’s post:

[The federal Department of Health and Human Services] has announced grant awards for Title X family planning funds for the grant period of April 1st  2019- March 31st  2020 and Planned Parenthood of Northern New England will be the recipient of $600,000 of taxpayer money.

As you may recall, President Trump’s new rule was rumored to prohibit federal taxpayer dollars to go to organizations that promote and administer abortion as a form of birth control.

…Not satisfied with federal dollars, Planned Parenthood continues their fight to secure your state taxpayer dollars 

https://www.nhcornerstone.org/latest-news/title-x-grantees-announced/

This round of 90 family planning grants for fiscal year 2019 does include some recipients of an abortion-free persuasion who had not received Title X money before, and it includes as always a lot of federally-qualified health centers which do not perform abortions. But please, don’t let anyone tell you that abortion providers have been cut out of Title X. It just ain’t so.

Quick review: Title X [that’s Roman numeral ten, not letter X] is a federal program that funds “family planning” efforts. Title X funds, while federal, are usually block-granted to states, and the states decide which contractors can most effectively carry out the Title X requirements. Abortion is explicitly excluded from Title X activity.

That’s how it’s usually (not always) done in New Hampshire, with the state Department of Health and Human Services (DHHS) receiving the federal money, then seeking bids from contractors and submitting the resulting contracts to the Executive Council for approval. It’s common for up to eleven contracts to be awarded in New Hampshire, with each contractor covering a different part of the state. Most of the contractors are federally-qualified health centers, but three are abortion providers: the Equality Center in Concord, the Lovering Center in Greenland, and PPNNE.

Each of those abortion providers solemnly swears as part of the Title X contract that none of the money will be used for abortion. That’s the extent of the firewall. To my knowledge, no one has figured out how to divvy up the money between the abortion and non-abortion use for the utilities, equipment, office space, and staffing of a facility.

Therefore, taxpayers wanting to divest completely from involvement in the abortion industry are out of luck. You’d think a $23 million agency like PPNNE could figure out a way to separate out abortion from authentic health care: separate facilities, staff, accounts. But no. You’ve got civil rights, but the right not to subsidize abortion providers isn’t on the list.

There are two New Hampshire grantees in the latest round announced by the feds: the state HHS department, which will get $800,000 for Title X, and PPNNE, which has a $600,000 grant all to itself.

from https://www.hhs.gov/opa/grants-and-funding/recent-grant-awards/index.html

The state HHS grant for Title X will go through the usual state contract bidding process, ending with an Executive Council vote that will probably hand over the money to the usual contractors. (I’m guessing a 4-1 vote, but don’t hold me to that.)

The PPNNE Title X grant, on the other hand, goes directly to PPNNE. Does that mean PPNNE won’t reach for more money from general funds in the state budget, now being drafted? Big fat “no.” Check out this Concord Monitor article from last weekend.

Don’t blame one political party over another. There’s plenty of responsibility to go around. You can start by letting the President know what you think of the handouts from the federal HHS department. It’s an executive agency, and he’s Chief Executive.

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