“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump judge Gregory Katsas provided the deciding vote in a D.C. Circuit opinion allowing the Trump administration to evade judicial review of its decision to change the criteria for awarding contraception and family planning community grants without the congressionally required public notice and comment. The result is to allow the Department of Health and Human Services (HHS) to funnel Title X contraception and family planning grants away from reproductive health care organizations actually providing contraception and family planning services and toward ones that emphasize abstinence. The November 2019 case is Planned Parenthood of Wisconsin v. Azar.

Half a century ago, Congress created a program of annual federal grants to community organizations to provide low-income people with access to affordable and effective contraception. Criteria for considering grant applications are set forth in Title X of the Public Health Service Act and in regulations adopted by the Department of Health and Human Services (HHS). When HHS announced new criteria for 2018 grants that favored abstinence programs, longstanding family planning organizations challenged them in court. In addition to its substantive arguments—and central to this case—the organizations also argued that by adopting the new criteria without public notice and comment, HHS had violated the Administrative Procedure Act (APA).

While the issue was still in litigation before the D.C. Circuit, HHS gave out all the 2018 grants and announced new criteria for 2019, again without public comment. In November, nearly a year after oral arguments in the case, Judge Katsas wrote a divided panel opinion dismissing the family planning organizations’ case as moot. Although courts make exceptions for cases that by their nature become moot during litigation but which are likely to recur, Judge Katsas wrote that this was not such a case.

But as Judge Sri Srinivasan pointed out in dissent, not only is it possible that HHS might again announce new grant criteria without public notice and comment, it has already done so. Nevertheless, under the court’s order, the Trump administration is able to evade judicial review of its actions – and thousands of people in the D.C. Circuit will have fewer options to access critical (and sometimes life-saving) health care.