Oklahoma court denies Oklahoma’s request to reinstate federal funding in dispute over abortion referrals
EMERGENCY DOCKET
Tuesday, the order was issued without any indication of the reasoning behind the decision. (Aashish Kiphayet via Shutterstock)
The Supreme Court on Tuesday denied a request from Oklahoma to reinstate over $4 million in funding for family-planning projects while the state’s challenge to the termination of the grant by the federal Department of Health and Human Services continues in the lower courts. Oklahoma law prohibits abortion referrals and counseling, as required by federal law. The denial was made in an unsigned order without explanation. Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would grant the state’s requests.
The challenge is under Title X of Public Health Service Act of 1969, which provides funding to family planning programs across the country. These programs are targeted at lower-income patients and adolescents. To be eligible for grants from the Title X program, family-planning projects must offer pregnant patients counseling about prenatal care, adoption, and abortion, as well as referrals for those services if requested.
The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization revived an Oklahoma law that both bans abortion except to save the life of the mother and makes it illegal to advise someone to obtain an abortion. With that state law in place, Oklahoma objected to Title X’s requirement that programs in the state offer counseling and referrals for abortions.
HHS offered the state an alternative: Providers could give patients seeking pregnancy counseling or referrals the telephone number of a national call-in hotline instead. When Oklahoma rejected that option, HHS terminated the state’s grant.
Oklahoma went to federal court, challenging the termination and seeking to require HHS to renew the grant for 2024-25. The district court denied the state’s request for temporary relief, and the U.S. Court of Appeals for the 10th Circuit upheld that ruling.
Oklahoma came to the Supreme Court on Aug. 5, asking the justices to step in by Aug. 30. The state argued that requiring family planning projects to provide abortion counseling and referrals violates the Constitution’s spending clause which gives Congress the authority to impose and collect tax. Title X, the state contended, does not provide the kind of clear and unambiguous notice of those requirements that the Supreme Court has said is required when Congress is acting under its spending clause power.
Oklahoma next asserted that the counseling and referral requirements violate the Weldon Amendment, a federal law that bars HHS funding from going to federal agencies and programs or state or local governments that “discriminate” against health-care providers that decline to (among other things) provide referrals for abortions. That amendment, the state insisted, “clearly protects health care organizations from being forced to provide abortion referrals.”
Oklahoma emphasized that the county health department that receive the Title X funds “are part of the frontline of health care in Oklahoma.” “Depriving those communities of Title X services would be devastating,” the state told the justices.
Representing the Biden administration, U.S. Prelogar, the Solicitor General, urged the Justices to not intervene, downplaying the dispute as one of “modest stakes” and “a single discretionary state grant.” The amount of the grant ($4.5 million), she noted, is only a small fraction of the agency’s budget. Congress, she wrote, “routinely conditions federal grants on compliance with requirements contained in agency regulations, and this Court has repeatedly upheld such requirements.”
Nor do the requirements violate the Weldon Amendment, Prelogar added, because state administrative agencies like the Oklahoma State Department of Health are “not protected under” the amendment. She also noted that HHS had proposed an accommodation which would have allowed providers give patients a phone number rather than refer them to an abortion. HHS told Tennessee, as it did Oklahoma, that the Title X project would be able to fulfill its obligations if it provided patients with a telephone number for a nationwide call-in hotline. Prelogar told the justices that the 6th Circuit “expressly agreed” with the Tenth Circuit’s Spending Clause ruling.
But Oklahoma countered by stating that Tennessee hadn’t raised the Weldon Amendment separately as a reason to order HHS reinstate the grant. By contrast, Oklahoma noted, “the Weldon Amendment has been squarely presented.”
This article was originally published at Howe on the Court.
