HHS Tells Supreme Court Oklahoma’s Opposition to Abortion Disqualifies It From Federal Aid

Oklahoma Attorney General Gentner Drummond during an interview in Oklahoma City on Feb. 1, 2023. Sue Ogrocki/AP Photo

The U.S. Department of Health and Human Services (HHS) told the Supreme Court on Aug. 15 it should not have to give millions of dollars in grants to Oklahoma that the agency withdrew over the state’s refusal to provide abortion referrals.

HHS argues Oklahoma should lose the funding because it made clear it would not include abortion in its information offerings about family planning services.

Funding flows to states under Title X of the Public Health Service Act of 1970. The money may be used for family planning services but may not be used for abortions.

A 2021 HHS regulation states that entities receiving funding must “offer pregnant clients the opportunity” to receive “neutral, factual information” regarding family planning options, including abortion.

In Oklahoma, the state allocates the money to city and county health departments, which use it to promote family planning, including services aimed at infertility and young people.

Abortion is banned in Oklahoma except to save the life of the mother. The state’s current abortion law took effect after the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, which returned the regulation of abortion to the states.

Oklahoma previously advised HHS that its abortion law forbids abortion referrals and that state law requires the distribution of educational material aimed at discouraging abortions.

The state filed an emergency application with the Supreme Court on Aug. 7 after the courts denied its request to have the $4.5 million in annual funding restored.

On March 26, a federal district court refused the state’s request for a preliminary injunction against HHS. On July 15, the U.S. Court of Appeals for the Tenth Circuit upheld the denial.

Representing HHS, U.S. Solicitor General Elizabeth Prelogar filed a brief with the Supreme Court on Aug. 15, asking it to dismiss Oklahoma’s application.

Prelogar said Oklahoma and 10 other states challenged the regulation, but a federal district court denied their application to pause the rule in December 2021. The states appealed, but in November 2023, the U.S. Court of Appeals for the Sixth Circuit affirmed the lower court. The case remains pending in the district court.

Oklahoma’s State Department of Health obtained a Title X grant for 2022-2023, saying it would comply with the regulation.

But Prelogar said after Oklahoma adopted its restrictive abortion law, HHS and the department agreed the state could comply with the regulation by requiring providers to offer patients seeking pregnancy counseling a hotline’s telephone number. The state was approved for another Title X grant for 2023-2024.

Soon after, Oklahoma announced that providers would no longer have to offer the hotline telephone number or provide abortion counseling and referrals, and HHS ended the grant. The state sued, seeking a court order requiring the agency to approve the 2024-2025 grant, the brief says.

Oklahoma argues the 2021 regulation violates the U.S. Constitution’s Spending Clause because its provisions do not appear in the Title X law.

Prelogar said this interpretation of the Spending Clause would cause havoc because it would “invalidate a host of regulatory conditions that have long governed federal spending programs ranging from Title X to Medicare to infrastructure funding,” the brief says.

Oklahoma Attorney General Gentner Drummond’s spokesman Phil Bacharach told The Epoch Times by email, “We are letting the appeal filing speak for itself.”

Oklahoma’s application is pending before Justice Neil Gorsuch. It is unclear when he will act.