HHS Urges Supreme Court to Withhold Federal Funds to Oklahoma After Appeals Court Ruling

The U.S. Department of Health and Human Services building in Washington on July 22, 2019. Alastair Pike/AFP via Getty Images

The federal government urged the Supreme Court this week to deny Oklahoma’s request to restore a canceled $4.5 million family planning grant.

The request came after a federal appeals court rejected another state’s application to reinstate grants under the same program.

The U.S. Department of Health and Human Services (HHS) argues Oklahoma should lose the funding because the state won’t include abortion in its information offerings about family planning services.

HHS also denied Tennessee a $7 million grant after it refused to provide abortion information to program participants. On Aug. 26, the U.S. Court of Appeals for the Sixth Circuit upheld the funding denial.

Oklahoma says the Tennessee ruling is irrelevant to its case and that Oklahoma law forbids it from making abortion referrals. Abortion is banned in Oklahoma except to save the life of the mother.

But HHS says states must provide abortion information to qualify for grants under Title X of the Public Health Service Act of 1970.

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

Oklahoma allocates Title X funds to city and county health departments, which use it to promote family planning, including infertility services.

In a filing dated Aug. 27, HHS referenced the Sixth Circuit decision.

The circuit court ruled 2–1 that Tennessee would probably not succeed at trial with its argument that the abortion information requirement violates the U.S. Constitution’s spending clause. The state argued that such a mandate is valid only if imposed by Congress. The case remains pending in federal district court.

The Sixth Circuit also rejected Tennessee’s argument that the abortion information mandate violated Title X, which forbids the use of grant money “in programs where abortion is a method of family planning.”

The circuit court’s ruling “further confirms” the Supreme Court should deny Oklahoma’s request because it is consistent with the 10th Circuit’s “correct” decision in the Oklahoma case and “does not conflict with any decision of this Court or another court of appeals,” the HHS brief states.

On July 15, the 10th Circuit affirmed a federal district court’s March 26 denial of Oklahoma’s request for a preliminary injunction against HHS. The case is still before the lower court.

On Aug. 28, Oklahoma responded to HHS, saying the funding restoration application should still be considered because the Sixth Circuit’s ruling did not weigh in on the so-called Weldon Amendment of 2004.

That legislative provision bars HHS from funding any program that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”

That issue was not before the Sixth Circuit, but Oklahoma says it is relevant to its application.

“And it remains the simplest and most straightforward route for an injunction or a stay, given that a ruling in Oklahoma’s favor would do nothing to undermine or upset the 2021 Rule,” the brief states.

Moreover, the brief states that the “truncated” discussion of the spending clause in the Sixth and 10th Circuits’ rulings did not adequately examine an 11th Circuit ruling from 2021 that held that “allowing an executive agency to impose a condition that is not otherwise ascertainable in the law Congress enacted ‘would be inconsistent with the Constitution’s meticulous separation of powers.’”

Oklahoma’s application is pending before Justice Neil Gorsuch on the Supreme Court’s emergency docket. It is unclear when he will act.