Supreme Court won’t stop Biden administration from withholding Title X funding from Oklahoma

Washington — The Supreme Court on Tuesday rejected a request from Oklahoma officials seeking to restore federal family planning grant funding to the state’s health department after it refused to offer patients a hotline phone number that would provide counseling on pregnancy options, including abortion.

The justices turned down the bid for emergency relief from the state, which had asked the Supreme Court to temporarily stop the Department of Health and Human Services from withholding $4.5 million in federal Title X funding from the Oklahoma State Department of Health. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted Oklahoma’s request.

The dispute is the latest involving abortion to land before the nation’s highest court in the wake of its June 2022 decision overturning Roe v. Wade. As more than half of the states banned or imposed stringent restrictions on abortions following the ruling, including Oklahoma, the Biden administration has sought to protect access at the federal level, including through an emergency care law that was at the center of a dispute before the justices in its most recent term.

The fight over Title X funding

The rule that gave rise to the case involving Title X funding for Oklahoma was announced in October 2021, months before Roe’s reversal. It requires Title X projects to offer pregnant patients “nondirective counseling” about family planning options, including abortion, as well as information about where services can be obtained if requested by a patient.

The Oklahoma State Department of Health received a Title X grant in 2022, which was used to provide funding to city and county health departments. After the Supreme Court rolled back the constitutional right to abortion, the department and the Biden administration discussed changing the counseling and referral policies for its Title X project, as a new Oklahoma law outlawed abortion, according to court filings. The measure also made it a felony for a person to advise or procure an abortion for a pregnant woman.

The two entities reached an agreement under which the state health department could comply with the 2021 rule by ensuring interested Title X patients were offered the phone number of a national hotline that would provide counseling and referral information. Based on the accommodation, the Department of Health and Human Services agreed to provide $4.5 million to the state agency from April 2023 through March 2024.

But the Oklahoma health department soon reversed course and said Title X patients who seek pregnancy counseling wouldn’t be provided with the call-in number, according to a Justice Department filing. As a result, the Biden administration eventually terminated the award because it said the state was violating its 2021 rule.

Oklahoma officials sued the federal government over its decision and sought to temporarily block termination of its award and force the Department of Health and Human Services to provide additional funding in the future. The state argued the Biden administration violated the Constitution’s Spending Clause and a federal conscience law known as the Weldon Amendment by withholding the Title X funds.

The Department of Health and Human Services prevailed before the federal district court and U.S. Court of Appeals for the 10th Circuit. The appeals court ruled that Congress allowed the federal government to determine eligibility for Title X grants, which are subject to conditions deemed appropriate by the secretary of health and human services. 

The divided 10th Circuit three-judge panel also found it unlikely that the Biden administration violated the Weldon Amendment, in part because the state failed to prove that the federal government discriminated against it for declining to refer pregnant women for abortions.

Oklahoma’s Supreme Court request

In seeking relief from the Supreme Court, Oklahoma officials claimed the state department of health was stripped of $4.5 million “solely” because it will not provide abortion referrals. They said the Title X funds are crucial to Oklahoma’s provision of family planning services through local health departments, and warned that depriving the state’s rural and urban communities of Title X services would be “devastating.”

Citing Supreme Court precedent, the state argued the federal government cannot impose on it an obligation to provide abortion referrals when it is not clearly required by Title X.

“HHS’s regulation foists upon Oklahoma a requirement concerning an issue that has been recognized as specifically reserved to the people to address in Dobbs,” Oklahoma officials wrote in a filing, referring to the Supreme Court’s 2022 decision reversing Roe. They continued, “HHS deliberately sought to impose the executive branch’s policy preferences on the states, including Oklahoma, and upset the federal-state balance on this important issue.”

But the Justice Department argued that nothing in the case impacts Oklahoma’s ability to regulate abortion within its borders and questioned how referring patients to a hotline could violate the state’s prohibition on advising or procuring an abortion.

The Oklahoma State Department of Health could also decline the Title X award, Solicitor General Elizabeth Prelogar wrote in a filing.

“HHS determined that counseling and referral are ‘critical for the delivery of quality, client-centered care.’ Without them, patients would be deprived of neutral information about ‘all pregnancy options,'” she wrote. “That runs squarely counter to Title X’s fundamental goal.”

Oklahoma had asked the Supreme Court to issue its decision by Aug. 30, the Biden administration’s deadline for when it would begin distributing the federal dollars to other entities.

A similar dispute over Title X funding for Tennessee is also playing out in the courts. That case involves a $7 million grant the Biden administration declined to issue after the state wouldn’t agree to provide Title X patients with the national call-in hotline where operators would supply them with referral information. 

Tennessee, like Oklahoma, outlawed most abortions in the state after the Supreme Court overturned Roe, and said it would only offer to provide information and counseling for “all options that are legal” in the state.

A federal district court and the U.S. Court of Appeals for the 6th Circuit declined to block the Biden administration from discontinuing the funding.