Supreme Court allows HHS to divert funds over abortion referrals
Members of the Supreme Court sit for a group photo in 2022. (Jabin Botsford/The Washington Post)
The Supreme Court on Tuesday cleared the way for the Biden administration to strip millions of health care dollars from Oklahoma over its refusal to direct patients to information about abortions—a federal requirement that the state says would be at odds with its strict ban on terminating pregnancies.
Last year, the Biden administration diverted $4.5 million from Oklahoma’s family planning program, which primarily serves low-income or uninsured patients.
In challenging that decision, Oklahoma Attorney General Gentner Drummond told the Supreme Court that state health care organizations cannot be punished for not advising patients about ending their pregnancies. The Health and Human Services Department, the state said, is illegally imposing conditions on funding that are not specified in the half-century-old nationwide family planning program known as Title X.
After the Supreme Court eliminated the nationwide right to abortion in 2022, Oklahoma was one of more than a dozen states to broadly prohibit the procedure. State law also makes it a crime for any person to try to persuade a woman to terminate a pregnancy or to procure an abortion for any woman.
In July, the U.S. Court of Appeals for the 10th Circuit upheld the federal government’s right to deny the funding. A divided three-judge panel noted that the Health and Human Services Department had told the state that it could meet its obligation by giving patients a phone number for a national hotline that provides neutral information about pregnancy options, including abortion.
Oklahoma then asked the Supreme Court to intervene, seeking action by Aug. 30 to stop the Biden administration from withholding another year’s worth of the health care funding.
As is typical in emergency orders, the Supreme Court majority did not explain its reasons for refusing Oklahoma’s request to immediately intervene. Conservative justices Clarence Thomas, Samuel A. Alito, Jr. and Neil M. Gorsuch said they would have granted the state’s request.
While the federal government has long prohibited organizations from using Title X money to pay for abortions, the rules for implementing the statute and distributing about $286 million in annual federal funds have differed depending on the administration in power—and have repeatedly been subject to litigation.
In 2019, the Trump administration rewrote the rules, barring clinics that receive federal family planning aid from referring patients for abortions. That sparked a long-running legal battle with Planned Parenthood Federation of America and other groups over what opponents criticized as an “abortion gag rule.”
The Biden administration reversed course in 2021, saying it would no longer ban clinics from receiving funding. It later began to withhold funds from organizations that refused to make referrals.
Solicitor General Elizabeth B. Prelogar, defending the administration, told the court that there was no reason for the justices to take emergency action while litigation over the matter continues. The Oklahoma legislature has already provided substitute funding to make up last year’s shortfall, she wrote in a court filing, “and there is no reason to doubt that it can do the same this year.”
The court, she added, “should not encourage the invocation of its emergency docket in cases with such modest practical stakes.”
In a filing, Oklahoma’s attorneys said the Biden administration’s position also is not compatible with the Supreme Court’s decision in June to get rid of the 40-year-old legal doctrine known as Chevron. The high court’s ruling means judges no longer have to automatically defer to a federal agency’s reasonable interpretation of ambiguous language in a statute—which is what Oklahoma says is at issue with sections of Title X.
Oklahoma and 11 other states initially challenged the administration’s new rules requiring them to make referrals. The U.S. Court of Appeals for the 6th Circuit ruled against the states, in part because the federal government said providers with religious or moral objections would not be required to refer patients for abortions.
That case is still pending in the lower courts, and the issue could eventually return to the Supreme Court.
Separately, the 6th Circuit on Aug. 26 rejected a similar challenge from Tennessee after the federal government stripped $7 million in Title X funds from that state. As it had with Oklahoma, HHS told Tennessee officials that they could meet the conditions for funding by providing patients with the phone number for a hotline that offers counseling about prenatal care, adoption and abortion as well as information about where those services can be obtained if a patient requests it.
The appeals court said Congress made clear that complying with the federal government’s requirements is a “clear and unambiguous condition of receiving a Title X grant.”
