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The Supreme Court on Tuesday backed a Biden administration plan to redistribute $4.5 million in public health funding that had been earmarked for Oklahoma because the state bars clinics from giving out a hotline number that patients can use to access information about abortion.
Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have sided with the state.
Though the emergency appeal was focused mainly on the federal government’s power to set terms and requirements on federal grants, it was also the latest case to reach the court stemming from its 2022 decision to overturn Roe v. Wade. Earlier this year, the court declined to block efforts by the Food and Drug Administration to ease access to the abortion pill mifepristone and temporarily permitted abortions in medical emergencies in Idaho.
Oklahoma is one of several states challenging a US Department of Health and Human Services rule that requires clinics receiving federal family planning funds to offer pregnant patients counseling about their options, including abortion, if requested. After losing in a federal appeals court, Oklahoma filed its emergency request at the Supreme Court in early August, seeking to protect its share of that funding despite the rule.
The counseling rule isn’t new to the Biden administration. Democratic and Republican presidents have gone back and forth for years on whether to condition federal family planning funding on a requirement that such information is provided to patients.
What is new, however, is the Supreme Court’s divisive 2022 ruling overturning Roe, the 1973 decision that established a constitutional right to abortion. That decision led to a series of strict laws banning or severely limiting access to the procedure in red states. After the Supreme Court’s ruling in that case, Dobbs v. Jackson Women’s Health Organization, a law took effect in Oklahoma that made “advising or procuring” an abortion a felony.
The federal rule “foists upon Oklahoma a requirement concerning an issue that has been recognized as specifically reserved to the people to address in Dobbs,” the state told the Supreme Court.
The Justice Department had countered that Congress routinely allows federal agencies to set conditions for federal grants.
“Oklahoma’s radical reimagining of the spending clause would invalidate a host of regulatory conditions that have long governed federal spending,” the Biden administration told the Supreme Court. That outcome, the government warned, could fundamentally change programs from “Medicare to infrastructure funding.”
Oklahoma based its argument in part on a provision Congress has included in annual appropriations bills for years, known as the Weldon Amendment, that prohibits the HHS from requiring health care entities to provide or refer for abortions. The Biden administration countered that Oklahoma’s health department isn’t covered by that provision, which is named after a Republican former congressman from Florida.
The 10th US Circuit Court of Appeals previously declined to issue an order blocking the Biden administration from denying the grants. The 2-1 panel concluded that federal health officials had the authority to implement the requirement. The court also reasoned that providing the national hotline number did not amount to a referral under the Weldon Amendment.
The Justice Department made that very argument: Providing the hotline number is not the same thing as a referral.
A clinic “could have responded to a patient’s request for information about abortion by saying: ‘We cannot discuss abortion with you or direct you to an abortion provider, but you may call this hotline for nondirective information about your options,’” the government told the court in its brief.
“That statement is not a referral for abortion” within the meaning of federal law, the administration wrote.
Another appeals court, the 6th US Circuit Court of Appeals, sided with the Biden administration late last month in a similar case filed by Tennessee. The court, on a 2-1 vote, found that Tennessee “knowingly and voluntarily accepted the grant’s terms.”
State officials across the country distribute the federal funding at issue to public health services and county health departments.
Oklahoma had asked the justices to act by August 30. After that date, the federal government had said it would distribute Oklahoma’s grant to others.
