U.S. Supreme Court Upholds HHS’ Decision to Withhold Federal Grants as a Consequence of Oklahoma’s Failure to Comply with Federal Requirement for Abortion Counseling

The United States Supreme Court on Tuesday issued an order which will allow the Biden administration to withhold $4.5 million of federal funding from the Oklahoma State Department of Health. This decision is one in a wave of cases that has flowed from Dobbs, which eliminated the nationwide right to abortion in 2022, involving disputes over state abortion restrictions and federal grants.   

Federal money is distributed by the Department of Health and Human Services (“HHS”) to family planning clinics through Title X service grants. In 2021, the Biden administration issued a rule that requires Title X fund recipients to offer pregnant patients information about where abortion services may be obtained. The Oklahoma State Department of Health was a beneficiary of a Title X grant in 2022. However, following Dobbs many states, including Oklahoma, not only prohibited the abortions, but also made it a crime for any person to try to persuade a woman to obtain an abortion.

Despite Oklahoma’s stringent abortion restrictions, the Oklahoma State Department of Health and HHS were able to reach an agreement under which the former could retain its Title X funding. The Oklahoma State Department of Health agreed to offer the phone number of a national hotline that provided abortion counseling and information, and in return, HHS agreed to provide $4.5 million to the state.

Shortly after reaching an agreement with HHS, the Oklahoma State Department of Health reneged, refusing to provide Title X patients the number for the national abortion hotline. The state relied on Dobbs, insisting that “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.” The Biden administration responded by withholding the Title X grant due to the 2021 rule. The Justice Department argued that HHS is empowered 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 10th U.S. Circuit Court of Appeals agreed with the Biden administration, reasoning that HHS had the authority to implement that 2021 rule.

Following the 10th Circuit Court’s opinion Oklahoma petitioned the United States Supreme Court for an emergency appeal to restore the $4.5 million grant. The Court sided with the lower court and the Biden administration, rejecting Oklahoma’s application to enjoin HHS from withholding the Title X grant. Although, Justice Thomas, Justice Alito, and Justice Gorsuch would have granted the application. The Supreme Court decision did not provide any reasoning as to why Oklahoma’s petition was denied. Notably, a related decision from the 6th Circuit Court of Appeals rejected similar arguments from the Tennessee Department of Health when the federal government stripped the state of $7 million in Title X funds. The 6th Circuit Court made its position clear, writing that compliance with the federal government’s requirements is a “clear and unambiguous condition of receiving a Title X grant.”  Tennessee v. Becerra, No. 24-5220, 2024 WL 3934560 at *5 (6th Cir. Aug. 26, 2024).

As new developments arise, we will continue to update our Dobbs Decision Resource Center.  In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.