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Sunday, July 21, 2024 | Back issues
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OK asks 10th Circuit to remove abortion referral requirement from federal family planning funds

The 2022 Dobbs decision revived Oklahoma’s century-old abortion ban and levies felony charges for anyone who helps a pregnant person receive one.

DENVER (CN) — The Oklahoma State Department of Health on Friday asked the 10th Circuit to overturn a lower court’s denial of an injunction and bar the federal government from requiring the state to provide referrals for abortions in order to receive family planning funds.

“If any condition goes, then couldn’t they impose performing abortions in the state?” argued Zach West, director of special litigation for the Oklahoma Office of the Attorney General.

The afternoon sun shone so brightly through the courtroom skylight at the Byron White U.S. Courthouse in downtown Denver that Senior U.S. Circuit Judge David Ebel entered joking that the spotlights were on.

Oklahoma first joined the federal government’s Title X program in 1971, through which it has provided residents access to family planning, infertility and adolescent services across 68 county health departments. The money covers much-needed translators to cross language barriers across the state.

The 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization however revived Oklahoma’s century-old abortion ban as well as felony charges for anyone found “advising or procuring an abortion for any woman.”

Since state law prohibits Oklahoma from providing referrals for abortions, the U.S. Department of Health and Human Services refused to renew the state’s grant for next year, cutting off $4.5 million of much-needed funding.

Oklahoma sued the federal government last November. U.S. District Judge Joe Heaton, appointed by George W. Bush, denied the state’s motion for preliminary injunction from the bench on March 26, 2024. Oklahoma appealed within a week.

The federal government gave the state a 1-800 number to provide to patients, fulfilling the referral requirement. Oklahoma however questioned the neutrality of the phoneline’s message.  

“There’s a difference between saying ‘here’s your options,’ and ‘here’s another option in another state that we don’t think should exist,’” West argued. “It’s like having someone call up a suicide hotline that tells them ‘suicide is also an option in another state that supports it.’”

U.S. Circuit Judge Robert Bacharach, appointed by Barack Obama, suggested the attorneys work on the phoneline’s messaging to find truly neutral language, but West declined to say whether that would settle the issue.

“The devil is in the details,” West said.

U.S. Circuit Judge Richard Federico, appointed by Joe Biden, asked U.S. Attorney Brian Springer whether the federal government engaged in good faith negotiations with the state before implementing the rule.

Springer noted that the federal agency isn’t required to negotiate, but said it did try to work with the state, and pointed out that there is a process to change bad rules.

“Here, we have a binding rule from HSS and all we did was apply that regulation to the state. Oklahoma could petition the agency for a change in the rule,” Springer argued. “The state didn’t use the proper procedure to refute the rule that requires it to provide neutral, factual information.”

Ebel perked up, asking if he missed something.

“I didn’t think you were arguing that if they didn’t do that they are procedurally barred from doing it another way,” Ebel said. “I thought you were just saying there is an easier, more amicable way of doing this.”

On rebuttal, West immediately addressed the question of engaging in rulemaking, and said litigation looked like a much quicker process.

Oklahoma joined a similar Title X challenge led by Ohio, in which the Sixth Circuit rejected an injunction appeal last year.

Although the panel did not indicate how it would decide the case, Bacharach promised to keep the parties' requested July deadline in mind.

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Categories / Appeals, Government, Health, International

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