WASHINGTON (CN) — The Department of Justice on Thursday asked the Supreme Court to reject an appeal from Oklahoma seeking to restore millions in federal family-planning funds, casting the case as an end-run around Biden administration abortion policy that could threaten other federal spending programs if successful.
Emergency appeals at the high court should be reserved for questions with immediate practical consequences of nationwide significance, U.S. Solicitor General Elizabeth Prelogar told the justices — not for a fight over a small discretionary grant to a single state agency.
“Even if Oklahoma could satisfy the other prerequisites for relief, the court should not encourage the invocation of its emergency docket in cases with such modest practical stakes,” Prelogar wrote in a brief before the court.
The legal fight began after the U.S. Department of Health and Human Services revoked a $4.5 million grant allocated to Oklahoma’s health department, claiming that officials there had failed to comply with conditions on the funds.
Under Title X, patients must receive neutral, factual information on all pregnancy options. Oklahoma says providing this information would violate the state’s ban on abortion.
Title X funds — which cover reproductive health care for low-income and rural communities — sometimes provide for abortion access and sometimes don't, depending on who's in the White House. Under the Trump administration, the feds prohibited abortion counseling as a method of family planning.
In 2021, the Biden administration restored counseling and referral requirements, finding that the 2019 Trump rule interfered with the patient-provider relationship.
Just a year later, though, the Supreme Court issued its blockbuster ruling overturning Roe v. Wade. The ruling triggered Oklahoma’s near-total ban on abortion, making advising or procuring an abortion for any woman a felony.
State lawmakers ordered the health department to develop and distribute educational information to achieve an abortion-free society. The department says Title X requirements conflict with the Legislature’s order.
After losing its 2023 grant, Oklahoma sued HHS to try to preserve its 2024 funding. The state said the administration’s Title X conditions violated the Constitution’s spending clause.
“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,” the state wrote in a brief before the court.
Oklahoma filed an emergency appeal at the Supreme Court after two lower courts refused to grant its injunction requests.
But the framing of Oklahoma’s request threatens other funding schemes, the Biden administration says. That's because Congress routinely conditions federal grants on compliance with agency requirements.
“Oklahoma’s radical reimagining of the Spending Clause would invalidate a host of regulatory conditions that have long governed federal spending programs ranging from Title X to Medicare to infrastructure funding,” Prelogar wrote.
In a separate case in Ohio, Oklahoma and 11 other states are challenging the 2021 abortion referral requirements. The Justice Department argues that case is better-suited for a review of agency rules.
By contrast, the feds argue the Oklahoma-specific case does not meet the high standard for emergency relief.
In her brief, Prelogar noted that the Title X grant represents a small portion of the $541.2 million in federal funding that Oklahoma currently receives.
In 2023, the Oklahoma Legislature provided substitute funding to make up for the terminated Title X grants. Lawmakers should be able to do the same for this year’s funds, Prelogar said.
Oklahoma also claimed that the 2021 requirements violatedthe Weldon Amendment, a federal law preventing the government from conditioning federal funding on abortion referrals if abortion goes against the grantee's religious or moral beliefs.
The Biden administration argues the state health department isn’t protected under the amendment. It says Oklahoma conceded as much during arguments in the Sixth Circuit. And even if the Oklahoma Health Department qualified for those protections, Prelogar said, the department could avoid a direct abortion referral by simply providing patients with the number for a third-party hotline.
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