Oklahoma will try to convince the Tenth Circuit on Friday that it’s entitled to collect federal family planning services grant money, even though it won’t comply with the conditions for the grant.

The case will have implications throughout the country because many states that have criminalized abortion receive federal family planning funding through Title X.

The crux of the issue is whether HHS can pull money from those states if they follow Oklahoma’s lead and refuse to comply with the referral rule. The rule mandates that state-funded providers give patients nondirective information about all their options, including abortion, followed by facts about where the service could be obtained, if asked.

A ruling that goes against Oklahoma could disrupt Americans’ access to taxpayer-funded family planning services, including contraception—which the state says will cost it about $4.5 million. The state, however, isn’t the only Title X grantee in Oklahoma, and private providers have stepped in to offer family planning services to clients, the government said in its response brief, which the state says there’s no evidence of.

The US Department of Health and Human Services awarded Oklahoma millions of dollars to fund Title X programs but revoked the grant money after the state refused to say that it would require state-funded providers to give patients information about abortion. The US Court of Appeals for the Tenth Circuit will hear oral arguments Friday on whether the state can get the money back.

Oklahoma is “trying to have its cake and eat it too,” Brigitte Amiri, a deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, said. “That’s not how grant programs work,” she said. The ACLU filed an amicus brief supporting the government.

This case involves one of many auxiliary issues that arose after the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June 2022, which gave states the authority to outlaw abortion in all but very limited circumstances.

Program Rules

Title X of the Public Health Act is the only federal program that awards public and private entities taxpayer money to pay for family planning services. The law specifically prohibits the agency from funding “programs where abortion is a method of family planning.”

Rachel Morrison, who directs the Ethics and Public Policy Center’s HHS Accountability Project, said it’s “absurd to think” Oklahoma could lose Title X funding for not referring for abortions when the statute itself prohibits it. The center filed a friend of the court brief in the Sixth Circuit, which will hear arguments in July in a similar suit involving Tennessee’s loss of family planning money.

But Congress unambiguously gave HHS authority to impose conditions on grants made under Title X, Miriam Becker-Cohen told Bloomberg Law. Becker-Cohen is appellate counsel at the Constitutional Accountability Center in Washington, which filed a friend of the court brief.

The US Supreme Court affirmed that the agency had that power in 1991’s Rust v. Sullivan, Amiri said. Rust answered the “big picture question,” and the Sixth Circuit closely followed its reasoning in November 2023 when it said an Ohio-led challenge to the Biden Administration’s 2021 version of the rule wasn’t likely to succeed, she said.

It shouldn’t “require more than a mere citation” to that decision to resolve this case, Becker-Cohen said.

New Issues

The Sixth Circuit’s ruling in the Ohio case has no bearing on Oklahoma’s suit, Morrison said. It’s not binding on the Tenth Circuit and involves different issues, such as whether the agency gave the state sufficient notice of the abortion referral condition, she said.

Under the US Constitution’s spending clause, the federal government can place conditions on money it awards to third parties, but the government must notify awardees of them, Morrison said. “Nothing in HHS’s abortion referral requirement indicated that referrals for unlawful abortions would be required,” she said. Family planning service providers can’t legally refer for abortions in Oklahoma, she said.

Amiri disagreed. Oklahoma law doesn’t prevent family planning service providers from referring patients for abortions in states where they’re lawful, she said. Additionally, some abortions are legal in Oklahoma, although the exceptions are narrow, she said.

In any event, Oklahoma knew about the referral rule when it applied for the grant, and can’t now complain that it lacked sufficient notice, Becker-Cohen said.

Conscience Rights

Oklahoma is also saying that HHS’s insistence on referral rule compliance would “force” Oklahoma to discriminate against health-care providers by “yanking” their funding for conscience-based refusals to make abortion referrals, according to Alliance Defending Freedom senior counsel Chris Schandevel. That would violate the federal Weldon Amendment, which prohibits discrimination on this basis, he said.

A footnote in the Ohio case “strongly” suggested “that arguments based on federal conscience protections would have prevailed,” he said. ADF filed an amicus brief on behalf of professional medical groups that oppose abortion.

The states aren’t health-care entities protected by the Weldon Amendment, Amiri said. Being required to “play by the same rules as everyone else” isn’t discrimination, she added.

Oklahoma is appealing from Judge Joe Heaton’s order denying the state’s request for a preliminary injunction forcing HHS to reinstate the money. Heaton, of the US District Court for the Western District of Oklahoma, announced his decision in a bench ruling.

The cases are Oklahoma v. U.S. Dep’t of Health & Human Servs., 10th Cir., No. 24-6063, 5/31/24.