The U.S. Court of Appeals for the 10th Circuit said Monday Oklahoma isn’t entitled to federal family planning money it lost last year when it refused to meet one of the grant’s requirements to provide counseling to pregnant people on all options, including abortion if a patient requests it.
Oklahoma Attorney General Gentner Drummond challenged the state’s loss of $4.5 million in Title X funding with a lawsuit and, later, a motion for an injunction against the Department of Health and Human Services (HHS). The goal was to recoup the lost money and prevent further loss in future grant cycles.
Clinics participating in Title X programs offer confidential and low-cost family planning resources for all ages, including contraceptives, counseling and pregnancy testing. The Oklahoma State Department of Health (OSDH) had received Title X funding since 1971.
When the motion failed in the district court, Drummond appealed with three main arguments. Those include:
- The Constitution’s spending power prohibits Congress from imposing ambiguous conditions on states in exchange for federal funds. Oklahoma argued that Title X is ambiguous, preventing HHS from imposing conditions related to abortion counseling and referral. It said it lacked sufficient notice of the counseling and referral requirement because it was imposed by an HHS regulation over the text of Title X.
- The Weldon Amendment — which prevents HHS funds from going to government agencies that discriminate against health care entities that refuse to provide abortion referrals — was violated when Oklahoma was required to provide the hotline. Oklahoma argued OSDH is a health care entity and the hotline constitutes a referral. Therefore, it said it was being subject to discrimination for declining to make referrals.
- HHS acted arbitrarily and capriciously.
The court addressed each of these arguments in its 2-1 ruling.
It addresses the first argument by saying Title X unambiguously authorized the agency to impose conditions for federal grants, and HHS established conditions for Title X grants.
It said Oklahoma could make an informed decision based on Title X’s language and HHS’s conditions.
It addresses the second argument by noting the Weldon Amendment would apply only if HHS required OSDH to make referrals for abortions. HHS recognized Oklahoma had a near-total abortion ban and said it could use the national hotline to provide neutral, nondirective information about family-planning options.
It says the district court didn’t make an error in rejecting the state’s argument that sharing the hotline would constitute a referral to facilitate an abortion.
“The call-in number offered an opportunity to supply neutral information regarding an abortion,” U.S. Circuit Judge Robert Bacharach wrote. “Oklahoma rejected the option of a national call-in number, but didn’t question the neutrality of the information provided.”
It addresses the third argument by saying the court didn’t make an error in rejecting Oklahoma’s characterization of HHS’s actions as arbitrary or capricious.
Drummond told the Catholic News Agency Tuesday he was “disappointed by the ruling.”
“As the dissent rightly points out, ‘rather than complying with its statutory obligations,’ the federal government stripped millions in funding from the Oklahoma Health Department because it refused to refer women for abortions,” Drummond said.
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