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Supreme Court won’t stop Biden administration from withholding Title X funding from Oklahoma
Washington — The Supreme Court on Tuesday rejected a request from Oklahoma officials seeking to restore federal family planning grant funding to the state’s health department after it refused to offer patients a hotline phone number that would provide counseling on pregnancy options, including abortion.
The justices turned down the bid for emergency relief from the state, which had asked the Supreme Court to temporarily stop the Department of Health and Human Services from withholding $4.5 million in federal Title X funding from the Oklahoma State Department of Health. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted Oklahoma’s request.
The dispute is the latest involving abortion to land before the nation’s highest court in the wake of its June 2022 decision overturning Roe v. Wade. As more than half of the states banned or imposed stringent restrictions on abortions following the ruling, including Oklahoma, the Biden administration has sought to protect access at the federal level, including through an emergency care law that was at the center of a dispute before the justices in its most recent term.
The fight over Title X funding
The rule that gave rise to the case involving Title X funding for Oklahoma was announced in October 2021, months before Roe’s reversal. It requires Title X projects to offer pregnant patients “nondirective counseling” about family planning options, including abortion, as well as information about where services can be obtained if requested by a patient.
The Oklahoma State Department of Health received a Title X grant in 2022, which was used to provide funding to city and county health departments. After the Supreme Court rolled back the constitutional right to abortion, the department and the Biden administration discussed changing the counseling and referral policies for its Title X project, as a new Oklahoma law outlawed abortion, according to court filings. The measure also made it a felony for a person to advise or procure an abortion for a pregnant woman.
The two entities reached an agreement under which the state health department could comply with the 2021 rule by ensuring interested Title X patients were offered the phone number of a national hotline that would provide counseling and referral information. Based on the accommodation, the Department of Health and Human Services agreed to provide $4.5 million to the state agency from April 2023 through March 2024.
But the Oklahoma health department soon reversed course and said Title X patients who seek pregnancy counseling wouldn’t be provided with the call-in number, according to a Justice Department filing. As a result, the Biden administration eventually terminated the award because it said the state was violating its 2021 rule.
Oklahoma officials sued the federal government over its decision and sought to temporarily block termination of its award and force the Department of Health and Human Services to provide additional funding in the future. The state argued the Biden administration violated the Constitution’s Spending Clause and a federal conscience law known as the Weldon Amendment by withholding the Title X funds.
The Department of Health and Human Services prevailed before the federal district court and U.S. Court of Appeals for the 10th Circuit. The appeals court ruled that Congress allowed the federal government to determine eligibility for Title X grants, which are subject to conditions deemed appropriate by the secretary of health and human services.
The divided 10th Circuit three-judge panel also found it unlikely that the Biden administration violated the Weldon Amendment, in part because the state failed to prove that the federal government discriminated against it for declining to refer pregnant women for abortions.
Oklahoma’s Supreme Court request
In seeking relief from the Supreme Court, Oklahoma officials claimed the state department of health was stripped of $4.5 million “solely” because it will not provide abortion referrals. They said the Title X funds are crucial to Oklahoma’s provision of family planning services through local health departments, and warned that depriving the state’s rural and urban communities of Title X services would be “devastating.”
Citing Supreme Court precedent, the state argued the federal government cannot impose on it an obligation to provide abortion referrals when it is not clearly required by Title X.
“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,” Oklahoma officials wrote in a filing, referring to the Supreme Court’s 2022 decision reversing Roe. They continued, “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.”
But the Justice Department argued that nothing in the case impacts Oklahoma’s ability to regulate abortion within its borders and questioned how referring patients to a hotline could violate the state’s prohibition on advising or procuring an abortion.
The Oklahoma State Department of Health could also decline the Title X award, Solicitor General Elizabeth Prelogar wrote in a filing.
“HHS determined that counseling and referral are ‘critical for the delivery of quality, client-centered care.’ Without them, patients would be deprived of neutral information about ‘all pregnancy options,'” she wrote. “That runs squarely counter to Title X’s fundamental goal.”
Oklahoma had asked the Supreme Court to issue its decision by Aug. 30, the Biden administration’s deadline for when it would begin distributing the federal dollars to other entities.
A similar dispute over Title X funding for Tennessee is also playing out in the courts. That case involves a $7 million grant the Biden administration declined to issue after the state wouldn’t agree to provide Title X patients with the national call-in hotline where operators would supply them with referral information.
Tennessee, like Oklahoma, outlawed most abortions in the state after the Supreme Court overturned Roe, and said it would only offer to provide information and counseling for “all options that are legal” in the state.
A federal district court and the U.S. Court of Appeals for the 6th Circuit declined to block the Biden administration from discontinuing the funding.
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Senate passes $895 billion defense bill with controversial gender-affirming care restriction
Washington — The Senate approved the mammoth $895 billion National Defense Authorization Act on Wednesday, despite concern from some Democrats over a controversial policy restricting gender-affirming care for children of servicemembers.
In a 85 to 14 vote, the Senate approved the legislation, which the House passed last week. Eleven Democrats and three Republicans voted against it in the upper chamber. The bill now heads to President Biden’s desk for his signature.
The 1,800 page national security legislation to authorize funding for the Defense Department for fiscal year 2025. But the bill includes a handful of controversial policies, like the gender-affirming care restriction, and lost support from the majority of Democrats in the House.
The Democratic-controlled Senate pushed forward with the measure nonetheless. Senate Majority Leader Chuck Schumer noted that while the NDAA “isn’t perfect,” it still “includes some very good things that Democrats fought for” — citing provisions aimed at standing up against the Chinese Communist Party, boosting the use of artificial intelligence for national defense and expanding domestic tech innovation.
“Congress has passed the NDAA on a bipartisan basis for over six straight decades, and this year will be no different,” Schumer said ahead of the vote on Wednesday. “We’re passing the NDAA and that’s a very good thing.”
Andrew Harnik / Getty Images
Sen. Ed Markey, a Massachusetts Democrat, derided the gender-affirming care restriction earlier this week, calling it “the product of a nationwide campaign against trans rights” and arguing that the legislation’s approval would mark “the first anti-LGBTQ law passed by Congress in decades.”
Still, the outcome of the vote was all but guaranteed after the Senate advanced the measure on Monday in a 83-12 procedural vote.
Sen. Roger Wicker of Mississippi, the ranking Republican on the Senate Armed Services Committee, celebrated the NDAA’s “immense accomplishments,” including a 14.5% pay raise for junior service members and investments in recruitment capabilities. But he said Congress “missed an opportunity to strengthen the president-elect’s hand as he takes office in a precarious world situation.”
Wicker outlined that the Armed Services Committee proposed $25 billion for modernization programs, including for missile defense, ship building and counter-drone technology, saying “this should have been part of the bill today.”
Sen. Jack Reed, a Rhode Island Democrat who chairs the Armed Services Committee, called the legislation a “strong, forward looking bill that we can all be proud of.” But he said he “strongly” disagrees with the inclusion of the gender-affirming care provision, calling it a “misguided provision.”
“I share many of my colleagues’ frustrations that the bill includes a provision that would prohibit gender-affirming health care for minors under certain circumstances,” Reed noted, adding that he voted against the provision in committee. “We will continue to work to ensure the health care rights of all military personnel and their dependents.”
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A person in Louisiana has the first severe illness caused by bird flu in the U.S., the Centers for Disease Control and Prevention announced Wednesday.
Officials determined the patient had exposure to sick and dead birds in backyard flocks, though an investigation into the source of the infection in the state is ongoing. This is also the first case of H5N1 bird flu in the U.S. that has been linked to exposure to a backyard flock, a news release noted. Officials have not shared details on the patient’s symptoms.
The case was first confirmed by health officials Friday, adding to the total of 61 reported human cases of H5 bird flu reported in the United States. Another severe case of H5N1 has been reported in a teen in British Columbia.
A release from the Louisiana Department of Health Wednesday added the patient, a resident of southwestern Louisiana, is currently hospitalized. Until now, the H5N1 cases in the U.S. have been mild, including conjunctivitis and upper respiratory symptoms.
“While the current public health risk for the general public is low, people who work with birds, poultry or cows, or have recreational exposure to them, are at higher risk,” the state’s health department added.
Mild illnesses have been seen in dairy and poultry workers who had close contact with infected animals. In two cases, no known source of the illnesses have been identified, which has worried infectious disease experts about the possibility of human-to-human transmission, which could trigger a pandemic.