The huge stakes in the Supreme Court’s new abortion case

Oklahoma v. Department of Health and Human Services is the sort of case that keeps health policy wonks up late at night.

On the surface, it involves a relatively low-stakes fight over abortion. The Biden administration requires recipients of federal Title X grants — a federal program that funds family-planning services — to present patients with “neutral, factual information” about all of their family-planning options, including abortion. Grant recipients can comply with this requirement by giving patients a national call-in number that can inform those patients about abortion providers.

Oklahoma had long received Title X grants to fund health programs in the state. After receiving a $4.5 million grant in 2023, however, the state decided it would no longer comply with the requirement to give patients the call-in number. Accordingly, the administration terminated Oklahoma’s grant.

Now, however, Oklahoma wants the Supreme Court to allow it to receive Title X funds without complying with the call-in number rule. Its suit has landed on the Court’s shadow docket, a mix of emergency motions and other expedited matters that the justices sometimes decide without full briefing or oral argument.

Oklahoma raises two arguments to justify its preferred outcome, one of which could potentially sabotage much of Medicare and Medicaid. Briefly, the state claims that federal agencies may not set the rules that states must comply with when they receive federal grant money, even if Congress has explicitly authorized an agency to do so. Taken seriously, Oklahoma’s proposed limit on federal agencies’ power would profoundly transform how many of the biggest and most consequential federal programs operate. 

As the Justice Department points out in its Oklahoma brief, “Medicare’s ‘Conditions of Participation’ for hospitals alone span some 48 pages in the Code of Federal Regulations.” All of those rules, plus countless other federal regulations for Medicare, Medicaid, and other programs, could cease to function overnight if the justices accept Oklahoma’s more radical argument. (Oklahoma’s second argument, which contends that the call-in rule is contrary to a different federal law, is less radical and more plausible than its first.)

This fight over whether Title X grant recipients must provide some abortion-related information to patients who seek it will be familiar to anyone who closely follows abortion politics. In 1988, the Reagan administration forbade Title X grant recipients from providing any counseling on abortion, and the Supreme Court upheld the Reagan administration’s authority to do so in Rust v. Sullivan (1991). 

Since then, the policy has sometimes changed depending on which party controls the White House. The Reagan-era policy was eliminated during the Clinton administration, and then revived in 2019 by the Trump administration. Biden’s administration shifted the policy again during his first year in office.

Nevertheless, the state of Oklahoma argues that the current administration exceeded its authority when it enacted a rule that is similar to the regulations that were in effect for most of the last several decades.

The huge stakes in the Oklahoma case, briefly explained

The Supreme Court has long held that Congress may place conditions on a federal grant program and that states must comply with those conditions if they wish to receive a grant. In South Dakota v. Dole (1987), however, the Court laid out a few limits on this power to impose conditions on grants, including a requirement these conditions must be unambiguous so that states may “exercise their choice knowingly, cognizant of the consequences of their participation.”

Rust held that the federal statute governing Title X, which provides that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning,” does not speak to whether Title X programs may refer patients to other medical providers who do offer abortions. Thus, the law is “ambiguous” regarding such referrals, and the Court concluded that the Reagan administration could resolve this ambiguity by banning abortion-related referrals.

If that were all the statute said, Oklahoma would have a strong argument in its pending case before the Supreme Court. Dole ruled that conditions on federal grants must be unambiguous, and Rust ruled that Title X is ambiguous with respect to whether patients should be provided information about abortions. So the naked statute doesn’t unambiguously convey to Oklahoma that it must refer Title X patients to a call-in number if they need information about abortion.

But the Title X statute also contains a provision that states that “grants and contracts made under this subchapter shall be made in accordance with such regulations as the [Health and Human Services (HHS)] Secretary may promulgate,” and that Title X grants are “subject to such conditions as the Secretary may determine to be appropriate to assure that such grants will be effectively utilized for the purposes for which made.”

Thus, the statute unambiguously gives HHS the authority to write binding rules. And Oklahoma knew when it accepted a Title X grant that it was subject to those rules, including the Biden administration’s rule requiring grant recipients to provide the call-in number to patients.

Oklahoma, however, argues that Congress cannot delegate this kind of rulemaking power to a federal agency. If it wants to impose a condition on a federal grant, Congress must write the exact terms of that condition into the statute itself.

The implications of this argument are breathtaking, as there are scads of agency-drafted rules governing federal grant programs. The Medicare rules mentioned in the Justice Department’s brief, for example, cover everything from hospital licensure to grievances filed by patients to the corporate governance of hospitals receiving Medicare funds. The rules governing Medicaid can be even more complicated. These are more vulnerable to a legal challenge under Oklahoma’s legal theory because Medicaid is administered almost entirely by states receiving federal grants.

Oklahoma, in other words, is asking the Court to fundamentally alter how nearly every single aspect of hospital and health care administration and provision works in the United States — and that’s not even accounting for all the federal grant programs that are not health care-related.

It is unfortunate, to say the least, that this issue arises in the context of an abortion dispute. About a year ago, the Supreme Court rejected a similar — and similarly radical — legal theory that would have rendered huge swaths of federal Medicaid law practically unenforceable. The facts of that case, however, involved allegations of elder abuse by a nursing home and not the politically fraught issue of abortion.

The question in Oklahoma is whether this Court, with its 6-3 Republican supermajority, will show similar wisdom in an abortion-related case.

If the justices are determined to rule in Oklahoma’s favor, there’s a way to do it without breaking Medicare and Medicaid

Oklahoma does raise a second legal argument in its suit that would allow it to receive a Title X grant, but that would not require the Court to throw much of the US health system into chaos. The Biden administration’s requirement that Title X providers must give patients seeking abortion information a call-in number arguably conflicts with a federal law called the Weldon Amendment.

The Weldon Amendment prohibits Title X funds from being distributed to government agencies that subject “any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 

The three appellate judges who previously heard the Oklahoma case split on whether the Weldon Amendment prohibits the Biden administration’s rule. Two judges concluded, among other things, that providing a patient with a phone number that will allow them to learn about abortion is not the same thing as referring a patient for an abortion, and thus that the Biden rule was permissible. One judge (who is, notably, a Biden appointee) disagreed.

In any event, Oklahoma’s Weldon Amendment argument gives this Supreme Court a way to rule against the Biden administration’s pro-abortion access policy without doing the kind of violence to Medicare and Medicaid contemplated by Oklahoma’s other argument. If the justices are determined to rule in Oklahoma’s favor, anyone who cares about maintaining a stable health system in the United States should root for the Court to take this less radical option.