Supreme Court declines to restore Oklahoma federal family planning funds in abortion fight

The Supreme Court has declined to reinstate millions of dollars in federal funding for family planning services that the Biden administration stripped from Oklahoma after officials refused to provide a hotline number for patients to call and receive information on abortion. 

In an order Tuesday, the court denied Oklahoma’s request for an emergency injunction that would have stopped the administration’s efforts to block about $4.5 million in Title X family planning grants from the state while it continues to fight the decision. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted Oklahoma's request. 

The Biden administration in 2021 required that state-funded providers who want to receive money from the Title X program give patients “neutral, factual information and nondirective counseling” about all their options, including abortion, followed by facts about where the service could be obtained, if asked. 

In the wake of the Dobbs decision that overturned Roe v. Wade, the Department of Health and Human Services (HHS) said states such as Oklahoma that banned abortion could comply with the Title X rules by simply ensuring that providers offer the telephone number of a third-party hotline to patients who request pregnancy counseling or a referral. 

According to a brief from Solicitor General Elizabeth Prelogar, Oklahoma initially agreed to provide the accommodation but then “promptly revered course,” so HHS terminated the grant. HHS said the same conditions Oklahoma initially agreed to are currently in effect for every other Title X grantee in the country. 

Title X says grants cannot be used “in programs where abortion is a method of family planning,” and a 2004 appropriations rider called the Weldon Amendment bars discrimination against state agencies that decline to provide referrals for abortions.

Oklahoma Attorney General Gentner Drummond (R) said HHS’s actions violated the Weldon Amendment because it punished the state for declining to refer for abortions, even though that wasn’t a condition of the funding. 

The 10th U.S. Circuit Court of Appeals ruled 2-1 in July that HHS was allowed to withhold funding because the state did not meet the conditions for participation in the grant program. In a similar ruling, the 6th Circuit U.S. Court of Appeals denied Tennessee relief in a dispute over a $7 million grant.