Oklahoma’s request to the U.S. Supreme Court for an emergency order to stop the Biden Administration from blocking federal family planning money it lost last year was denied Tuesday.
The state lost its funding 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.
The U.S. Supreme Court denied the state’s application without explaining its reasoning. Although it did note Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted the application.
Oklahoma Attorney General Gentner Drummond’s communications director Phil Bacharach said in an email the office will explore its options moving forward.
“While the denial is obviously disappointing, Attorney General Drummond is pleased that three Supreme Court justices were willing to step in and stop the Biden Administration’s lawless overreach at this preliminary juncture,” Bacharach said.
Drummond challenged the state’s loss of $4.5 million in Title X funding last year with a lawsuit and, later, a motion for an injunction against the Department of Health and Human Services (HHS).
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 district court, Drummond appealed to the U.S. Court of Appeals for the 10th Circuit with three main arguments. Those include:
- The Constitution’s spending power prohibits Congress from imposing ambiguous conditions on states in exchange for federal funds.
- 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 call-in number to a hotline that provides information about family planning, including abortion. 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 appeals court addressed those arguments in a 2-1 ruling, saying the state isn’t entitled to the Title X funding.
The state further argued in its August petition to the Supreme Court it faces irreparable harm without an injunction.
Only a few Title X sites remain in Oklahoma. When the state lost its Title X money, the federal government sent a $3.3 million share of the state’s funds to the Missouri Family Health Council. The nonprofit granted money to Oklahoma clinics under Planned Parenthood Great Plains, which also provides reproductive health care in Arkansas, Kansas and Missouri.
“Once this funding is distributed, Oklahoma will not likely be able to recoup the funds as monetary damages due to sovereign immunity as there is no way for Oklahoma or the federal government to claw back distributions from entities that received funding,” the petition reads.
