Supreme Court sides with Biden administration in dispute over Oklahoma abortion referrals

The Supreme Court on Tuesday rejected an abortion-related appeal from Oklahoma, ruling the Biden administration could cut off funding for family planning programs that do not offer pregnant patients “factual information” on all of their options, including abortion.

In a one-line order, the justices turned down Oklahoma’s appeal over dissents by Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.

The state’s attorneys argued that Oklahoma opposed all abortions and should not be required to refer women for abortions.

In defense of the long-standing federal guidelines, the Biden administration said these programs are required to do nothing more than give patients “the telephone number of a third-party hotline” that can provide information on prenatal care, adoptions or abortion.

In early August, Oklahoma’s attorneys lodged an emergency appeal with the Supreme Court . They were seeking to restore a grant of $4.5 million, asserting the state’s authority to enforce its ban on all abortions.

Two years ago, when the court overturned the right to abortion in the Dobbs case, the justices in the 5-4 majority said they were returning the abortion issue to the states.

Oklahoma officials told the court they were “exercising that right. ... The people’s elected representatives in Oklahoma have prohibited abortion except to preserve a woman’s life, and they have made it illegal to advise a woman to obtain an abortion.”

At issue was a federal program that since 1970 has provided grants to states for family planning programs.

Congress has said these “Title X” grants may not be used “in programs where abortion is a method of family planning.”

In 2004, Congress adopted the Weldon Amendment, which said the government may not discriminate against hospitals, insurers or other healthcare programs that refuse to pay for or provide referrals for abortion. Oklahoma cited both laws in its appeal.

But under Democratic administrations, federal officials have required states and their grant programs to offer patients “neutral, factual information and non-directive counseling” about their options, including prenatal care, adoption and abortion.

Oklahoma agreed at first to comply with these rules, but switched course last year and refused to provide patients with a hotline number where the patients could obtain more information if they chose to do so. At that point, the Department of Health and Human Services canceled the state’s small grant.

Oklahoma sued and lost before a federal judge and the U.S. 10th Circuit Court of Appeals in Denver. Those judges ruled for the Biden administration and said the state grant recipients were not being asked to provide referrals for abortion. The “mere act of sharing the national call-in number” would not “constitute a referral for the purpose of facilitating an abortion,” the appeals court said in a 2-1 decision.

The state’s attorneys sought an order that would restore their grant.

Solicitor Gen. Elizabeth Prelogar urged the court to turn down the appeal. Oklahoma has refused “to comply with the agreed-upon conditions, which are currently in effect as to every other Title X grantee in the nation,” she said.

Tennessee, Ohio and 10 other Republican-led states also sued to challenge the administration’s rules for Title X grants, but none of them have prevailed in the lower courts.