Three conservative justices dissented, indicating they would have restored the grant.
The Supreme Court denied on Sept. 3 Oklahoma’s emergency application to restore a canceled $4.5 million family planning grant.
Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito dissented from the decision to deny the injunction against the U.S. Department of Health and Human Services (HHS), the federal agency that withheld the grant.
The three justices did not explain why they would have granted the state’s request.
HHS argued Oklahoma should lose the funding because the state won’t include abortion in its information offerings about family planning services.
Oklahoma law forbids it from making abortion referrals. Abortion is banned in Oklahoma except to save the life of the mother.
But HHS says states must provide abortion information to qualify for grants under Title X of the Public Health Service Act of 1970.
A 2021 HHS regulation says those receiving funding must “offer pregnant clients the opportunity” to receive “neutral, factual information” regarding family planning options, including abortion.
Oklahoma allocates Title X funds to city and county health departments, which use it to promote family planning, including infertility services.
On July 15, the U.S. Court of Appeals for the 10th Circuit affirmed a federal district court’s March 26 denial of Oklahoma’s request for a preliminary injunction against HHS. The case is still before the lower court.
The Supreme Court’s new ruling came after a federal appeals court upheld the decision of HHS to deny a $7 million family planning grant to Tennessee, which also refused to provide abortion information to program participants. On Aug. 26, the U.S. Court of Appeals for the Sixth Circuit affirmed that funding denial.
In an Aug. 27 filing with the Supreme Court, HHS referenced the Sixth Circuit decision.
The circuit court ruled 2–1 that Tennessee would probably not succeed at trial with its argument that the abortion information requirement violates the U.S. Constitution’s spending clause. The state argued that such a mandate is valid only if imposed by Congress. The case remains pending in federal district court.
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