The enormous stakes in the Supreme Court's new abortion case, Oklahoma v. HHS

Oklahoma v. Department of Health and Human Services is the kind of case that keeps health policy experts awake late into the night.

On the surface, this is a battle over abortion with relatively little at stake. The Biden administration requires recipients of federal grants under Title X—a federal program that funds family planning services—to provide patients with “neutral, factual information” about all of their family planning options, including abortion. Grant recipients can meet this requirement by giving patients a nationwide phone number to call for information about abortion providers.

Oklahoma had long received Title X grants to fund state health programs. However, after receiving a $4.5 million grant in 2023, the state decided to no longer meet the requirement to provide patients with the phone number. Accordingly, the administration stopped 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. The state's lawsuit landed on the court's shadow docket, a mix of emergency motions and other expedited proceedings that the justices sometimes decide without full briefing or oral argument.

Oklahoma makes two arguments to justify its preferred outcome, one of which could potentially sabotage large parts of Medicare and Medicaid. In short, the state claims that federal agencies should not be allowed to set the rules that states must follow when receiving federal grants, even if Congress has specifically authorized an agency to do so. Taken seriously, Oklahoma's proposed limits on the power of federal agencies would fundamentally change how many of the largest and most important federal programs work.

As the Ministry of Justice stated in its Oklahoma A brief states: “Medicare's hospital 'conditions of participation' alone occupies approximately 48 pages in the Code of Federal Regulations.” All of those rules, as well as countless other federal regulations governing Medicare, Medicaid and other programs, could be rendered ineffective overnight if the justices accept Oklahoma's more radical argument. (Oklahoma's second argument, claiming that the call-in rule contradicts another federal law, is less radical and more plausible than the first.)

This dispute over whether Title X grant recipients must provide abortion information to patients who want it is familiar to anyone who follows abortion policy closely. In 1988, the Reagan administration banned Title X grant recipients from offering abortion counseling, and the Supreme Court upheld the Reagan administration's authority to do so, in Rust vs Sullivan (1991).

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

Nevertheless, the state of Oklahoma argues that the current administration exceeded its authority when it enacted a regulation similar to those that have been in effect for the past few decades.

The Supreme Court has long held that Congress can impose conditions on a federal grant program and that states must meet those conditions if they want to receive a grant. South Dakota vs. Dole (1987), the Court has, however, placed some limitations on this power to impose conditions on grants, including the requirement that those conditions must be clear so that States can make their choice ‘knowingly and with full awareness of the consequences of their participation’.

rust ruled that the federal law on Title X, which provides that “[n]One of the funds authorized under this subchapter shall be used for programs in which abortion is a method of family planning,” says nothing about whether Title X programs may refer patients to other medical providers who provide abortions. Thus, the law is “ambiguous” with respect to such referrals, and the court concluded that the Reagan administration could resolve this ambiguity by banning abortion-related referrals.

If that were all the law said, Oklahoma would have a strong argument in the pending Supreme Court case. Dole decided that the conditions for federal grants must be clear, and rust ruled that Title X is ambiguous about whether patients should receive information about abortion. So the bare law does not clearly tell Oklahoma that it must direct Title X patients to a phone number when they need information about abortion.

But the Title X Act also contains a provision stating that “grants and contracts awarded under this subchapter shall be in accordance with the regulations, [Health and Human Services (HHS)] The Secretary explains that “Title X grants shall be subject to such conditions as the Secretary deems appropriate to ensure that such grants are used effectively for the purposes for which they are made.”

Thus, the law clearly gives HHS the authority to issue 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 grantees to provide patients with the dial-in number.

Oklahoma, however, argues that Congress cannot delegate this type of legislative authority to a federal agency. If it wants to attach a condition to a federal grant, Congress must spell out the precise terms of that condition in the law itself.

The implications of this argument are staggering, because there are scores of agency-drafted rules that govern federal grant programs. The Medicare rules mentioned in the Justice Department's brief, for example, cover everything from hospital licensing to patient complaints to the corporate governance of hospitals that receive Medicare money. The rules for Medicaid may be even more complicated. These are more vulnerable to legal challenge under Oklahoma's legal theory because Medicaid is administered almost exclusively by states that receive federal grants.

In other words, Oklahoma is asking the court to fundamentally change the way virtually every aspect of hospital and health care administration and delivery works in the United States—and that doesn't even include all of the nonhealthcare-related federal funding programs.

It is unfortunate, to say the least, that this issue should arise 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 large parts of the federal Medicaid law virtually unenforceable. But that case involved allegations of elder abuse by a nursing home, not the politically charged issue of abortion.

The question in Oklahoma is whether this Court, with its two-thirds Republican majority of 6-3, will show similar wisdom in an abortion case.

Oklahoma's lawsuit raises a second legal argument that would give the state a Title X grant but would not force the court to throw large parts of the U.S. health care system into chaos. The Biden administration's requirement that Title X providers provide a phone number to patients seeking abortion information appears to conflict with a federal law called the Weldon Amendment.

The Weldon Amendment prohibits the distribution of Title X funds to government agencies that “discriminate against institutional or individual health care facilities because they do not perform, pay for, cover, or recommend abortion.”

The three appeal judges who had previously heard the case Oklahoma The case was divided over whether the Weldon Amendment prohibits the Biden administration's rule. Two justices concluded, among other things, that providing a patient with a phone number to call for information about abortion is not the same as referring a patient for an abortion and that the Biden rule was therefore permissible. One justice (who, notably, was appointed by Biden) dissented.

In any case, Oklahoma's Weldon Amendment argument gives the Supreme Court a chance to rule against the Biden administration's abortion policies without doing the kind of violence to Medicare and Medicaid that Oklahoma's other argument envisions. If the justices are determined to rule in Oklahoma's favor, anyone who cares about maintaining a stable health care system in the United States should cheer the court for choosing this less radical option.