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The federal government does not have to pay back any money

Tennessee failed in its attempt to force the U.S. Department of Health and Human Services to restore its Title X funding while the state challenged an HHS rule.

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NASHVILLE, Tenn. — Federal agencies do not have to repay the state $7 million in family planning grants while a lawsuit challenging federal abortion counseling regulations is pending in Tennessee, an appeals court ruled this week.

Tennessee lost its attempt to force the U.S. Department of Health and Human Services to restore its Title X funding while the state challenged the federal Department of Health and Human Services' program rules. The 6th U.S. Circuit Court of Appeals upheld a lower court's ruling and disagreed with Attorney General Jonathan Skrmetti's argument that the federal rules violated Tennessee's state sovereignty.

In a 2-1 decision, the panel ruled that Tennessee could not use its state laws to “dictate” eligibility requirements for federal funding.

“And Tennessee was free to voluntarily abandon the grants for any reason, including if it determined that the requirements would violate its state's laws,” the statement said Monday. “Instead, Tennessee has chosen to accept the grant, subject to the counseling and referral requirements of the 2021 rule.”

The Tennessee Attorney General's office has not responded to a request for comment.

The federal government last year cut $7 million from the Title X program that was earmarked for family planning grants for low-income recipients after the state of Tennessee failed to meet program requirements to counsel clients about all reproductive health options, including abortion.

Inside the lawsuit

Title X funds cannot be used for abortion, but the procedure must be presented as a medical option. Tennessee has blocked clinics from counseling patients about medical options that are not legal in the state, which has one of the strictest abortion laws in the country.

In the lawsuit filed in federal court last year, Skrmetti argued that HHS rules on Title X requirements had changed in recent years and that the HHS requirement violated the “First Amendment right of Tennessee citizens not to engage in speech or conduct that facilitates abortion.”

After Tennessee lost funding last year, Gov. Bill Lee proposed a $7 million budget amendment to make up for the lost funds that had previously gone to the state Department of Health. The legislative funding may have weakened Tennessee's claim to restore federal funding, as judges pointed to the available money as evidence that Tennessee would not suffer irreparable harm unless HHS is forced to restore its funding streams.

Last August, the federal government devised a solution, giving Tennessee's lost funds to the Virginia League for Planned Parenthood and Converge, which funneled them to organizations in Tennessee. The funds are earmarked for family planning services for low-income residents, directly bypassing the state Department of Health, which had previously distributed the grants.

Skrmetti filed the lawsuit against HHS two months later.

Recent dispute over federal funds

The fight over family planning funding was the second fight over federal funding to break out in 2023.

In January 2023, the state of Tennessee announced it would cut funding for HIV prevention, detection and treatment programs that are not affiliated with municipal health departments, rejecting more than $4 million in federal HIV prevention funding.

Tennessee said it could make up for the lost funds with state money, but advocates condemned the move and its potential impact on vulnerable communities as the state remains a hotspot of HIV transmission. The Commercial Appeal, part of the USA TODAY Network, later confirmed that Tennessee had abandoned the funding after unsuccessfully trying to exclude Planned Parenthood from the HIV prevention program.

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