RELEASE: Rejecting Oklahoma’s Attempt to Distort and Weaponize the Spending Clause Against Reproductive Rights, Tenth Circuit Affirms Federal Government’s Authority to Require Non-Directive Counseling and Referral for Abortion Under Title X.
WASHINGTON, DC – Following today’s decision from the Tenth Circuit in Oklahoma v. United States Department of Health and Human Services, Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:
Today’s Tenth Circuit decision is a win for reproductive rights and a rejection of the conservative legal movement’s attempt to use the Spending Clause to curtail federal agencies’ authority to protect those rights. The Court affirmed the district court’s refusal to order the United States Department of Health and Human Services (HHS) to reinstate federal funding for state-run reproductive healthcare clinics that refused to comply with a condition of that funding requiring clinics to offer non-directive counseling and referral for abortion care.
Oklahoma had argued that as a matter of law under the Supreme Court’s Spending Clause doctrine, it lacked sufficient notice of the counseling and referral requirement because that requirement was imposed by an HHS regulation rather than directly by the text of the Title X statute. The Tenth Circuit soundly rejected that argument. Echoing our brief’s articulation of the requirements for fair notice under the Spending Clause, the Court held that Oklahoma was able to make “an informed decision” whether to accept Title X funding “based on the combination of Title X’s language and HHS’s conditions” considered together.
The Court also recited the important history presented in our brief of Congress’s frequent Founding-era delegations of the authority to impose conditions on federal funding, such as a 1790 benefits program for the army that was governed by regulations “directed by the President.”
Today’s decision is a win for reproductive rights, the power of federal agencies to do their jobs, and the text and history of the Constitution’s Spending Clause. The Sixth Circuit should follow suit in a similar case pending there, which will be argued this Thursday.
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Resources:
Case page in Oklahoma v. United States Department of Health and Human Services: https://www.theusconstitution.org/litigation/oklahoma-v-united-states-department-of-health-and-human-services/