The Supreme Court’s new abortion case, Oklahoma v. U.S. Department of Health and Human Services, has huge stakes

Oklahoma v. Department of Health and Human Services It’s cases like these that keep health policy experts up at night.

On its face, this is a relatively low-stakes fight over abortion. The Biden administration requires recipients of federal Title X grants, a federal program that funds family planning services, to provide patients with “neutral, factual information” about all family planning options, including abortion. Grant recipients can comply with this requirement by: Provide a national call number for patients These patients can be made aware of information about abortion providers.

Oklahoma has long received Title X grants to fund health programs in the state. However, after receiving $4.5 million in grants in 2023, the state decided it could no longer comply with the requirement to provide patients with a call number. As a result, the administration terminated Oklahoma’s grant.

Now, however, Oklahoma wants the Supreme Court to allow it to receive Title X funding without complying with the telephone dialing rules. The state’s lawsuit has landed in the Supreme Court Shadow Filesinvolving emergency motions and other expedited matters, judges sometimes make decisions without full briefings or oral arguments.

Oklahoma makes two arguments for its desired outcome, one of which could undermine large parts of the federal Medicare and Medicaid programs. In short, the state claims that federal agencies may not set the rules that states must follow when they receive federal grants, even if Congress explicitly authorizes an agency to do so. If you think about it, Oklahoma’s proposal to limit federal agency power would profoundly change how many of the largest and most important federal programs operate.

As the Department of Justice Oklahoma Briefing paper, “Medicare’s ‘conditions of participation’ apply only to hospitals Spanning approximately 48 pages All of these rules, along with countless other federal regulations governing Medicare, Medicaid and other programs, could cease to operate overnight if the justices accept Oklahoma’s more radical argument. (Oklahoma’s second argument, that the phone-in appointment rule violates another federal law, is less radical and more reasonable than the first.)

Anyone who has followed abortion politics closely will be familiar with the debate over whether Title X grant recipients must provide some abortion-related information to patients seeking abortions. In 1988, the Reagan administration banned Title X grant recipients from providing any abortion counseling, and the Supreme Court upheld the Reagan administration’s authority to do so in 1997. Rust v. Sullivan (1991).

Since then, the policy has sometimes Changes depending on which party controls the White HouseThe Reagan-era policy was rescinded during the Clinton administration, revived by the Trump administration in 2019, and changed again by the Biden administration in its first year in office.

However, Oklahoma argues that the current administration has exceeded its authority by enacting regulations similar to those that have been in effect for much of the past few decades.

The Supreme Court has long ruled that Congress can impose conditions on federal grant programs that states must comply with if they hope to receive the money. South Dakota v. Dole (1987), however, the Court set some limits on the power to impose conditions on grants, including requiring that such conditions be clear so that states can “make an informed choice and realize the consequences of their participation.”

rust The federal statute governing Title X states that “grants under this title may not be used for programs that use abortion as a method of family planning.” Not talking Title X programs could refer patients to other health care providers that provided abortion services. The law was therefore “ambiguous” about such referrals, and the court concluded that the Reagan administration could resolve this ambiguity by prohibiting abortion-related referrals.

If that were all the statute said, Oklahoma would have a strong argument in the case before the Supreme Court. Dole The conditions for awarding federal grants must be clear, and rust The ruling said Title 10 was vague about whether it should provide patients with information about abortion. Therefore, the bare bones statute did not clearly communicate to Oklahoma that if Title 10 patients needed information about abortion, it must refer them to the hotline.

But Article 10 also Contains a provision It provides that “grants and contracts awarded under this title shall be made in accordance with regulations promulgated by the Secretary of Health and Human Services” and that grants awarded under title X “shall be subject to such conditions as the Secretary deems appropriate to ensure that such grants may be effectively utilized for the purposes for which they were awarded.”

As a result, the statute explicitly gives the Department of Health and Human Services the authority to set binding rules. Oklahoma knew when it accepted the Title X grant that it would have to follow those rules, including the Biden administration’s requirement that grant recipients provide patients with a call number.

However, Oklahoma believes that Congress Such rulemaking authority cannot be delegated to a federal agencyIf Congress wants to impose conditions on federal grants, it must write the specific terms of the condition into the statute itself.

The implications of this argument are striking because there are a large number of agency-written rules that govern federal grant programs. For example, the Medicare rules cited in the Justice Department brief cover everything from Hospital License arrive Complaints from patients arrive Corporate Governance of Hospitals Receiving Medical Insurance FundsThe rules governing Medicaid can be more complex. Under Oklahoma legal theory, they are more susceptible to legal challenges because Medicaid is almost entirely administered by states that receive federal funding.

In other words, Oklahoma is asking the court to fundamentally change how nearly every aspect of how hospitals and health care are managed and delivered in the United States operates—and that’s before taking into account all the federal subsidy programs that have nothing to do with health care.

Unfortunately, this question has arisen in the context of abortion disputes. About a year ago, the Supreme Court rejected a similar, equally radical legal theory that would have Rendering much of the federal Medicaid law effectively unenforceableHowever, the facts of the case involved allegations of nursing home abuse rather than the politically sensitive issue of abortion.

question Oklahoma The question is whether the Supreme Court, with its 6-3 Republican supermajority, will show the same wisdom in abortion-related cases.

Oklahoma did raise a second legal argument in its lawsuit that would allow it to receive Title X funding, but it does not require the court to throw much of the U.S. health care system into disarray. The Biden administration’s requirement that Title X providers must provide a hotline number to patients seeking abortion information could conflict with a federal law known as the Weldon Amendment.

this Weldon Amendment Prohibits the allocation of Title X funds to government agencies that “discriminate against any institutional or individual health care entity because that health care entity does not provide, pay for, cover, or refer for abortions.”

The three appellate judges who heard the case Oklahoma case Disagreement over whether the Weldon Amendment bars Biden administration ruleTwo judges concluded, among other things, that providing patients with a phone number so they can learn about abortions is different from referring patients for abortions, and therefore is permissible under the Biden rule. One judge (who, it’s worth noting, was a Biden appointee) disagreed.

Regardless, Oklahoma’s Weldon Amendment argument offers the Supreme Court a way to rule on the Biden administration’s abortion access policy without inflicting violence on Medicare and Medicaid, as another Oklahoma argument would. If the justices are determined to rule in Oklahoma’s favor, anyone who cares about preserving a stable health-care system in the United States should support the court taking this less radical option.