The Supreme Court recently ruled 6-3 that Oklahoma was not entitled to receive millions in federal grants if the state continued to forbid family-planning clinics to provide information about abortion. That’s a defeat for the antiabortion movement — but it could be a temporary one, because this case and others like it will head back to the court eventually.
And if Oklahoma and Republican officials in other states succeed in those attempts, much more than abortion could be at stake. The workability of key programs like Medicare may be at risk.
This case, which made its way to the Supreme Court on its emergency docket, involves the federal government’s Title X program, which was created in the early 1970s to provide funding for birth control and reproductive health care to people with low incomes.
During the Trump administration, the Department of Health and Human Services prohibited clinics that get Title X funding from providing patients with information about abortion. In 2021, the Biden administration reversed that, requiring clinics that get Title X grants to offer neutral information about the availability of abortion.
After the Supreme Court overturned Roe v. Wade in 2022, Oklahoma argued that it should be able to receive $4.5 million in Title X grants without complying with the abortion-referral requirement. The Biden administration offered the state an alternative: The state could give patients the number for a national hotline that would provide information about abortion and an overview of where it might be available. Oklahoma turned down that proposal and filed suit instead.
One of Oklahoma’s claims was based on the Weldon Act, which prevents discrimination against health care providers that refuse to perform, fund, or provide referrals for abortions. Oklahoma argued that it was being penalized for refusing to refer patients for abortion, even though the federal hotline provided only general information about abortion.
Oklahoma also made a much more radical argument, based on the Spending Clause of the Constitution. In the past, the Supreme Court has described the Spending Clause as operating like a contract: The federal government can place conditions on the funding it provides, but only if they are made clear ahead of time and only if the state agrees to those conditions in advance.
The language of Title X itself says that funds are available based on conditions set by the secretary of health and human services. But Oklahoma says this condition-setting process doesn’t comply with the Spending Clause because Title X itself does not say anything about abortion referrals.
If the Supreme Court ever buys that argument, it will have stunning implications well beyond the context of abortion.
Medicare, for example, was created by a law. But the vast majority of the rules that shape Medicare are not spelled out in that law; the regulations governing conditions of participation for Medicare grant recipients are spelled out by the federal agency that administers Medicare.
These conditions of participation set out critical health and safety standards for virtually every major player in our health care system, from hospitals to community mental health centers to hospices and entities that deal with organ transplants. These rules not only ensure that providers meet minimum standards; they also give the federal government a critical tool to improve health care outcomes. For example, in the face of an intractable maternal mortality crisis (rates of death during pregnancy in the United States are more than twice as high as in other high-income countries), the Biden administration just rolled out new Medicare compliance rules governing maternal health and safety. In 2021, at the peak of the COVID-19 pandemic, the administration used conditions of participation to require medical professionals to be vaccinated. As Congress grapples with how to regulate the use of AI in health care, some experts argue that conditions of participation represent the best way to ensure that growing use of AI doesn’t worsen medical outcomes.
It would follow from Oklahoma’s argument that all of those conditions of participation would be out the window. And Medicare is just the most prominent example. Other federal funding programs are structured the same way.
At least so far, the Supreme Court hasn’t bought into Oklahoma officials’ legal theory. Neither have circuit courts of appeal; Tennessee recently lost the last round of a similar case. But the argument and others like it are almost certain to end up back at the Supreme Court, which did not offer a written explanation for its emergency rejection of Oklahoma’s claim.
Abortion opponents are also looking to the Spending Clause to block the Biden administration’s interpretation of the Emergency Medical Treatment and Labor Act, which the administration argues requires hospitals to offer certain emergency access to abortion, even in states with bans. Idaho, like other conservative states, argues that such an interpretation would violate the Spending Clause because federal law doesn’t specifically require all states to offer this kind of emergency access to abortion. That argument might appeal to the court’s conservative majority when the question of emergency abortions almost inevitably returns to the Supreme Court.
Arguments about the Spending Clause are designed to appeal to conservative justices who have already proved open to bids to undermine the administrative state. That’s why so many related claims have become important to the nation’s abortion wars. And if Oklahoma and other Republican-led states get their way, it won’t just be abortion law that changes. Much of our health care system will be overhauled too.
Mary Ziegler, a contributing writer for Globe Ideas, is a professor of law at the University of California, Davis, and the author of “Roe: The History of a National Obsession.”
