Appeals Court: No Federal Family-Planning Funds – for Now – if State Refuses To Make Abortion Referrals
The federal government can withhold the funds from Tennessee while litigation continues in the lower court
A federal appeals court on Monday denied Tennessee an injunction to keep federal family-planning funds flowing during a dispute over abortion.
Two judges on a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit agreed with a lower court “that Tennessee does not have a strong likelihood of succeeding on the merits of its claim.”
Tennessee sought the injunction to prevent the U.S. Department of Health and Human Services (HHS) from withholding Title X family-planning funds over Tennessee’s stance on abortion referrals.
A 2021 HHS rule requires Title X recipient states to make abortion referrals when requested by a patient.
HHS withheld the funds because Tennessee, which banned most abortions after Roe v. Wade‘s reversal, refused to make referrals for abortions when requested if Tennessee law forbade those abortions.
Tennessee challenged HHS’s withholding of funds, arguing HHS violated the U.S. Constitution’s Spending Clause and the Administrative Procedures Act (APA).
Tennessee argued the withholding violated the Spending Clause, which gives Congress the power to “lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.”
Tennessee argued HHS “usurped Congress’s exclusive authority to regulate Title X funding” by withholding the funding.
The appeals court agreed with the lower court “that Congress unambiguously authorized HHS to regulate Title X eligibility; the conditions of the grant were unambiguous; and Tennessee knowingly and voluntarily accepted the grant’s terms.”
Part of Tennessee’s Spending Clause argument asserted that the 2021 rule change infringed on Tennessee’s sovereignty by coercing the state to undermine its criminal abortion laws.
“Tennessee may not use its state criminal laws to ‘dictate eligibility requirements’ for Title X grants,” the appeals court held. “Tennessee was free to voluntarily relinquish the grants for any reason, especially if it determined that the requirements would violate its state laws.”
The appeals court also rejected Tennessee’s challenge under the APA. Tennessee argued the 2021 rule change exceeded HHS’s statutory authority.
The appeals court previously rejected similar claims HHS had exceeded its authority with the 2021 rule change and declined to disturb that holding.
One judge on the three-judge panel disagreed and argued Tennessee would likely succeed on its APA claim because Title IX bars appropriating funds “to be used in programs where abortion is a method of family planning.”
This grant of authority to HHS directly conflicted, the judge argued, with HHS’s conditioning Title X funding on “provid[ing] referrals to abortion providers” at a patient’s request.
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“Title IX bars appropriating funds “to be used in programs where abortion is a method of family planning.”
“HHS’s conditioning Title X funding on “provid[ing] referrals to abortion providers” at a patient’s request”
Seems to me that since Title IX came before Title X, than any State that does “provide referrals to abortion providers at a patient’s request” is who is violating the law by accepting the $$$. Or, rather, that HHS is in violation by granting funds to states that do “provide referrals to abortion providers at a patient’s request”.
INAL, though I do work for a law firm that practices no form of law that touches on the abortion question.
Meantime, Trump is advocating taxpayer-funded IVF treatments.
No doubt I will be showered with downticks, but federal intervention in family planning is federal meddling in family planning.
I happen to strongly disagree with any push for federal funding for IVF, myself – or even forcing insurance companies to cover it … though it will have no bearing on any of my votes.
Do you think the Trump HHS will be requiring abortion Referrals?
If not Trump is already an improvement.
The issue I have with Trump right now is if he continues to let Kamala have a monopoly on the internet he will lose, and lose badly especially if his reasoning is he thinks it is 2004 and what is important is a mass ad blitz in the last week of the campaign.
Monopoly on the internet??? 🤔
Just compare the spending on adds in the important places.
I’m mixed.
We spent as much on IVF as our first house. I’m glad the technology exists.
This was before insurance would cover it. Later rounds were covered by insurance at a job I had later one but no luck. We were blessed enough to be able to have one. It is a tough journey.
Had this been something insurance had covered the entire way through, I’d be a million bucks richer today since every dime I didn’t spend on this went into the market.
I will say some of the providers knew how to fleece those with insurance. Particularly those near tech companies that would cover this treatment.
Honestly with the population implosion that is happening, I think getting IVF more main stream is a good idea. Those who seek IVF have their act together (speaking for the hetero couples, I will make no such assessment of the alphabet crowd- not on judgement- I mean I just don’t know).
I know they have been doing it for decades … but the federal government is barred from intentionally trying to make states change their own laws via federal funding. If the feds are providing funding for anything then it must go to all states and it must respect the legitimate state laws that all states have in place. The only case where federal funding can be withheld from individual states BECAUSE of laws that state might have is when such state laws are illegitimate and illegal – as with “sanctuary” laws that states have, which are un-Constitutional (the federal government has control of immigration and legal standing of aliens) and treasonous, in the particulars.
Abortion, however, is a state issue, and the federal government is not allowed to condition federal funds on the sorts of laws states enact regarding abortion.
Total news to me. How did we get state seat belt laws, state helmet laws, state 21yo drinking age laws? Precisely by the federal government using extortion against “disobedient” states. If this were ever illegal, it must have escaped absolutely everybody’s attention.
Uh … I wrote about that in the very first sentence of my comment.
Yes, we have been doing it for a long time for various things. Yes, it is completely un-Constitutional.
There are lots of things that our governments do even though everyone knows they are illegal … like red light cameras, for one example.
This is almost completely wrong. Congress is certainly entitled to use funding to persuade states to change their laws, or to otherwise do as Congress wishes. The only thing it can’t do is force the states to do as it wants, by making such drastic cuts to existing funding that the state can’t afford to take the cut and refuse to comply.
New funding can be conditioned any way Congress wants, because states who don’t like it can simply decline the funding. Existing funding can be cut by a small enough percentage that states can afford to absorb the cut.
That answers Henry’s question:
No, it did not escape anyone’s attention, and no it is not unconstitutional. The Supreme Court explicitly upheld it in South Dakota v Dole, because the cut was small enough that if SD really wanted to it could keep its laws and take the cut. Had the cut been too large for SD to afford then it would have been struck down.
This is completely wrong and it’s your position that is unconstitutional. States have the absolute constitutional right to pass these “sanctuary” laws, and Congress may not cut their funding by so much that it would compel them to repeal those laws.
But it can make smaller cuts to persuade them. However only Congress can do that; the executive branch cannot. And Congress must do it explicitly.
This is all long-settled law, and not controversial. States’ rights to refuse cooperation with federal law enforcement is protected by the tenth amendment, and has been repeatedly upheld by the federal courts for over two centuries.
As the West’s populations crater, having more kids rather than importing the Third World might have an upside.
I’m so sorry I swallowed the “overpopulation” gaslighting until it was too late.
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