(CN) — Tennessee and the U.S. Department of Health and Human Services clashed at the Sixth Circuit on Thursday in a dispute over state abortion restrictions and potentially millions in Title X funds.
Attorneys for Tennessee claimed that because of the state’s near-total abortion ban, the department used technicalities to withhold the funds from the state beginning in March 2023.
“Because Tennessee will not use its own state employees to facilitate the elective termination of unborn life, HHS pulled Tennessee’s grant and gave the money to Planned Parenthood,” Whitney Hermandorfer, Tennessee’s director of Strategic Litigation, told the appellate panel on Thursday.
The government didn’t dispute that it withheld funding. Instead, federal lawyers argued that under 2021 rule from the Department of Health and Human Services, family-planning services which receive Title X grants — including those in Tennessee — are required to educate pregnancy patients about all their options, including elective abortion. The department concluded in 2023 that the Volunteer State hadn’t been abiding by this rule.
Besides temporary suspensions from 1988 to 1993 and from 2019 to 2021, the rule had been in place for years, Justice Department Attorney Courtney Dixon told the three-judge appellate panel.
“The regulatory requirements at issue here have been in place for the majority of the Title X program’s history,” Dixon said. “They reflect interpretations of the statute going back to its inception — and grantees such as Tennessee complied with this requirement for decades.”
Dating back to 1970, Title X is a federal grant program dedicated to funding family planning and reproductive health services. Despite the rule Dixon laid out for the Sixth Circuit, it bars federal grants from directly funding abortion services.
Tennessee nevertheless sued the Department of Health and Human Services in October 2023 over its loss of Title X funding that year, calling it the “federal government’s latest effort to coerce states into carrying out pro-abortion policy in violation of statutory, constitutional, and administrative-law limits.”
The state sought a preliminary injunction to force the department to turn the funding back on, as well as a federal court declaration that withholding the Title X money was “unlawful and arbitrary and capricious.” Without the funds, the state argued in court filings and in court on Thursday, Tennessee’s faced greater difficulty funding other reproductive health services.
“HHS apparently values sending a pro-abortion message more than providing vital family planning services to thousands of vulnerable women and families across Tennessee,” the state wrote in its initial complaint.
U.S. District Judge Travis McDonough, a Barack Obama appointee, didn’t buy that argument.
In lower court in March, he denied the state’s preliminary injunction motion and took no issue with the department reinstating its abortion counseling stipulation in 2021. He also said Tennessee knew it might face Title X complications when it chose to stop providing pregnancy patients with elective abortion information following the 2022 repeal of Roe v. Wade.
“Tennessee had two options: comply with the 2021 Rule and receive the Title X grant money or choose not to comply and forego the money,” McDonough wrote. “It made its choice, knowingly and voluntarily. It has no basis to force funding from HHS without meeting the obligations upon which the funding is conditioned.”
Dixon, in her own arguments Thursday, tried to stick to more procedural factors.
Reminding the Sixth Circuit justices that Title X barred abortion advocacy, she noted that the Tenth Circuit rejected a similar Title X challenge earlier this week.
Conservative U.S. Circuit Judge Raymond Kethledge nevertheless pushed Dixon to get into the merits of the issue, expressing skepticism that the Title X requirements for abortion information were truly neutral.
“The question is, does a program use abortion as a method of family planning when it refers a patient to an abortion provider?” the George W. Bush appointee asked. “It seems to be fairly common-sensical that the answer is yes.”
Dixon disagreed, comparing the Title X rules to a free dental clinic operator telling a root canal patient that they don’t perform the procedure but that they can provide the name of another dentist who does.
“This is about factual, neutral information by a provider,” Dixon said.
Kethledge was joined on the appellate panel by U.S. Circuit Judges Julia Julia Smith Gibbons and Stephanie Davis, George W. Bush and Joe Biden appointees respectively.