Tennessee Attorney General Jonathan Skrmetti has filed a formal complaint against the Department of Health and Human Services (HHS) and HHS Secretary Xavier Becerra, challenging the termination of its Title X funding.
“This case involves 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 beginning of the complaint, filed in U.S. District Court for the Eastern District of Tennessee, reads.
The dispute stems from the state’s refusal to comply with federal rules mandating abortion referrals, a move based on Tennessee’s current ban on the procedure.
A March 20 letter to state health officials from the HHS Title X program director said that “the Office of Population Affairs (OPA) has recommended not providing Fiscal Year (FY) 2023 continuation funding for the Tennessee Department of Health.”
“Because of OPA’s determination of your non-compliance with the Title X regulation, the grants management officer (GMO) has determined that Tennessee is unable to comply with the terms and conditions of the award,” the letter continues. “The GMO concurs with OPA’s recommendation not to fund a continuation award.”
The legal battle, initiated on Oct. 24, seeks to overturn HHS’s decision, alleging it violates federal law and constitutional rights and that it reflects arbitrary decision-making by HHS.
“We are suing to stop the federal government from playing politics with the health of Tennessee women,” Mr. Skrmetti said in a statement to The Epoch Times.
He went on to say that in 2022, HHS praised Tennessee’s Department of Health as “the only agency with the capacity, staff, and expertise to administer Title X funds with integrity and without a gap in services in the state.”
“This year, the federal government illegally diverted those funds to Planned Parenthood,” Mr. Skrmetti continued. “Our lawsuit is necessary to ensure that Tennessee can continue its 50-year track record of successfully providing these public health services to its neediest populations.”
Factual Matters
Title X is a federal program that provides funding for family planning and related health services. The State of Tennessee has been a longstanding participant in this program, receiving approximately $7 million annually to support vital public health initiatives.
Tennessee submitted for “proof of compliance” its policy for a positive pregnancy test, which states that “patients with positive pregnancy test must be offered the opportunity to be provided information and counseling regarding all options that are legal in the State of Tennessee.”
HHS took issue with the inclusion of the wording “legal in the state of Tennessee,” calling it unacceptable as Title X recipients “must still follow all Federal regulatory requirements regarding nondirective options counseling and referrals.”
“In addition, the nursing protocol only included the steps for treating clients who opt to continue a pregnancy,” the letter from HHS continues. “And, while the policy does appear to provide instructions related to providing counseling and referral for prenatal care, no instructions are given for infant care, foster care, adoption, or pregnancy termination, which are all required to be provided upon request.”
Tennessee’s View
The state explains in the suit that the case was brought because it views HHS guidance as the “federal government’s latest effort to coerce States into carrying out pro-abortion policy in violation of statutory, constitutional, and administrative-law limits.”
Mr. Skrmetti argues that a state’s decision to permit or restrict abortion carries “profound moral” implications, citing the 2022 Supreme Court ruling which overturned Roe v. Wade.
“In Tennessee, voters have opted to vindicate an interest in valuing all life by restricting elective abortions and promoting policies that will help women carry pregnancies to term,” the suit reads. “Out of respect for the deeply held opposition to abortion shared by Tennessee and countless others, Congress has long barred federal funds from aiding abortions.”
Mr. Skrmetti further argues Title X of the Public Health Service Act grants funding to provide “counseling and family planning services” primarily to the less fortunate, while strictly restricting funds flowing to abortion as “a method of family planning.”
“Since the mid-1990s, all Title X appropriations bills have expressly banned funding for elective abortions,” he wrote in the suit. “And each has further required that ‘all pregnancy counseling’ conducted under Title X ‘shall be nondirective’—thus prohibiting Title X recipients from encouraging women to seek abortions.”
Mr. Skrmetti says that different presidential administrations have “flip-flopped” on whether and how recipients should make abortion referrals, in 2019 prohibiting referrals for abortion while in 2021 issuing the opposite policy.
“The Supreme Court, for its part, has weighed in once, holding only that HHS may prohibit abortion referrals under Title X. The Supreme Court has never addressed—let alone upheld—a rule mandating Title X program recipients to refer women to abortion providers.”
Tennessee’s Claims
The first claim made in the suit alleges that HHS acted arbitrarily and capriciously by abruptly terminating its Title X funding. The complaint argues that HHS reversed its previous conclusion without providing a reasonable explanation, leaving Tennessee in the dark about the reason for the decision.
The complaint further contends that HHS’s interpretation of Title X regulations, particularly regarding counseling and referrals for abortion options, was inconsistent with existing regulations. Moreover, HHS is accused of failing to follow proper rulemaking procedures, including notice-and-comment, when implementing this interpretation.
“HHS unlawfully unveiled its new interpretation only as part of HHS’s decision to terminate Tennessee’s Title X funding,” the suit states.
The lawsuit also alleges that HHS’s actions violate the U.S. Constitution on several fronts.
First, it asserts that the termination of Tennessee’s funding contravenes the spending clause, as it imposes conditions unrelated to the program’s intended purposes. Second, the state contends that HHS compelled abortion-related speech, infringing upon First Amendment and 10th Amendment rights.
The state attorney general’s office emphasizes what it sees as the arbitrary nature of HHS’s decision to terminate Title X funding for the state.
The suit highlights the state’s view of HHS’ inconsistency of this decision with HHS’s prior conclusions that Tennessee was in compliance with program requirements. The complaint also raises concerns about HHS failing to consider the feasibility of referrals and the impact of state-level abortion-related restrictions.
HHS has not yet responded in federal court to the complaint, and the agency told The Associated Press that it would not comment on pending litigation.
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