The Biden administration is withholding millions in family planning grants over Tennessee’s decision not to require that physicians refer patients for the types of abortions that are illegal in the state.
Letters between Tennessee and the federal Health and Human Services (HHS) Department showed the latter taking issue with policy language directing clinics to provide “information and counseling regarding all options that are legal in the State of Tennessee.” (Read the letters here, here, here, and here.)
HHS’ decision reflected conflicting changes to state abortion policy after Dobbs and President Biden’s pro-abortion vision, which included reversing a rule that blocked Title X funds for clinics that referred for the procedure. In August, the state’s trigger ban took effect with an exception for the health of the mother.
“The federal government is denying Tennessee funding that has supported critical maternal and family care for thousands of Tennesseans for decades,” Jade Byers, a spokeswoman for Gov. Bill Lee (D), told Live Action News on Thursday. “As we discuss next steps with the Attorney General’s office, Governor Lee will fulfill his commitment to serving families by proposing to amend the state budget to include state dollars to fill the void caused by the federal government’s decision.”
According to The Chattanooga Times Free Press, Tennessee received $7.1 million in Title X funds in FY2022. Lee is proposing a budget amendment that includes $7.5 million in recurring funds. In order to prevent a lapse in care, Lee is also proposing $1.875 million in non-recurring funding for FY2023.
Title X is a highly contentious federal grant program that has seen changes over multiple administrations. The Trump administration controversially enacted a “gag rule” that precluded clinics from receiving funding if they referred patients for abortion. In 2021, the Biden administration reversed that rule.
The Tennessee Department of Health had told HHS in a March 13 letter that it considered the federal government’s regulation to be “broad and undefined” in its requirement that physicians, when unable to perform abortions, refer patients for “terminat[ing] the pregnancy of a woman known to be pregnant.”
“Under the regulation’s broad and undefined language, Tennessee’s nondirective policy appears to be in compliance with Title X given the standard of care in Tennessee,” said Health Commissioner Dr. Ralph Alvarado.
By March 20, HHS Office of Population Affairs responded by indicating that it still expected the state’s physicians to refer patients for abortions in other states:
On March 13, 2023, you responded that Tennessee’s nondirective policy appears to be in compliance with Title X given the standard of care in Tennessee. You indicated that, pursuant to Tennessee law, Title X subgrantees’ physicians can comply with the Title X nondirective options counseling and referral requirements set out in 42 CFR § 59.5(a)(5) by referring patients for “terminat[ing] the pregnancy of a woman known to be pregnant” when the termination is with intent “to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.” Tenn. Code Ann.§ 39-15-213(a)(1) (excluding such procedures from the definition of abortion). For these reasons, Tennessee does not construe the phrase “pregnancy termination” to include every possible method of “pregnancy termination,” such as abortion.
OPA has reviewed your statement and determined that Tennessee’s policy for providing nondirective options counseling and referral within your Title X project remains not in compliance with the Title X regulatory requirements and, therefore, the terms and conditions of your grant. As we indicated in our March 1, 2023, letter, Title X recipients must follow all Federal regulatory requirements regarding nondirective options counseling and referrals, including providing referrals for abortion upon client request. We understand that in some circumstances, those referrals will need to be made out of state.
The letter added that “OPA has recommended not providing Fiscal Year (FY) 2023 continuation funding for the Tennessee Department of Health noncompeting continuation application for FPHPA006553, as continued funding is not in the best interest of the government.”