[00:00:00] Speaker 05:
State of Oklahoma versus HHS.

[00:00:04] Speaker 05:
We'll hear from Mr. West.

[00:00:18] Speaker 04:
Good afternoon, Your Honors.

[00:00:20] Speaker 04:
May I please the Court?

[00:00:21] Speaker 04:
My name is Zach West.

[00:00:22] Speaker 04:
Can you pull it up even a little higher?

[00:00:24] Speaker 04:
Yes, Your Honor.

[00:00:25] Speaker 04:
Thank you.

[00:00:25] Speaker 04:
Get that right up there.

[00:00:27] Speaker 04:
May it please the Court.

[00:00:30] Speaker 04:
My name is Zach West.

[00:00:31] Speaker 04:
I represent the State of Oklahoma and the Oklahoma Attorney General in this matter.

[00:00:35] Speaker 04:
And with me at Council table are Mr. Tom Hillis and Mr. Miles McFadden, as well as Mr. A.J.

[00:00:41] Speaker 04:
Faraday.

[00:00:43] Speaker 04:
I would like to reserve two minutes of my time for rebuttal.

[00:00:45] Speaker 04:
Certainly.

[00:00:47] Speaker 04:
Very soon, the federal government will deny Oklahoma $4.5 million in funding for the next year in Title X, funding that Oklahoma would use to serve, as it has for 40 years, the most vulnerable and hard-to-reach people in Oklahoma, solely because Oklahoma, since dogs, has refused to perform or provide abortion referrals and counseling.

[00:01:09] Speaker 04:
This court should reverse the district court and grant a preliminary injunction because that decision is unlawful for three reasons, or at least Oklahoma believes it is likely to succeed for three reasons.

[00:01:20] Speaker 04:
First, because the Weldon Amendment protects those who decline to refer for abortions, including entities and health care entities, and as does the Defendants 2021 rule.

[00:01:33] Speaker 04:
Second, because the spending clause requires that such conditions be

[00:01:37] Speaker 04:
unambiguous, and rust requires an ambiguity finding.

[00:01:41] Speaker 04:
And third, because the government acted arbitrarily and capriciously, among other things, in ignoring Weldon daubs and its own rules and regulations.

[00:01:50] Speaker 04:
I want to start, actually, with Weldon.

[00:01:52] Speaker 04:
Especially given the expedited nature of this case, we believe it may be helpful to point the court to what is perhaps the most narrow or expeditious way to resolve the case.

[00:02:03] Speaker 04:
And that, to us, is maybe the Weldon Amendment.

[00:02:05] Speaker 04:
Now, simple isn't everything.

[00:02:06] Speaker 04:
We have to be likely to succeed.

[00:02:09] Speaker 04:
But we believe Weldon is fairly straightforward on that front.

[00:02:12] Speaker 04:
As the Oklahoma Health Department has now argued for nearly a year, it qualifies for protection under the Weldon Amendment on multiple textual levels, none of which has been refused by defendants.

[00:02:24] Speaker 04:
The first is the text of the Weldon Amendment itself, which protects from discrimination any institutional health care entity.

[00:02:30] Speaker 04:
And we would posit that all those terms apply to the state health department.

[00:02:36] Speaker 03:
When institutions of health care are defined, it looks like there are people who actually have the hands-on provision of health care.

[00:02:45] Speaker 03:
And Oklahoma doesn't meet that test.

[00:02:48] Speaker 03:
So I've read your briefs.

[00:02:49] Speaker 03:
I know your argument there that you're enabling, and people in the state government are acting on your behalf.

[00:02:58] Speaker 03:
I'm a little agnostic about that.

[00:03:04] Speaker 04:
No, that's fair, Your Honor.

[00:03:05] Speaker 04:
The two things I would say in response to that are first, the Weldon definition, and that's kind of the second level we were going to go to, is the Weldon definition of what an institution or a health care entity is says, among other things, it can be any other kind of health care organization.

[00:03:22] Speaker 04:
And I believe you've gone kind of maybe to the word health care.

[00:03:25] Speaker 04:
of saying, well, that implies provider.

[00:03:27] Speaker 04:
Well, first we would say that doesn't necessarily imply that a provider, as much as it would be passing strange to say a state health department does not qualify as a health care organization.

[00:03:39] Speaker 04:
But nevertheless, on your second point, the state health department provides numerous health care services under Title X. We've pointed to several places in the record, especially in the defendant's own 2016 review, where they acknowledge that.

[00:03:54] Speaker 03:
Does that bind them for the interpretation here?

[00:03:59] Speaker 04:
I'm not sure I follow that.

[00:04:01] Speaker 03:
Well, you say that they have included under health care entities

[00:04:08] Speaker 03:
The state of Oklahoma are at least not requiring them to be providers in other situations.

[00:04:13] Speaker 03:
I'm wondering if that binds them in this case.

[00:04:16] Speaker 04:
I'm not sure it binds.

[00:04:17] Speaker 04:
It depends on which one you're referring to.

[00:04:19] Speaker 04:
We've referred to in the 2021 rule, they explicitly say twice, that grantees will be protected.

[00:04:26] Speaker 04:
And it is undeniable that the Oklahoma Health Department is a grantee.

[00:04:29] Speaker 04:
And that is stated twice.

[00:04:31] Speaker 04:
Now, we will admit that is, I believe, preamble language.

[00:04:34] Speaker 04:
And preamble language is persuasive or helps in interpretation, but is not officially binding.

[00:04:39] Speaker 04:
If what you're also referring to is my comment that the 2016 review that they did also indicates that the Oklahoma Health Department is a provider of services, because it is.

[00:04:52] Speaker 04:
we would argue probably should be binding.

[00:04:54] Speaker 04:
Is it absolutely binding that they acknowledge that in 2016?

[00:04:57] Speaker 04:
I don't know.

[00:04:58] Speaker 04:
But to give one example, we've cited a couple in our briefs.

[00:05:01] Speaker 04:
I want to cite to another example on Appendix Volume 2 at page 253.

[00:05:05] Speaker 04:
It's very clear.

[00:05:06] Speaker 04:
It says the grantee, which is OSDH, quote, is providing comprehensive family planning services, including breast and cervical cancer screening.

[00:05:16] Speaker 04:
That's on, again, appendix volume 2 at 253.

[00:05:19] Speaker 04:
That's one of several places in their own 2016 review that acknowledge what we know because we're Oklahoma and we run the health department, which is the health department provides on-the-ground services in partnership with the county health department.

[00:05:33] Speaker 02:
Council, I better understand that.

[00:05:34] Speaker 02:
Are you saying that there are...

[00:05:36] Speaker 02:
State Department of Health physicians, medical workers who are doing direct patient contact and care?

[00:05:42] Speaker 02:
Yes, Your Honor.

[00:05:43] Speaker 02:
I noticed that was pled in your complaint and you discussed other things such as referral for other services and particularly rural counties.

[00:05:49] Speaker 00:
Yes.

[00:05:49] Speaker 02:
I just wanted to crystallize this point.

[00:05:51] Speaker 02:
So the State Department of Health working with the county or local health departments in some of these rural counties are maybe the only place where some low-income Oklahomans can go for care.

[00:06:03] Speaker 02:
Yes, you are.

[00:06:04] Speaker 02:
So it's a facility and the caregivers themselves work under the umbrella of Department of Health.

[00:06:10] Speaker 02:
That is correct.

[00:06:11] Speaker 04:
And it is a partnership.

[00:06:12] Speaker 04:
Now, it's a little bit different with a couple of counties in Oklahoma.

[00:06:14] Speaker 04:
There's the Oklahoma County and Tulsa County Health Departments are a little bit more of a contractual

[00:06:19] Speaker 04:
There's a little more distance between the health department and those two entities, but the other, I think it's 68 health departments at least.

[00:06:28] Speaker 04:
The health department literally sends its own workers into those departments, its own APRNs, its own RNs.

[00:06:35] Speaker 04:
to do services.

[00:06:37] Speaker 04:
And Tina Johnson, it doesn't, that what I just said is not explicit in her affidavit.

[00:06:42] Speaker 04:
But one interesting note where it kind of shows that in her affidavit, it's the one affidavit we provided, is in paragraph three of her affidavit, it talks about her jobs that she's held with OSDH.

[00:06:52] Speaker 04:
And one of those jobs, one of the very first ones she had was a public health nurse in Oakfusky County, in another county that I can't remember the name of.

[00:07:00] Speaker 04:
But in rural counties, like one of her health department jobs was, I was a nurse for this county.

[00:07:06] Speaker 04:
I went to this county.

[00:07:08] Speaker 04:
And so we would posit, again, on those kind of three textual levels, including their own 2021 rule as a grantee, that the health department qualifies as a health care entity that is protected by Weldon or should be protected by Weldon.

[00:07:27] Speaker 05:
I want to assume, for purposes of my question, that the Oklahoma State Department of Health is an institutional health care entity.

[00:07:37] Speaker 05:
Yes.

[00:07:38] Speaker 05:
I am not sure that I agree with either you or your adversary on how this Weldon Amendment applies.

[00:07:47] Speaker 05:
Now, number one, you said the Department of Health, and I agree with you, is the grantee, not the state.

[00:07:54] Speaker 05:
So the introductory clause refers to the fact that no HHS funds, including Title X funds, can be made available to a federal program, a federal agency, a state, or a local government.

[00:08:10] Speaker 05:
OK, now those are the grantees.

[00:08:13] Speaker 05:
We don't have that situation, right?

[00:08:16] Speaker 05:
None of those entities are a grantee.

[00:08:23] Speaker 05:
We have a State Department of Health, which is the grantee, correct?

[00:08:28] Speaker 04:
Correct, here.

[00:08:29] Speaker 05:
All right.

[00:08:29] Speaker 05:
And so I assume that I can't discriminate against myself.

[00:08:34] Speaker 05:
An entity cannot subject myself to discrimination, obviously, right?

[00:08:41] Speaker 05:
And so, do you agree with that?

[00:08:43] Speaker 04:
Not entirely.

[00:08:44] Speaker 05:
You think Bob Baccarat can say, Bob, you're discriminating.

[00:08:50] Speaker 05:
No, that doesn't make any sense.

[00:08:52] Speaker 05:
So the verb is subject.

[00:08:53] Speaker 05:
The object is discrimination.

[00:08:56] Speaker 05:
I'm not trying to argue with you, but I think you might have misunderstood my question, because I think probably nobody on the planet would disagree that

[00:09:05] Speaker 05:
I cannot subject myself to discrimination.

[00:09:08] Speaker 04:
No, that's correct.

[00:09:08] Speaker 04:
I was going to add a caveat to that of saying that the state could discriminate against the state health department or something.

[00:09:13] Speaker 05:
All right.

[00:09:13] Speaker 05:
Well, there you go.

[00:09:15] Speaker 05:
So let's say, so that would be your argument.

[00:09:19] Speaker 05:
So that the state, now that, of course, is a hypothetical that you just mentioned, because as you just mentioned, the state is not a grantee.

[00:09:28] Speaker 05:
The Department of Health is the grantee.

[00:09:30] Speaker 05:
So several part question.

[00:09:33] Speaker 05:
One is,

[00:09:34] Speaker 05:
If that hypothetical scenario that you just mentioned is right, that's hypothetical.

[00:09:41] Speaker 05:
The State Department of Health is not a grantee.

[00:09:45] Speaker 05:
So even if the Department of Health is an institutional health care entity, they are not subjecting anybody to discrimination for the refusal to provide coverage for the referral of abortions.

[00:10:04] Speaker 05:
Right?

[00:10:05] Speaker 04:
I'm not entirely sure I followed that, because I thought I heard you say the State Department of Health is not a grantee.

[00:10:09] Speaker 04:
And our position would be that it is a grantee.

[00:10:12] Speaker 05:
So the Department of Health, no, I said exactly the opposite.

[00:10:16] Speaker 04:
Yeah, and that's what I may have misunderstood.

[00:10:18] Speaker 05:
I meant to say the Department of Health is the grantee, not the state of Oklahoma, correct?

[00:10:23] Speaker 05:
OK, so the way that this works is if the state is the grantee, it can't discriminate against this agency

[00:10:32] Speaker 05:
the Department of Health, for the Department of Health's refusal to provide coverage for the referral of abortions.

[00:10:41] Speaker 05:
Is that happening?

[00:10:43] Speaker 05:
I think here we would say it's- The state of Oklahoma isn't even a grantee.

[00:10:47] Speaker 04:
But what we're pointing to here is to say no funds may be made available in this act to a federal agency or to a state or local government if such agency, so a federal agency, subjects any individual or institutional health care entity to discrimination.

[00:11:04] Speaker 04:
OK.

[00:11:04] Speaker 04:
What we're positing is that.

[00:11:06] Speaker 05:
OK.

[00:11:06] Speaker 05:
So I'm with you.

[00:11:08] Speaker 05:
So let's say you have a challenge to,

[00:11:13] Speaker 05:
to Title X. You have a challenge saying, federal government, you shouldn't be funding HHS because they are subjecting an institutional health care entity, i.e.

[00:11:31] Speaker 05:
the Department of Health, to discrimination based on its refusal to provide coverage for the referral of abortions.

[00:11:39] Speaker 05:
So that seems like a really good argument if you were to say, I want to have a citizen suit against Congress.

[00:11:51] Speaker 05:
I want to challenge the whole Title X program, because it is providing coverage to the Department of Health, I guess, the way your argument would work.

[00:12:09] Speaker 05:
Or I guess your argument is that the federal government is providing funding to HHS, and HHS is subjecting the institutional health care entity to discrimination because it's refusal to provide coverage for referral for abortions.

[00:12:26] Speaker 05:
So all that would be a great challenge for a citizen suit to the whole structure of Title X.

[00:12:34] Speaker 05:
You're not doing that.

[00:12:35] Speaker 04:
Well, because we've brought an AP.

[00:12:37] Speaker 04:
That's what we've nestled.

[00:12:38] Speaker 04:
Our Weldon claim is actually nestled within the broader APA claim, which as we've said, because of the fact that this is an appropriations rider, we have brought the Weldon Amendment in saying that under the APA, the federal government

[00:12:51] Speaker 04:
cannot issue and apply regulations in violation of federal statutes and federal law, in that they're doing that as a violation of the APA by simply ignoring a clear prerogative to their federal agency.

[00:13:03] Speaker 04:
You cannot discriminate against health care entities.

[00:13:07] Speaker 05:
But the remedy with the statute has to be abrogated.

[00:13:13] Speaker 05:
What you're taking is a fundamental challenge to the structure of a federal grant program

[00:13:20] Speaker 05:
and saying, well, OK, we're not challenging Title X. We're saying that we want that violation to be overlooked because we want that HHS money even though the federal government has completely violated this rider.

[00:13:37] Speaker 05:
But we want to say, well, but we want to use it for a completely different purpose.

[00:13:41] Speaker 05:
We want to assume that the structure remains intact.

[00:13:45] Speaker 05:
And we're going to say, well, it would be arbitrary

[00:13:50] Speaker 05:
to deny coverage to the Department of Health when the whole import of the statute is not a condition on the applicability of the HHS grant program.

[00:14:10] Speaker 05:
The challenge is actually to the whole existence of the grant

[00:14:15] Speaker 05:
1008 of Title X. Respectfully, we would just disagree.

[00:14:19] Speaker 04:
We think this is a quintessential as applied challenge of saying under the APA there are statutes that they have to follow.

[00:14:24] Speaker 04:
There is their own 2021 language that they should follow protecting grantees that they're simply not doing.

[00:14:30] Speaker 04:
And that this court under Weldon could rule in that direction without affecting the 2021 rule could stay in place entirely and just say that

[00:14:38] Speaker 04:
We're holding you to your own promises and Weldon's statutory promise to objectors.

[00:14:44] Speaker 05:
You're going to have two minutes for rebuttals.

[00:14:50] Speaker 04:
What I wanted to wrap up with was the spending clause, was moving to the spending clause to simply say that the core syllogism or tautology that's at the center of the spending clause, we don't believe defendants have ever really answered between

[00:15:01] Speaker 04:
Pennhurst saying, along with a number of other cases, that conditions must be unambiguous and Rust's finding that this specific condition is ambiguous, that those are two binding Supreme Court decisions that require a finding in our favor that defendants have never fully wrestled with.

[00:15:22] Speaker 05:
Colleagues, you can ask whatever questions you'd like.

[00:15:25] Speaker 05:
And you'll have two minutes.

[00:15:26] Speaker 05:
Do you say you wanted to preserve two minutes?

[00:15:28] Speaker 04:
I did.

[00:15:28] Speaker 04:
We did.

[00:15:28] Speaker 04:
We'd like to preserve two minutes for rebuttal.

[00:15:30] Speaker 04:
I'm happy to wrap up.

[00:15:31] Speaker 04:
If there are any spending clause questions, including on the reason that they're positing now, which is that there's supposedly a clear spending condition that's kind of generic that just allows them to do this, I'm happy to answer those questions.

[00:15:43] Speaker 05:
Well, I appreciate that.

[00:15:46] Speaker 05:
I'm sorry.

[00:15:47] Speaker 05:
So much for your time.

[00:15:48] Speaker 05:
Judge Abel, do you have any questions?

[00:15:50] Speaker 05:
No.

[00:15:51] Speaker 05:
Well, I'm sorry.

[00:15:52] Speaker 05:
I have a question about that.

[00:15:53] Speaker 05:
Yes, Your Honor.

[00:15:55] Speaker 05:
So what you say is that under U.S.

[00:15:59] Speaker 05:
v. Vance, there has to be a clear statement because it impacts federalism.

[00:16:05] Speaker 05:
They say, well, it doesn't impact federalism because all they have to do is to die the subsidy.

[00:16:09] Speaker 05:
But let's just put that aside.

[00:16:10] Speaker 05:
Assuming that there has to be clarity in what Congress says, HHS says, well, Title X does that.

[00:16:20] Speaker 05:
In 304.A, it says that eligibility for the grant is predicated on complying with the conditions that HHS sets.

[00:16:36] Speaker 05:
And you're saying, and you say in your reply brief, well, that's not good enough because you still have to look to the statute.

[00:16:44] Speaker 05:
So my question is, what if in 304.A-B,

[00:16:50] Speaker 05:
of Title 42, Congress said, we are incorporating herein the eligibility requirements that are set forth in the 2021 rule.

[00:17:05] Speaker 05:
Under that scenario, would Congress have spoken with adequate clarity, a lack of ambiguity in order to satisfy Pennhurst,

[00:17:17] Speaker 04:
I believe the answer to that would be yes if they've expressly incorporated and said we are incorporating these these conditions and I think that's happened in a past case even one of the cases that's been cited here is it has something similar it happens where there are regulations first and then Congress came in and said we

[00:17:39] Speaker 04:
basically taking those regulations and putting them into statute.

[00:17:43] Speaker 04:
We think that would, yes, that would be clear, but that is not what has happened here.

[00:17:47] Speaker 05:
So what if Congress in 3.4a says to satisfy the eligibility requirement, you have to satisfy HHS's requirements, administratively adopted for eligibility?

[00:18:04] Speaker 05:
Does that speak?

[00:18:07] Speaker 05:
Did it technically say, like a complaint does, you know, I incorporate the argument?

[00:18:12] Speaker 05:
Specifically said, basically the substantive equivalent, you have to comply with it.

[00:18:16] Speaker 04:
Sorry, Your Honor, I didn't mean to interrupt.

[00:18:18] Speaker 04:
If it is specifically citing to requirements that are themselves clear, then I would think the answer would be yes.

[00:18:25] Speaker 04:
In other words, if they've incorporated or made part of the statutory scheme, requirements that you could go and say, those are clear, I see this HHS requirement that's been incorporated,

[00:18:35] Speaker 04:
expressly is a clear requirement that I can understand, then I would think yes.

[00:18:41] Speaker 04:
Now the one caveat I might give to that is I would think that would apply only to the regulations at the time that Congress passed that language, because say HHS then a year later added

[00:18:51] Speaker 04:
another regulation that had not been incorporated and said, oh, we're going to impose that condition on you too.

[00:18:56] Speaker 04:
I think a state would have a very valid objection.

[00:18:59] Speaker 05:
What if Congress said you have to eligibility is contingent on the HHS eligibility requirements that are

[00:19:06] Speaker 05:
in place at the time of the grant application.

[00:19:09] Speaker 04:
Then I think then you start to run into problems if you have an indefinite indefinite incorporation of future rulemaking.

[00:19:15] Speaker 05:
I think then you run straight into a non-delegation problem of saying... A non-delegation problem, but you're not challenging this based on a lack of...

[00:19:23] Speaker 05:
delegation.

[00:19:26] Speaker 04:
No, but one of our arguments is that if this is interpreted in the way that the government is insisting it should be interpreted, then you would run into a non-delegation problem and that we should interpret statutes to avoid constitutional issues and that a basically here

[00:19:42] Speaker 04:
using the statute that they're using, which is a very generic rulemaking statute, and saying that means that essentially the spending clause is null and void and they can do whatever they want and not violate the spending clause, that that is a big problem under delegation then.

[00:19:55] Speaker 04:
And it eviscerates the spending clause, which is very dangerous, saying that the spending clause now all Congress has to ever do is put into its statute that you can impose whatever conditions you want.

[00:20:07] Speaker 04:
And then the spending clause is not a thing anymore.

[00:20:11] Speaker 04:
We think that would eviscerate the spending clause.

[00:20:13] Speaker 04:
And looking at the spending clause history from Pennhurst to Dole to Arlington in 2005 to Cummings in 2022, where they've consistently said

[00:20:23] Speaker 04:
Congress must be unambiguous.

[00:20:25] Speaker 04:
We don't think that that case law somehow impliedly said, but if Congress says that any condition you want can be passed, that means that you're good.

[00:20:36] Speaker 04:
Any spending clause legislation that it's just they can impose whatever they want.

[00:20:40] Speaker 04:
We're not clear where the limiting principle is.

[00:20:42] Speaker 04:
Under their theory, it would seem that they could impose actually the performance of abortions on states.

[00:20:48] Speaker 04:
If any condition flies, any condition goes, where is the limit?

[00:20:52] Speaker 04:
We haven't seen it.

[00:20:54] Speaker 04:
We haven't seen them articulate a limiting principle.

[00:20:57] Speaker 04:
They certainly haven't cited a case where a court said that language means, yes, the spending clause is abrogated.

[00:21:04] Speaker 05:
Well, wouldn't his answer obviously be, well, that satisfies Article 1, Section 8.

[00:21:12] Speaker 05:
It's a valid exercise of the spending power, but it also violates the statute, violates statute 10.08.

[00:21:21] Speaker 04:
I mean, A, I don't think they would concede that that pilot's 1008, but I think that it's still... Well, it doesn't have any... I mean, your argument doesn't have anything to do with the validity of the statute under the spinning power.

[00:21:35] Speaker 04:
I think it does.

[00:21:36] Speaker 04:
It's saying that if their argument is accepted, the spending clause forever and forevermore will never be a thing that a court could ever consider.

[00:21:42] Speaker 04:
And for 40 years now, both district courts, circuit courts, and the Supreme Court have routinely entertained spending clause challenges and occasionally ruled in favor of the spending clause challenges, like the District of Colorado did just a couple of years ago, like the Supreme Court did in Arlington, which may be the closest case to what we're arguing for.

[00:22:01] Speaker 04:
In Arlington in 2005, the Supreme Court said two things need to be analyzed for a spending clause challenge.

[00:22:06] Speaker 04:
It said one, the statutory text.

[00:22:08] Speaker 04:
And then from the statutory text, it moved on and said two, case law.

[00:22:12] Speaker 04:
We look at statutory text and case law to see if this condition is clear.

[00:22:17] Speaker 04:
And the statutory text here, in our case, has been held in Rust to be ambiguous.

[00:22:22] Speaker 04:
So that part is resolved.

[00:22:23] Speaker 04:
And then you go to case law, and that's Rust.

[00:22:26] Speaker 04:
Rust has said Title X does not mention or discuss referrals.

[00:22:30] Speaker 04:
It's a binding holding that it is ambiguous.

[00:22:33] Speaker 03:
Do you have authority that the non-delegation clause has as much vitality in a spending clause challenge as it has in regulatory legislation?

[00:22:47] Speaker 03:
I'm not entirely sure I followed the question.

[00:22:49] Speaker 03:
We know what non-delegation clause prohibits.

[00:22:52] Speaker 03:
Yes.

[00:22:53] Speaker 03:
It typically arises in regulatory actions where the government is acting as a policeman regulating things.

[00:23:01] Speaker 03:
You need to know what is going to be regulated at my conduct and what isn't.

[00:23:07] Speaker 03:
A spending clause case isn't really a regulatory case so much as it is a

[00:23:15] Speaker 03:
something the government is giving to people, and it's contractual in nature.

[00:23:20] Speaker 03:
So my question is, is that doctrine of non-delegation, does it have the same vitality in a spending clause case as it has in other cases?

[00:23:31] Speaker 03:
My inclination is it might not, but I admit I have no law.

[00:23:35] Speaker 03:
I haven't researched it.

[00:23:37] Speaker 04:
I'm not sure I have a case off the top of my head that addresses that directly.

[00:23:41] Speaker 04:
I guess what we would say is that, and this is why we haven't really delved on the, or focused on the non-delegation clause much, because our only bringing it up was just to say we think if you interpret the spending clause this way, you might create non-delegation issues, but we focused on the specific spending clause text.

[00:24:00] Speaker 03:
Sorry, Your Honor, go ahead.

[00:24:03] Speaker 03:
I was just wondering if you had a case on it.

[00:24:05] Speaker 03:
I didn't need a big exposition of it because we've allowed your time to go on.

[00:24:09] Speaker 03:
And the answer is, no, you don't have a case on it.

[00:24:11] Speaker 03:
You haven't thought about it much, nor have I until now, and I don't have a case.

[00:24:15] Speaker 03:
So that's the end of the discussion.

[00:24:16] Speaker 03:
You and I are on the exact same plane at the moment.

[00:24:19] Speaker 04:
That's fair.

[00:24:20] Speaker 04:
I think the only thing I would just briefly add on the spending clause

[00:24:24] Speaker 04:
is that, yes, some of the spending clause cases have not involved necessarily regulations, but it would just seem logical that if Congress can't do it through ambiguous language, then surely the agency can't do it either.

[00:24:43] Speaker 03:
In other words, if you take those same cases and you invent it... I'm not drawing a distinction between Congress and an agency, but I'm drawing a distinction between regulations, which uses governmental power,

[00:24:53] Speaker 03:
and spending cases which are contractual in nature.

[00:24:58] Speaker 03:
But anyway, I think that's enough for now.

[00:25:01] Speaker 04:
That's good.

[00:25:01] Speaker 04:
And that's a fair question, Your Honor.

[00:25:03] Speaker 02:
Can I go back to the Weldon Amendment?

[00:25:04] Speaker 02:
Yes, yes.

[00:25:05] Speaker 02:
For purposes of thinking about what is discrimination potentially under the Weldon Amendment, does an objector have to do anything to sort of prove or justify their objection or just simply making it enough?

[00:25:18] Speaker 02:
And once that is made, regardless of whether it's meritorious or not, then that

[00:25:22] Speaker 02:
constitutes or could constitute discrimination in the Weldon Amendment.

[00:25:25] Speaker 04:
Good question, Your Honor.

[00:25:26] Speaker 04:
Our view is that Weldon doesn't say, it doesn't cabinet on it has to be a conscientious moral objection or doesn't cabinet on it has to be a sincere objection.

[00:25:38] Speaker 04:
I mean, maybe you could implicitly read that or we think ours is perfectly sincere.

[00:25:42] Speaker 04:
But yes, our view is that the Weldon Amendment is basically completely unconcerned with the reason why

[00:25:50] Speaker 04:
as much as just saying you don't discriminate against those who refuse.

[00:25:53] Speaker 04:
And here, Oklahoma's Health Department has refused and has cited the Weld Amendment again for the first time almost a year ago to the Health Department, or to HHS, to the Federal Health Department.

[00:26:09] Speaker 04:
Okay, and I should add really quickly, because I wanted to get to this earlier, is that we do want to make one correction to the record, which is,

[00:26:19] Speaker 04:
We had said in our reply brief that there was no administrative ruling on our administrative appeal yet, and actually that was incorrect.

[00:26:26] Speaker 04:
That ruling came in the week before our reply was due, and due to just a bureaucratic misunderstanding, we got the wrong information that that ruling had not come in.

[00:26:34] Speaker 04:
There has been an administrative ruling now.

[00:26:37] Speaker 04:
And we will file that with the court, either us, the government, or both at some point here very soon.

[00:26:44] Speaker 04:
But we were just alerted to that yesterday.

[00:26:45] Speaker 04:
So I wanted to correct our record that there is an administrative ruling and it is a denial of Oklahoma Health Department's claim.

[00:26:52] Speaker 05:
Okay.

[00:26:53] Speaker 05:
Well, I appreciate you letting us know about that.

[00:26:56] Speaker 05:
The only thing I would ask the Council to confer is just make sure you're in agreement about what you submit.

[00:27:02] Speaker 05:
We don't want to hear argument about it.

[00:27:04] Speaker 05:
a readabout argument about it, that it would be good for us to get.

[00:27:08] Speaker 04:
Yes, and that was our assumption, and we'll work with opposing counsel.

[00:27:11] Speaker 05:
All right, thank you.

[00:27:12] Speaker 05:
Thank you.

[00:27:12] Speaker 05:
And we will give you two minutes for rebuttal.

[00:27:24] Speaker 01:
Thank you.

[00:27:24] Speaker 01:
Good afternoon, Your Honors, and may it please the Court.

[00:27:26] Speaker 01:
Brian Springer on behalf of the federal government.

[00:27:29] Speaker 01:
I'd just like to take a step back and talk about what's at issue here.

[00:27:33] Speaker 01:
The regulatory requirements in this case apply only to family planning projects established with Title X funds, and all that the regulations require is that the Title X project offer pregnant patients information about their various options, like foster care, adoption, and pregnancy termination, as well as information about where to obtain a service if the patient so requests.

[00:27:56] Speaker 01:
The Title X project can fulfill these obligations by providing a 1-800 number to pregnant patients, where hotline operators will discuss the various options.

[00:28:06] Speaker 01:
If Oklahoma no longer wishes to comply with these valid conditions attached to the federal funds, it's free to decline the funds, and HHS will make grant awards to other entities.

[00:28:18] Speaker 03:
I'm curious about what you're saying.

[00:28:19] Speaker 03:
Well, we refer to an 800 number, so our problem is solved, but if you couldn't

[00:28:26] Speaker 03:
overtly advocate something like an abortion.

[00:28:30] Speaker 03:
Can you get around that by saying, call this 800 number, let them do the advocacy for us?

[00:28:38] Speaker 03:
Is that really a safe harbor for you that you're referring to a third party?

[00:28:42] Speaker 01:
Sure.

[00:28:43] Speaker 01:
I think that this in general is exactly what doctors do.

[00:28:46] Speaker 01:
What the rule requires is just to provide information about the various options.

[00:28:50] Speaker 01:
It's neutral factual information.

[00:28:52] Speaker 01:
It's not directing the patient toward one option over another.

[00:28:55] Speaker 03:
Did you provide an 800 number for a group that says, don't do it?

[00:29:02] Speaker 03:
So, Your Honor, what do you get from this 800 number?

[00:29:05] Speaker 03:
Is it an advocacy number?

[00:29:07] Speaker 01:
No, it's not, Your Honor.

[00:29:08] Speaker 01:
It's the same type of non-directive counseling and referral that would be provided by the provider, the doctor, him or herself.

[00:29:18] Speaker 03:
Nobody challenges that.

[00:29:19] Speaker 03:
Everybody agrees.

[00:29:21] Speaker 03:
that the advocacy number is itself non-advocacy.

[00:29:24] Speaker 03:
I mean, the 1-800 number is a non-advocacy group.

[00:29:28] Speaker 01:
Your Honor, my understanding is there's no dispute about that.

[00:29:30] Speaker 01:
This would just be providing that, you know, serving in that role.

[00:29:34] Speaker 03:
That's enough for me.

[00:29:34] Speaker 03:
Thank you.

[00:29:35] Speaker 03:
Yeah.

[00:29:36] Speaker 03:
Answers my question.

[00:29:37] Speaker 03:
Thank you, Your Honor.

[00:29:38] Speaker 02:
Counsel, why wasn't your website sufficient?

[00:29:40] Speaker 02:
Meaning, when I looked at the negotiations between the state and HHS, when

[00:29:46] Speaker 02:
Oklahoma flagged this issue saying we may have compliance problems because of local law and policy.

[00:29:52] Speaker 02:
How about we just give the HHS website as a sort of means of referral?

[00:29:58] Speaker 02:
HHS said, no, it has to be a 1-800 number.

[00:30:00] Speaker 02:
And then ever since then, even though you've argued in your brief that you were engaging with Oklahoma to try to work out a resolution, that seemed pretty one-sided.

[00:30:09] Speaker 02:
It seemed like you said, here's your option.

[00:30:10] Speaker 02:
Either you take it or you don't take our grant.

[00:30:13] Speaker 02:
So it was kind of left out there.

[00:30:14] Speaker 02:
Why was the website insufficient?

[00:30:16] Speaker 01:
So I don't know the specifics of exactly why, you know, that that was rejected.

[00:30:22] Speaker 01:
I believe that the thought was that that was sort of too many steps away that, you know, the, the provision of information, you know, this is someone who's going into their doctor.

[00:30:30] Speaker 01:
and saying, I'd like to have more information about my options.

[00:30:33] Speaker 01:
I'm pregnant, and I would like to have more information.

[00:30:35] Speaker 01:
And so what the rule requires is that the provider actually give them that neutral factual information.

[00:30:41] Speaker 01:
And if the patient says, oh, I'd like to obtain this service or this service, you hand them the name, address, and phone number.

[00:30:48] Speaker 01:
And I would just note as well that in the back and forth with Oklahoma, Oklahoma initially agreed to have its providers either

[00:30:58] Speaker 01:
specifically give the counseling and referral required by the rule or to give the phone number to pregnant patients.

[00:31:05] Speaker 01:
And on that understanding, HHS made a continuation award.

[00:31:09] Speaker 01:
And then as soon as it had made that award, Oklahoma decided that it wasn't going to do what it had said it was going to do.

[00:31:16] Speaker 02:
Yeah.

[00:31:16] Speaker 02:
And it can be read in your brief to essentially say, well, they were negotiating in good faith, so to speak, about what they were intended to do.

[00:31:23] Speaker 02:
But another way to look at it is this was a real difficult conundrum for providers in Oklahoma trying to navigate a new state law that triggered post-Obs.

[00:31:32] Speaker 02:
and figuring out what the limits of that may be and being maybe somewhat cautious of their approach.

[00:31:38] Speaker 02:
And so I guess, again, as I read your brief, at least that occurred to me that that could be an interpretation.

[00:31:46] Speaker 02:
But how do you respond to my characterization as we do our analysis under what may be an arbitrary and capricious response by HHS that HHS really wasn't negotiating.

[00:31:56] Speaker 02:
They said, here's what you have to do to comply, either to take our money or not.

[00:31:59] Speaker 01:
I don't think that the negotiation itself is something that's required by HHS.

[00:32:04] Speaker 01:
HHS works with its partners in this program to try to find solutions that will meet the regulatory requirements.

[00:32:11] Speaker 01:
And here, Oklahoma came back with a proposal that HHS thought didn't meet its regulatory requirements and said, you can come back with an alternative.

[00:32:21] Speaker 01:
Here are some examples of things you can come back with.

[00:32:23] Speaker 01:
And originally, Oklahoma came back with one that satisfied HHS and allowed it to grant an award.

[00:32:29] Speaker 01:
So there was this back and forth that happens.

[00:32:31] Speaker 01:
But at the end of the day, of course, Oklahoma is required to follow these program requirements if it wants to continue to receive the Title X funding unless structure its program in a way that actually complies with those requirements.

[00:32:48] Speaker 01:
I'm happy to turn to whatever other issues

[00:32:53] Speaker 01:
would be helpful to turn to.

[00:32:54] Speaker 05:
You're talking about whatever you want to talk about.

[00:32:59] Speaker 01:
We'll stop if you have questions.

[00:33:01] Speaker 01:
So I'm happy to turn to, maybe it would be helpful to also turn to the spending clause and talk a little bit about the spending clause.

[00:33:08] Speaker 01:
I think one, the thing that's really important to understand here is that the spending clause cases are all about notice.

[00:33:15] Speaker 01:
The question is whether or not there's notice in the statute that tells the recipients of funds what they're required to do.

[00:33:23] Speaker 01:
And here we have a very clear directive from Congress that

[00:33:27] Speaker 01:
all of the Title X grants are subject to the regulations and conditions that HHS puts on them.

[00:33:33] Speaker 01:
The Supreme Court itself has said in cases like Bennett and in cases like South Dakota v. Dole that Congress is allowed to say that recipients of funds have to comply with agency regulations and requirements.

[00:33:47] Speaker 05:
That's all true, but Bennett, the only time I think that the word spin clause is used in Bennett is in Thomson Reuters' syllabus.

[00:33:57] Speaker 05:
at the start of Bennett.

[00:34:01] Speaker 05:
Bennett doesn't discuss the spending clause.

[00:34:05] Speaker 05:
You mentioned Missouri versus Biden.

[00:34:08] Speaker 05:
Well, as you point out, the parties did brief the spending clause.

[00:34:13] Speaker 05:
The problem is the per curio opinion that the Supreme Court issued says nothing about the spending clause or even the substance of the argument.

[00:34:21] Speaker 05:
under the spending clause.

[00:34:24] Speaker 05:
Jackson is, you know, I think the Center for Constitutional Accountability mentions Jackson.

[00:34:33] Speaker 05:
I don't think Jackson addresses the spending clause.

[00:34:36] Speaker 05:
Your argument seems to, I mean, it makes logical sense to me, but I don't know that you've cited a case that says that Congress speaks with adequate clarity under Pennhurst when it

[00:34:51] Speaker 05:
directs an applicant for a grant to comply with regulatory requirements that are set forth by an agency.

[00:35:04] Speaker 05:
They have argued under Pennhurst that, well, you just read the cases and it says that Congress has to speak with adequate clarity.

[00:35:11] Speaker 05:
It doesn't say anything about agencies speaking with adequate clarity.

[00:35:16] Speaker 05:
So how do we credit your argument without any authority?

[00:35:19] Speaker 01:
So Your Honor, I want to give two different responses to that.

[00:35:23] Speaker 01:
So the first response is I would urge the court to look at South Dakota v. Dole, which I do think is a case about the spending clause and has language that specifically says that Congress can attach conditions based on federal statutes and agency.

[00:35:37] Speaker 01:
I think it says regulations.

[00:35:39] Speaker 01:
So I do think that there is authority.

[00:35:41] Speaker 01:
I mean, I think all of the cases that you've mentioned do support us.

[00:35:44] Speaker 01:
And I would also just mention, Biden v. Missouri is an example where

[00:35:48] Speaker 01:
The Supreme Court throughout its opinion made very clear that it was talking about conditions that are attached to Medicare and Medicaid funding.

[00:35:57] Speaker 05:
But don't let your train of thought, I'm sorry, but the whole point of that discussion was saying that those regulations fall within the domain of the statute.

[00:36:11] Speaker 05:
The regulations are not invalid because they fell within the domain of

[00:36:18] Speaker 05:
the stanchion, that's not their argument.

[00:36:22] Speaker 01:
But Your Honor, I think that the reasoning would apply here as well, because the regulations that we have at issue here similarly fall within the realm of the statute.

[00:36:33] Speaker 01:
And the Supreme Court had no problem, even though the states there raised the exact same arguments that the states raise here, it didn't find a problem with HHS in that case, including a COVID-19 vaccination requirement for nurses who are working at federally funded hospitals.

[00:36:48] Speaker 01:
So I mean, I think that the reasoning carries over to this

[00:36:51] Speaker 01:
And of course, the conditions in Medicare, Medicaid, and all kinds of federal spending programs, these are very commonplace conditions that agencies add and that Congress in its statute says that agencies are allowed to impose and that recipients of the funds are required to follow.

[00:37:11] Speaker 01:
And I think that's what the Supreme Court recognized in Biden v. Missouri.

[00:37:15] Speaker 01:
And as we mentioned, there's some discussion of this in Bennett and South Dakota v. Dole and these other cases as well.

[00:37:26] Speaker 01:
As I said, I'm happy to turn to anything else.

[00:37:31] Speaker 02:
Council, can I ask you about the Weldon Amendment argument?

[00:37:33] Speaker 02:
First, you agree that it's really purely a textual analysis, meaning I don't see any cases cited by the parties that help us understand how the terms of the Weldon Amendment are defined.

[00:37:47] Speaker 02:
There's some references to regulations, but I guess my takeaway from the briefs is this really is an argument as a matter of first impression.

[00:37:55] Speaker 02:
I mean, do you agree with that?

[00:37:56] Speaker 01:
So Your Honor, there have not been a lot of cases about this because these objections are sort of a new thing.

[00:38:02] Speaker 01:
As HHS said in its rule, from 1993 to 2017, it had basically never had an objection under the Weldon Amendment.

[00:38:10] Speaker 01:
So these are sort of a new creature that is just starting to kind of come into form.

[00:38:16] Speaker 02:
OK, so that leads into my next question, which is,

[00:38:19] Speaker 02:
I understand your argument to say that the Weldon Amendment, this annual appropriations rider, has walked side by side with the referral requirement regulation for many years, decades.

[00:38:32] Speaker 02:
So there's really no harm here.

[00:38:35] Speaker 02:
No one's raised an objection before.

[00:38:37] Speaker 02:
But why shouldn't we be skeptical of that history?

[00:38:42] Speaker 02:
Because the landscape that underlies all of it changed so dramatically in June of 2022.

[00:38:48] Speaker 02:
meaning the rule was in place, but when HHS looked at how to evaluate potential objectors in the Weld Amendment Discrimination Provision post-DOBS, does that history, is it meaningless at this point?

[00:39:03] Speaker 01:
I don't think that the history is meaningless.

[00:39:05] Speaker 01:
I think the right way to be thinking about this is that

[00:39:08] Speaker 01:
The way everyone has been treating the Weldon Amendment for a long time is that, and this is true if you look at its text as well, that it focuses on individual doctors, facilities, and organizations that are providing the medical care or the medical coverage.

[00:39:24] Speaker 01:
And I think here, Oklahoma and its State Department of Health are not serving in that role.

[00:39:29] Speaker 01:
You know, they say, for example, at pages 35 and 36 of their opening brief, that they're the ones who are overseeing the program and dispersing funds to the units who are actually providing the on-the-ground medical care.

[00:39:44] Speaker 01:
And I don't think that those entities are the ones that are listed in the statute who are the ones who can object.

[00:39:50] Speaker 01:
And that's the way that this has been understood for a long time, which is why Oklahoma and a coalition of states just said in the parallel Ohio litigation that states aren't covered by the Weldon Amendment, although it may be the case that individual state employees and doctors would be able to object in certain circumstances.

[00:40:08] Speaker 02:
You certainly hint at a preclusion argument in your response, but is that the government's position that either through means of estoppel or preclusion that Oklahoma

[00:40:18] Speaker 02:
has attached itself to one position before the Sixth Circuit.

[00:40:21] Speaker 02:
And then that disavows their opportunity to change their position here.

[00:40:25] Speaker 01:
Your Honor, it may be questionable whether or not their formal preclusion or estoppel applies.

[00:40:30] Speaker 01:
But here, the question is whether or not Oklahoma is allowed to get equitable relief.

[00:40:36] Speaker 01:
And I think it's appropriate to consider what Oklahoma said in a parallel case in the way that it raised the arguments in this case.

[00:40:44] Speaker 03:
We actually have a slightly different rule

[00:40:48] Speaker 03:
for litigants who take different positions in different cases from the regular race judicata rules, don't we?

[00:40:57] Speaker 03:
I mean, on race judicata, we ask, was it decisive, and was there a final verdict, and all.

[00:41:03] Speaker 03:
But we also look at scans at people that tell one court, here's what the law is, and then next day they tell another court the law is different.

[00:41:12] Speaker 03:
Don't we have some accountability for that kind of change in the positions?

[00:41:17] Speaker 01:
Your Honor, I think that we do.

[00:41:19] Speaker 01:
There are doctrines that talk about that, particularly the doctrine of estoppel.

[00:41:24] Speaker 01:
But again, it may be that sort of the formal.

[00:41:27] Speaker 03:
It's just under the concept of judicial estoppel.

[00:41:29] Speaker 03:
You make a statement to a judge or a court, and then you're kind of stopped from taking a different position.

[00:41:36] Speaker 03:
But maybe that estoppel may only apply to the same judge.

[00:41:40] Speaker 03:
I don't know, the same court.

[00:41:42] Speaker 01:
Your Honor, I think that Estoppel may be able to apply more broadly.

[00:41:45] Speaker 01:
But again, I mean, I don't think that the court needs to get into this, especially because right now, all we're talking about is a preliminary injunction.

[00:41:51] Speaker 01:
We're talking about equitable relief.

[00:41:53] Speaker 01:
And I think it was appropriate both for the district court to consider the circumstances of Oklahoma sort of changing positions, as well as, you know, kind of raising these things in sort of oblique ways.

[00:42:04] Speaker 01:
in deciding whether or not to grant a preliminary injunction to Oklahoma.

[00:42:08] Speaker 03:
One of the problems of estoppelism, if you use it as a formal doctrine, is you need a final judgment.

[00:42:15] Speaker 03:
And we don't have a final judgment in that case yet.

[00:42:18] Speaker 01:
Your Honor, I think that's true of issue preclusion, the preclusion doctrines.

[00:42:23] Speaker 01:
It may not be true always, at least as to estoppel.

[00:42:27] Speaker 01:
But again, I don't think that the court has to get into this.

[00:42:29] Speaker 03:
That's what I was kind of asking.

[00:42:31] Speaker 01:
Does it apply?

[00:42:33] Speaker 01:
Your Honor, we haven't argued that it specifically applies in this case.

[00:42:37] Speaker 01:
But again, I mean, I think that the court has the ability to look at this because we're talking about equitable relief.

[00:42:43] Speaker 01:
And this is something that can influence whether or not Oklahoma should get a preliminary injunction.

[00:42:47] Speaker 01:
And we think that it shouldn't.

[00:42:51] Speaker 05:
Can I ask you just the same question that I asked your adversary about the way that the Wellman Amendment works?

[00:43:01] Speaker 05:
I mean, you certainly have vigorously questioned whether or not the Department of Health is an institutional health care entity, but you really haven't agreed or disagreed, I suppose, in your briefing on the implicit premise of the Department of Health's argument that if the Department of Health is an institutional health care entity,

[00:43:30] Speaker 05:
then there would be some inconsistency or tension with the Weldon Amendment.

[00:43:36] Speaker 05:
And so my question is, the way that the Weldon Amendment is framed, I thought had addressed really the fundamental funding of the federal government to HHS.

[00:43:59] Speaker 05:
noting that there's going to be a prohibition against any funding to a federal entity if it subjects an institutional health care entity, presumably like the Department of Health, according to Oklahoma, to discrimination for the refusal to provide coverage for the referral of abortions.

[00:44:22] Speaker 05:
You really haven't questioned that premise

[00:44:27] Speaker 05:
Right, and assuming that you still don't, that the question for you is, is the Department of Health an institutional health care entity?

[00:44:35] Speaker 05:
If that's true, then you lose under the Weldon Amendment.

[00:44:38] Speaker 01:
So your honor, I think the way that you've described how the Weldon Amendment works, I mean, I think part of what the problem is here is it's been a little bit confusing exactly who we're referring to within the context of the Weldon Amendment as the healthcare entity versus the state or the state or local government.

[00:44:57] Speaker 01:
Sometimes there seems to be a switching back and forth between who we're talking about.

[00:45:01] Speaker 01:
I think it's correct that the right way to be thinking about this is that really,

[00:45:06] Speaker 01:
you know, the only potential player that we're talking about is the Oklahoma State Department of Health.

[00:45:13] Speaker 01:
That's the grantee and that's the one that's distributing funds to the people on the ground who are, you know, providing the medical services.

[00:45:20] Speaker 01:
And that that's sort of the right level of, you know, we're not talking about money going to HHS.

[00:45:26] Speaker 01:
HHS is just distributing the money to grantees.

[00:45:29] Speaker 01:
And that money under the Weldon Amendment can't go to

[00:45:33] Speaker 01:
a state or local government that discriminates against health care entities that won't provide for abortions or refer for abortions.

[00:45:44] Speaker 01:
So I think it's right to be focusing on the Oklahoma State Department of Health as the relevant player who potentially is engaged in discrimination.

[00:45:53] Speaker 02:
But why can't they do both?

[00:45:55] Speaker 02:
Meaning, why can't the Department of Health be the grantee?

[00:45:58] Speaker 02:
that is receiving the money from HHS.

[00:46:02] Speaker 02:
But I just heard Oklahoma say that they're also in partnership, you know, provider to patient direct care out in the counties.

[00:46:11] Speaker 02:
It seems in an as applied challenge that we should be focused on

[00:46:15] Speaker 02:
not just what they do, but they pled this in their complaint, too, saying that they're doing direct, essentially, patient care.

[00:46:22] Speaker 02:
I can imagine that would be different, potentially, for other departments of health and state agencies, but Oklahoma here is, and I heard them just argue this, saying that, again, they're engaged in direct patient care.

[00:46:32] Speaker 02:
So why can't the grantee here be both one that's carrying out the services, that's the purposes of the grant, but also the one that's dispersing money to others?

[00:46:43] Speaker 01:
She I don't want to get out ahead of the agency too much because as we've discussed this is all sort of new and we don't have a lot of facts of what's going on on the ground here.

[00:46:51] Speaker 01:
I think what Oklahoma has said in its brief is that it's it's largely operating as an overseer.

[00:46:57] Speaker 01:
Some of the State Department of Health employees are the ones who are actually providing

[00:47:02] Speaker 01:
the health care services.

[00:47:03] Speaker 01:
And to the extent they are, they may be able to object.

[00:47:06] Speaker 01:
And I'm not, you know, I don't think we want to preclude that there might be some grantees who could object.

[00:47:11] Speaker 01:
I mean, I think the important step back point that's going on here is just that the way the Weldon Amendment for a long time has worked is that patients are able to get their care from somebody.

[00:47:22] Speaker 01:
There may be individuals within the grants program who object and aren't able to perform some of the requirements.

[00:47:30] Speaker 01:
But someone else in the program has to be able to.

[00:47:32] Speaker 01:
It's never been the case that someone can sort of, you know, nix out entire regulatory requirements by just saying, I'm the grantee and I don't want anybody in my program to perform all these requirements, even if they're willing to do so.

[00:47:47] Speaker 02:
Yeah, but here, as you just said, if there's a Oklahoma State Department of Health provider who objects, they're doing so, you know, wearing the hat of the state of Oklahoma, right?

[00:47:57] Speaker 02:
So why would that not be then imputed to the entire grantee or Department of Health, which I understand they're claiming?

[00:48:04] Speaker 01:
And I'm not sure that it actually might be that an individual employee has a personal belief against doing one of the requirements.

[00:48:11] Speaker 01:
And if so, they might have a valid objection.

[00:48:15] Speaker 01:
And the same is true as the Weldon Amendment says of certain facilities and organizations, et cetera.

[00:48:21] Speaker 01:
But that's the way this normally plays out on the ground, is that there's an individual person or entity that's objecting to performing these requirements.

[00:48:30] Speaker 01:
And that's fine so long as someone else can perform the requirements within the umbrella of the project.

[00:48:38] Speaker 01:
Unless there are further questions.

[00:48:42] Speaker 02:
I can ask one more.

[00:48:46] Speaker 02:
On the third issue, under the arbitrary and capricious, in your response brief, you mentioned that Oklahoma should have just directed any grievances directly to HHS rather than going to the court.

[00:48:57] Speaker 02:
But didn't they do that?

[00:48:59] Speaker 01:
They didn't do it in the proper way because here what we have is a binding regulation that HHS has issued that I think everybody agrees requires Title X projects to counsel and refer for abortions.

[00:49:14] Speaker 01:
And all that HHS did in the decision under review is apply that regulation to Oklahoma.

[00:49:20] Speaker 01:
So if Oklahoma thinks that the regulation itself needs to be changed,

[00:49:23] Speaker 01:
the right way to bring up that grievance is to go to the agency and petition for rulemaking and say, you need to change your regulation.

[00:49:30] Speaker 02:
So it's only the rulemaking aspect of it.

[00:49:32] Speaker 02:
It's not the agency action to implement the rule.

[00:49:37] Speaker 02:
In other words, here, once the rule was in place, they joined other states to sue about that rule after the rule was in place.

[00:49:45] Speaker 02:
I think it's somewhere in the record to say they also did provide notice and comment when that rule was being contemplated.

[00:49:50] Speaker 02:
But really the agency action we're reviewing, as I understand it, under this claim is the decision the agency made, obviously, to rescind the grant that had previously been given.

[00:50:01] Speaker 02:
So at that point though, the way I read the record is they were continuously going back to HHS and sort of communicating that they disagreed with that decision before they filed a lawsuit.

[00:50:12] Speaker 02:
So I'm just having a hard time understanding why

[00:50:15] Speaker 02:
You say, well, the answer should have been they should have come to us.

[00:50:17] Speaker 02:
I mean, what good would that have done, I guess?

[00:50:20] Speaker 01:
Your Honor, again, I think really the main problem is that they didn't use any of the formal procedures to ask the agency to change its rule.

[00:50:30] Speaker 01:
The agency has a binding regulation that says that Title X projects are required to provide this neutral factual information.

[00:50:36] Speaker 01:
And all that HHS did was apply that regulation.

[00:50:40] Speaker 01:
I mean, and I would note, too,

[00:50:42] Speaker 01:
that HHS, you know, it wasn't simply that HHS applied that.

[00:50:45] Speaker 01:
I mean, it did also release a question and answer document after Dobbs came out where HHS said, you know, we understand that the Supreme Court has said that the states are allowed to regulate abortion.

[00:50:57] Speaker 01:
Of course, our requirements about counseling and referral don't entrench on that and remain in effect even after the Supreme Court's decision in Dobbs.

[00:51:06] Speaker 03:
I took it that your suggestion that they should go back to the agency and petition for a change

[00:51:12] Speaker 03:
was kind of a gratuitous suggestion that here's an easier way to address this.

[00:51:18] Speaker 03:
But I didn't think you were arguing formally that that was necessary to preserve the legal arguments for us.

[00:51:25] Speaker 03:
Did I miss that?

[00:51:28] Speaker 01:
So, Your Honor, I mean, I think it's both.

[00:51:30] Speaker 01:
I think really what Oklahoma should have done here is brought this formally to the agency.

[00:51:35] Speaker 01:
It should have.

[00:51:36] Speaker 03:
I got all that language, and I thought that was, well, that's what they should have done.

[00:51:41] Speaker 03:
I didn't catch until maybe just a hint right now that you're saying that when they didn't do that, they are somehow procedurally barred from doing it another way.

[00:51:52] Speaker 03:
Am I misunderstanding?

[00:51:54] Speaker 03:
Are you arguing it that strongly, or were you just simply saying, look, there was an easier, more amicable way of addressing this problem?

[00:52:01] Speaker 01:
Your Honor, I mean, I think the court doesn't have to sort of reach the question.

[00:52:05] Speaker 01:
The Supreme Court has said that this, when there's intervening Supreme Court precedent that might cast doubt on the application of an agency regulation, the right way to bring this about is to go- That's the ambiguous word, too.

[00:52:16] Speaker 03:
The right way.

[00:52:17] Speaker 03:
But is it the indispensable way?

[00:52:19] Speaker 03:
That's the way that- That's the question I'm asking you.

[00:52:21] Speaker 01:
That's the way that Oklahoma is required to bring this up.

[00:52:24] Speaker 03:
So you're arguing that until they go to the agency and formally ask for a change in the rule,

[00:52:32] Speaker 03:
They are procedurally barred from bringing this in litigation.

[00:52:35] Speaker 03:
Is that your argument?

[00:52:37] Speaker 01:
Your honor, I wouldn't call it procedurally barred, but it does bear on what the correct answer is under the arbitrary and capricious question.

[00:52:44] Speaker 01:
And here, your honor, I think the important point is even if the court thought that what Oklahoma did here was enough,

[00:52:51] Speaker 01:
HHS did specifically, its action was not arbitrary and capricious.

[00:52:55] Speaker 01:
It both applied a valid regulation, and it had a back and forth where it considered all of the important factors that went into the decision.

[00:53:05] Speaker 03:
It might have a special role to play in interlocutory appeal, which is a preliminary kind of an approach.

[00:53:13] Speaker 03:
And we have more of an equitable kind of look-see at that.

[00:53:18] Speaker 03:
Maybe you're just simply saying,

[00:53:20] Speaker 03:
in the weight of equities they had another option so that they aren't quite so hurt under the injury prong as they would be otherwise because they gave up something they could have done.

[00:53:33] Speaker 03:
I understand that argument, but if you're looking at it that it's a procedural requirement that they've missed and therefore they are precluded from making the argument here.

[00:53:43] Speaker 03:
I didn't catch it that that was the way it was being presented by you in the briefs, but you're seeming to suggest that now.

[00:53:51] Speaker 01:
Your Honor, I read the Supreme Court's decision in our v. Robbins to say that the proper procedure in a case like this, where there's been an intervening Supreme Court decision that may cast doubt on certain applications of an agency's regulation,

[00:54:05] Speaker 01:
that the requirement under the APA is to go to the agency and petition for rulemaking because the agency applies its regulations as written, which is exactly what the agency did here.

[00:54:16] Speaker 03:
So you think that case said that that was an indispensable step that had to be taken or you have not preserved or exhausted your argument?

[00:54:24] Speaker 01:
I think when someone is raising an argument like Oklahoma's raising here, that basically the agency should revisit its regulation, the way to bring about that challenge and then to bring it to court is to go to the agency with a petition for rulemaking.

[00:54:39] Speaker 01:
And once the agency makes a decision on that petition, you can challenge that decision in court.

[00:54:49] Speaker 01:
So unless there are further questions, we'd have to do a firm thank you very much.

[00:55:03] Speaker 04:
Your Honors, I'll try to move quickly, maybe reverse order.

[00:55:07] Speaker 04:
We think that's not a fair reading, the hour decision that was just being talked about, and it wouldn't make sense to say that a binding Supreme Court decision could come out, but HHS doesn't have to follow it until there's a petition for rulemaking and months and months and years of years of process that occurred.

[00:55:22] Speaker 04:
I mean, the Constitution binds, the Supreme Court binds immediately.

[00:55:26] Speaker 04:
Second, we would say that

[00:55:28] Speaker 04:
In terms of the equity of our position that we have now disavowed from the Ohio case, simply that was not the health department's position.

[00:55:35] Speaker 04:
The health department has taken the Weldon Amendment position now for almost a year.

[00:55:39] Speaker 04:
And if anything, it was the health department that convinced the Attorney General's office to change their position, and so it is not fair

[00:55:45] Speaker 04:
to punish the health department's objection because the attorney general took a position and then has become convinced otherwise having consulted with the health department about what their beliefs on Weldon are.

[00:55:56] Speaker 04:
South Dakota versus Dole, the reference in South Dakota versus Dole to regulations we think is drastic or administrative directives is a drastic over reading.

[00:56:06] Speaker 04:
It says federal statutory and administrative directives.

[00:56:09] Speaker 04:
Now note the word and there, it's not or.

[00:56:11] Speaker 04:
It's not you could have one or the other.

[00:56:13] Speaker 04:
It's a clear federal statute and administrative directives with that clear condition.

[00:56:19] Speaker 04:
Because Dole is very clear on page 207, if Congress desires to condition, it must do so unambiguously.

[00:56:25] Speaker 04:
That's Dole.

[00:56:27] Speaker 04:
And the and there cannot be forgotten.

[00:56:29] Speaker 04:
I want to really quickly hit on Judge Ebell's point, the all options talk line.

[00:56:35] Speaker 04:
I actually went to their website yesterday just because I had that same question in my head, and I looked at it a long time ago.

[00:56:40] Speaker 04:
It has a thin veneer of neutrality, but it's very clearly promoting abortion and encouraging abortion.

[00:56:47] Speaker 04:
Among other things, there's resources for abortion.

[00:56:50] Speaker 04:
There's a Hoosier Abortion Fund that talks about

[00:56:54] Speaker 04:
And this link, by the way, would have to be in Oklahoma stuff that talks about how to essentially evade Indiana law and get funding, et cetera, to move out to have abortions, trainings on abortion and all their press releases are about abortion justice or most of them are about abortion justice and actually them filing suit against state laws on abortion.

[00:57:13] Speaker 05:
Have you made that argument in your briefing or is there anything

[00:57:16] Speaker 05:
in our record that substantiates what you just said.

[00:57:19] Speaker 04:
Yes, so we have not made that argument in our briefing, in part because that state law argument is very late blooming here.

[00:57:26] Speaker 04:
The government did not make a state law argument below about what exactly does this cut into state law.

[00:57:32] Speaker 05:
Well, they certainly argued in their answer brief that the call-in information was offered, was accepted in the 2022-23 grant.

[00:57:43] Speaker 05:
and that Oklahoma had approved it and then changed its mind.

[00:57:49] Speaker 05:
And they included in the record all of those letters from, I think it's OPM and HHS.

[00:57:56] Speaker 05:
And I didn't see anything saying, yeah, Oklahoma understands that, but Oklahoma rejected or disagrees with that proposal because it's not a non-directive.

[00:58:08] Speaker 05:
It's directive.

[00:58:09] Speaker 04:
No, that is correct, Your Honor.

[00:58:11] Speaker 04:
That part of it is not in the record.

[00:58:12] Speaker 04:
The record does include the link, though.

[00:58:14] Speaker 04:
I mean, that's where I found it last night, was literally looking through the record and seeing that link and saying, I'm going to go back to that website and look at that.

[00:58:22] Speaker 04:
So the link is in the record from when it was filed.

[00:58:24] Speaker 04:
So that is there.

[00:58:25] Speaker 04:
And to kind of parrot Judge Federico's comments, yes, this was a negotiation and this was not Oklahoma hiding the ball or accepting funding and then trying to kind of commit subterfuge.

[00:58:36] Speaker 04:
And in fact, the record shows that it was literally within seven days of us coming to a definitive decision that we notified HHS.

[00:58:44] Speaker 04:
We notified them very quickly after we basically reached a tentative conclusion, but then said, no, we can't do the options talk line.

[00:58:51] Speaker 04:
We notified them within seven days.

[00:58:53] Speaker 04:
We were not hiding the ball or trying to keep that knowledge from them.

[00:58:56] Speaker 04:
We notified them immediately.

[00:58:57] Speaker 05:
What if, you know, we live in a technological era, you know, what if there was an 800 call-in number that was completely non-directive, there was, you know, that the lawyers confer and that there's nothing that encourages abortion, that there's nothing that

[00:59:12] Speaker 05:
suggests abortion, that it's truly sort of like, I think, you know, the analogy that I'm thinking of is, you know, we're Oklahomans, no chance.

[00:59:24] Speaker 05:
But, you know, the OBA, you know, a lot of times, you know, I need a lawyer and, you know, I call up you and you say, well, I don't know, call up the Oklahoma Bar Association and they'll tell you the list of all the lawyers that do everything in the state of Oklahoma.

[00:59:38] Speaker 05:
And they're not going to call it a backer act lawyer or whatever.

[00:59:44] Speaker 05:
It's going to be completely non-directive.

[00:59:48] Speaker 05:
It's fairly easy to create something like this.

[00:59:51] Speaker 05:
So if there was something like that, would this solve the problem with upland resistance to take this 2024 grant?

[00:59:58] Speaker 04:
It's difficult to say without seeing what the option would look like because the devil is often in the details.

[01:00:03] Speaker 04:
And I don't, you know, obviously in this case, the health department tried to propose just sending them to the federal government as a compromise option.

[01:00:12] Speaker 04:
That was rejected.

[01:00:14] Speaker 04:
the details of a specific option beyond that, it's very difficult to say, again, because we'd almost have to see the details.

[01:00:22] Speaker 05:
Well, the reason I ask, I mean, I'm not trying to settle your lawsuit, but, you know, the whole point, say, of the Will and Amendment is referral for abortion.

[01:00:32] Speaker 05:
You took issue with the language in the termination notice that they agreed not to require a referral for abortion.

[01:00:48] Speaker 05:
And so if there's a truly non-directive call-in number or whatever, you know, my question to you is, well, would that be, you know, for means something.

[01:01:00] Speaker 05:
You know, forget the verb referral or a noun, but for means something.

[01:01:09] Speaker 05:
You want a referral about abortion, referral concerning abortion, referral as to abortion, referral for abortion.

[01:01:16] Speaker 05:
And so my question is,

[01:01:18] Speaker 05:
If it was truly non-directive, maybe you didn't like this particular verbiage, but if it was truly non-directive, how could that be considered a referral for an abortion?

[01:01:30] Speaker 04:
I think the way it would be considered potentially a referral for abortion, again, depending on the details, would be simply the connecting, since abortion is verboten in Oklahoma, connecting them with somebody knowing that that person in that

[01:01:46] Speaker 04:
even if it's non-directive, is going to give them the information exactly, if they ask for it, where and when and how to do something that is verboten under Oklahoma law.

[01:01:55] Speaker 03:
That kind of goes back to my... The record doesn't, I don't think, unless I've missed it, I did miss it if it were just in the record, because I focus on the briefing, but does the record...

[01:02:09] Speaker 03:
give us a transcript of what you would get in that action phone call?

[01:02:14] Speaker 03:
No, there's no transcript.

[01:02:16] Speaker 03:
Who are you speculating about all of that?

[01:02:19] Speaker 03:
Who is?

[01:02:20] Speaker 03:
If you're asking us to make a ruling based upon whether the referral is to a directed agency

[01:02:26] Speaker 03:
or a non-directed agency.

[01:02:28] Speaker 03:
The record's agnostic.

[01:02:30] Speaker 03:
It's represented to be a non-directed agency, and that was sufficient for Oklahoma for a long time.

[01:02:36] Speaker 04:
It was sufficient for Oklahoma until Dobbs brought back into play a very robust abortion ban.

[01:02:43] Speaker 03:
Yes, there's no- Poor Dobbs, you still had this language about referring for adoption, not referring, it doesn't say referring about, but as

[01:02:55] Speaker 03:
As Judge Bacharach said, it says refer forward.

[01:02:57] Speaker 03:
I think that is an advocacy position rather than an about, which is an informational position.

[01:03:04] Speaker 04:
Potentially.

[01:03:05] Speaker 04:
I mean, again, kind of going back to Judge Bacharach's example, we don't advocate in this case, even in Oklahoma, that somebody giving truly neutral information in terms of is abortion legal in Oklahoma?

[01:03:20] Speaker 04:
No.

[01:03:20] Speaker 04:
Well, that wouldn't be.

[01:03:22] Speaker 05:
Well, what about the hypothetical?

[01:03:25] Speaker 05:
For a pregnant woman, what are the options that are available?

[01:03:32] Speaker 05:
And somebody says, okay, well, there's this option.

[01:03:36] Speaker 05:
Just like if you call the LBA number, you know, what are the options?

[01:03:39] Speaker 05:
Well, you can mediate, you can arbitrate, and you can litigate.

[01:03:43] Speaker 05:
You know, so if you call up an 800 number and they say, you know, if you're a pregnant woman, what are your options?

[01:03:50] Speaker 05:
Well, you can

[01:03:52] Speaker 05:
There's something called abortion.

[01:03:55] Speaker 05:
There's something called, you know, da-da-da-da-da.

[01:03:57] Speaker 05:
These are all your options.

[01:03:59] Speaker 05:
If you want an obstetrician, this is the number to call, you know.

[01:04:04] Speaker 05:
There's nothing for, you know, referring, you know, work by an obstetrician, any more than you're referring, you know, referring something, you know, for litigation to get the name of the lawyer, you know.

[01:04:19] Speaker 05:
So that's kind of what...

[01:04:21] Speaker 04:
No, I understand, but as we've stated in our reply, we think that there's a big difference between saying here's the options in Oklahoma and then having to say there's an option outside of Oklahoma that Oklahoma public policy and law completely disagrees with, like the suicide option we gave.

[01:04:37] Speaker 04:
We don't think that a state would or should be forced to or, and we do think it would be considered at least some form of promotion or advocacy

[01:04:45] Speaker 04:
even very limited to tell a suicidal person, but one of your options is to commit suicide up in a different state that has assisted suicide.

[01:04:52] Speaker 04:
We think that would be, if you're listing that as an option to the person in the state, it is saying that is a valid and legitimate option to go get, and Oklahoma law says that's not.

[01:05:01] Speaker 04:
In ergo, we think that under Oklahoma law, it is arguably promoting or encouraging abortion.

[01:05:07] Speaker 04:
And that's the position that defendants have taken at least twice in the past 40 years, that abortion referrals are promoting or encouraging abortion.

[01:05:16] Speaker 04:
That's something that they've flipped on several times over the past four years.

[01:05:19] Speaker 04:
And we understand that's not their position now, but it makes it at least arguable or

[01:05:23] Speaker 04:
It's reasonable to see that if you're giving somebody that option from out of state to do something such as drastic here as Oklahoma believes, that it is ending the life of an unborn child.

[01:05:35] Speaker 04:
And I'm going to tell you that option is legitimate and can be had out of state.

[01:05:39] Speaker 04:
We believe that that would cross the line between promoting and encouraging.

[01:05:46] Speaker 05:
Thank you.

[01:05:47] Speaker 05:
This is submitted.

[01:05:48] Speaker 05:
I did want to express appreciation for both sides with your zealous advocacy and your excellent advocacy in your briefs and in your arguments today.

[01:05:57] Speaker 05:
And I appreciate your patience in fielding all of my particularly many questions.

[01:06:07] Speaker 05:
And I hope you don't feel like you didn't get to say what you came to say.

[01:06:11] Speaker 05:
But I so appreciate your excellence.

[01:06:13] Speaker 05:
both sides answers to questions.

[01:06:15] Speaker 05:
I do want to just make one sort of comment we have in conference about it, obviously.

[01:06:20] Speaker 05:
You have a pending motion to expedite.

[01:06:23] Speaker 05:
We haven't technically ruled on it.

[01:06:25] Speaker 05:
I hope it's fairly evident to everybody, particularly in light of this setting that we made, that this is not something that we have overlooked.

[01:06:34] Speaker 05:
And we are very conscious of both sides wanting an expeditious determination.

[01:06:42] Speaker 05:
You have asked for July 15th for a decision, and you've, I think, shared in that.

[01:06:48] Speaker 05:
And so I just want you to know that both sides know that we're going to try our best.

[01:06:57] Speaker 05:
And we certainly appreciate the necessity of expeditious consideration.

[01:07:03] Speaker 05:
Court is adjourned.