                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                               February 17,2011



The Honorable Robert F. Deuell, M.D.                    Opinion No. GA-0844
Chair, Senate Nominations Committee
Texas State Senate                                      Re: Constitutionality of subsection 32.0248(h),
Post Office Box 12068                                   Human Resources Code, which prohibits the Health
Austin, Texas 78711-2068                                and Human Services Commission from contracting
                                                        under the Women's Health Program with entities
                                                        that perform or promote elective abortions or with
                                                        affiliates of such entities (RQ-0902-GA)

Dear Senator Deuell:

       You request an opinion about Human Resources Code section 32.0248, which requires the
Health and Human Services Commission (HHSC) to establish a demonstration project through
Medicaid,l Title XIX of the Social Security Act, "to expand access to preventive health and family
planning services for women.,,2 TEX. HUM. REs. CODE ANN. § 32.0248(a) (West Supp. 2010); see
42 V.S.C.A. §§ 1396-1396w-5 (West 2003 & Supp. 2010) (Title XIX of the Social Security Act).

        Federal funding is not available for abortions except in very limited circumstances, and states
are not required to fund abortions not funded by the federal Medicaid program. See Harris v.
McRae, 448 V.S. 297, 310-11 (1980). Section 32.0248(h) provides that money spent on the
demonstration project shall not be used to perform or promote elective abortions. See TEX. HUM.
REs. CODE ANN. § 32.0248(h) (West Supp. 2010). It also bars the HHSC from contracting with an
entity if the entity has an affiliate that performs or promotes elective abortions. See id. You ask
about the constitutionality of these restrictions.

        You state that the HHSC has not complied with section 32.0248(h) and that you wrote to the
executive commissioner of the Health and Human Services Commission about this matter. Request
Letter at 2. In reply, the executive commissioner stated that reimbursement under the Women's


         'See Tex. Dep'to/HumanServs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 717 (Tex. App.-Austin 1992,
writ denied) (identifying as "Medicaid" the "program of medical assistance to financially needy persons" administered
under Human Resources Code section 32.021). See TEx. HUM. REs. CODE ANN. § 32.021(a) (West Supp. 2010)
(providing that the HHSC shall administer the medical assistance program under chapter 32).

         2Request Letter at 1 (available at www.texasattorneygeneral.gov).
The Honorable Robert F. Deuell, M.D. - Page 2                 (GA-0844)




Health Program did not include reimbursement for the performance or promotion of elective
abortions, but they were "unable for legal reasons, ... to fully implement the prohibition against
contracting with an organization that is an affiliate of an entity that performs or promotes elective
abortions.,,3 The executive commissioner's legal staff advised him on the basis of Planned
Parenthood of Houston v. Sanchez, 403 F.3d 324 (5th Cir. 2005) "that a court would conclude that
subsection (h) places conditions on the receipt of federal Medicaid funds that exceed federal
regulations and thus violates the Supremacy Clause." Hawkins Letter at 4.

         Sanchez addressed the constitutionality under Title X4 of the Public Health Services Act of
an appropriations act rider applicable to family planning funds. See Sanchez, 403 F.3d. at 340-42.
The rider prohibited the distribution of certain family planning funds to entities "that contract with
or provide funds to individuals or entities for the performance of elective abortion procedures." Id.
at 328 (quoting General Appropriations Act, 78th Leg., R.S., ch. 1330,2003 Tex. Gen. Laws 5023,
5159 (Rider 8b, Department of Health)). Family planning organizations sued in federal district court
to bar enforcement of the rider. See Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d
590,594-95 (W.D. Tex. 2003), remanded by 403 F.3d 324 (5th Cir. 2005). The trial court granted
a preliminary injunction barring enforcement of the rider on the ground that it added an eligibility
requirement to the federal requirements for receiving funds under Title X of the Public Health
Services Act and therefore violated the Supremacy Clause. See id. at 602-06, 612. The defendants
suggested that the plaintiffs could continue receiving family planning funds if they created a separate
affiliate to provide abortion services, but the trial court determined that Rider 8 did not permit this
solution. Id. at 611.

       On appeal, the Fifth Circuit found that the rider did not conflict with Title X of the Public
Health Services Act and that it could be read to permit providers to create independent affiliates that
would perform abortions without federal funding. Sanchez, 403 F.3d at 337-38. Read in this way,
it would be consistent with federal law and would not be preempted. Id. at 338-42.

       The reasoning and conclusion in Sanchez about the preemption of Rider 8 by Title X of the
Public Health Services Act does not apply to Medicaid, which is established under Title XIX of the
Social Security Act. Title 42, section 1396a(p) of the United States Code provides in part:

                         (1) In addition to any other authority, a State may exclude
                 any individual· or entity for purposes of participating under the State
                 plan under this subchapter for any reason for which the Secretary
                 could exclude the individual or entity from participation in a program




         'Letter from Albert Hawkins, Executive Commissioner, Texas Health and Human Services Comm'n to
Honorable Robert F. Deuell, M.D., at 2 (Feb. 4, 2009) (on file with the Opinion Committee) [hereinafter Hawkins
Letter].

        442 U.S.C.A. §§ 300-300a-8 (West 2003).
The Honorable Robert F. Deuell, M.D. - Page 3                     (GA-0844)




                  under subchapter xvrn of this chapter under section 1320a-7,
                  1320a-7a, or 1395cc(b)(2) ofthis title.

42 U.S.C.A. § 1396a(p)(I) (West 2003 & Supp. 2010) (emphasis added). The First Circuit has
determined that the italicized language "permit[sl a state to exclude an entity from its Medicaid
program for any reason established by state law." First Med. Health Plan, Inc. v. Vega-Ramos, 479
F.3d 46, 53 (1st Cir. 2007) (citing S. REp. No. 100-109, at 20 (1987), reprinted in 1987
U.S.C.C.A.N.700). On the basis of section of 1396a(p)(I), as interpreted by First Medical Health
Plan, we believe that a court would likely find that Human Resources Code section 32.0248(h) is
not preempted by the federal Medicaid law and regulations. 5

        Other constitutional provisions may be relevant to section 32.0248(h). See Rust v. Sullivan,
500 U.S. 173, 196 (1991) (addressing federal grant restrictions affecting the First Amendment right
to engage in abortion advocacy and counseling); Sanchez, 280 F. Supp. 2d at 608-09 (opining that
the rider placed an unconstitutional condition on a woman's right to have an abortion).6 However,
other constitutional issues may raise fact questions, which cannot be resolved in an attorney general
opinion. Accordingly, we do not address additional constitutional provisions.




         'We assume that Human Resources Code section 32.0248(h) is not contrary to federal Medicaid law or
regulations.

          'Briefers have raised these issues. See BrieffromLisa Graybill, Legal Director, American Civil Liberties Union
of Texas, at 2-3 (Sept. 17,2010), Brieffrom TonyR. Thornton, Chair, Board of Directors, Texas Association of Planned
Parenthood Affiliates, at 4-6 (Sept. 16,2010) (an briefs are on file with the Opinion Committee); see also Hawkins
Letter at 3.
The Honorable Robert F. Deuel!, M.D. - Page 4           (GA-0844)




                                       SUMMARY

                       Human Resources Code section 32.0248(h), which applies to
              women's health care demonstration project services, provides that the
              Health and Human Services Commission may not contract with
              entities that are affiliates of entities that perform or promote elective
              abortions. This provision is not preempted by federal law.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
