ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Robert F. Deuell, M.D. Chair, Senate Nominations Committee Texas State Senate Post Office Box 12068 Austin, Texas 78711-2068

Dear Senator Deuell: February 17,2011
Opinion No. GA-0844 Re: Constitutionality of subsection 32.0248(h), HumanResources Code, whichprohibitsthe Health and Human Services Commission from contracting under the Women's Health Program with entities that perform or promote elective abortions or with affiliates ofsuch entities (RQ-0902-GA)

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 ofthe 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 ofthe Social Security Act). Federalfundingis not availablefor abortions exceptin verylimitedcircumstances, 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 ifthe entity has an affiliate that performs or promotes elective abortions. 

### See id. You ask about the constitutionality ofthese restrictions. You statethatthe HHSC has not compliedwith section 32.0248(h) and that you wrote to the executivecommissionerofthe Health and Human Services Commission aboutthis 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 "programofmedical 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.

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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 constitutionalityunder Title X4 ofthe 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 ofcertain family planning funds to entities "that contract with orprovide funds to individuals orentities for the performance ofelective abortion procedures." Id. at 328 (quoting General Appropriations Act, 78th Leg., R.S., ch. 1330,2003 Tex. Gen. Laws 5023, 5159 (Rider8b, DepartmentofHealth)). Familyplanningorganizations suedinfederal districtcourt to barenforcement ofthe rider. See Planned Parenthood ofCent. Tex. v. Sanchez, 280 F. Supp. 2d 590,594-95 (W.D. Tex. 2003), remandedby403 F.3d 324 (5th Cir. 2005). The trial court granted a preliminary injunction barring enforcement ofthe 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 suggestedthattheplaintiffscouldcontinuereceivingfamilyplanningfunds iftheycreated aseparate 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 ofthe Public Health Services Act and that itcouldbe read to permitprovidersto create independent affiliates that wouldperform 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 ofRider 8 byTitle X ofthe Public Health Services Act does not apply to Medicaid, which is establishedunder Title XIX ofthe Social Security Act. Title 42, section 1396a(p) ofthe United States Code provides in part: (1) In addition to any other authority, a State may exclude any individual·or entity for purposes ofparticipating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual orentityfrom participationin aprogram

'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.

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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 establishedby state law." FirstMed. 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 ofsection of 1396a(p)(I), as interpreted by FirstMedical 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 Otherconstitutional provisions maybe relevant to section 32.0248(h). See Rustv. Sullivan, 500 U.S. 173, 196 (1991) (addressing federal grant restrictions affecting the First Amendmentright 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, otherconstitutionalissues may raise fact questions, which cannotberesolved 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. 'Briefershaveraisedtheseissues. See BrieffromLisaGraybill,Legal Director,AmericanCivilLiberties Union ofTexas, at2-3 (Sept. 17,2010),BrieffromTonyR. Thornton, Chair, BoardofDirectors, TexasAssociation ofPlanned 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.

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### SUMMARY HumanResources Code section 32.0248(h), which applies to women'shealthcare demonstrationprojectservices,provides thatthe Health and Human Services Commission may not contract with entities that are affiliates ofentities that perform or promote elective abortions. This provision is not preempted by federal law.

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 Very truly yours,

Assistant Attorney General, Opinion Committee