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), 

Human Resources Code, which prohibits the Health 

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) 

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 Plan ned 

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. 

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