Can Texas exclude abortion providers' affiliates from its Medicaid Women's Health Program?

Plain-English summary

Texas runs a Medicaid demonstration project, the Women's Health Program, to expand access to preventive health and family planning services for women. A 2011 statute, subsection 32.0248(h) of the Human Resources Code, said money in that project could not be used to perform or promote elective abortions, and it barred the Health and Human Services Commission from contracting with an entity if that entity had an affiliate that performed or promoted elective abortions. A state senator asked the Attorney General whether those restrictions were constitutional.

The hard part was a federal-law question. The Health and Human Services Commission had told the senator it could not fully enforce the affiliate ban because its lawyers worried the restriction conflicted with federal law and so violated the Supremacy Clause. They pointed to a Fifth Circuit case, Planned Parenthood of Houston v. Sanchez, which dealt with a similar state family planning rider. The Attorney General distinguished that case: Sanchez was about Title X of the Public Health Services Act, while the Women's Health Program runs under Title XIX of the Social Security Act, the Medicaid title. Different federal program, different rules.

For Medicaid, the Attorney General pointed to 42 U.S.C.A. section 1396a(p)(1), which lets a state exclude an entity from its Medicaid program for reasons set by state law. The First Circuit had read that provision broadly in First Med. Health Plan, Inc. v. Vega-Ramos, and on that reading the Attorney General concluded a court would likely find subsection 32.0248(h) is not preempted by federal Medicaid law. The opinion stopped there. It flagged that other constitutional theories, including First Amendment and unconstitutional-conditions arguments raised by briefers, might apply, but said those turn on fact questions that an attorney general opinion cannot resolve, so it did not address them.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Legislature and the Health and Human Services Commission (as the opinion held for them): The opinion told them that the affiliate-and-abortion contracting restriction in subsection 32.0248(h) would likely survive a federal preemption challenge, because federal Medicaid law allows a state to exclude entities for reasons set by state law. That cut against the Commission's stated legal concern that the affiliate ban could not be enforced.

On the Supremacy Clause argument (what the opinion clarified): Under the opinion, the Fifth Circuit's Sanchez decision did not control, because Sanchez analyzed Title X of the Public Health Services Act while the Women's Health Program operates under Title XIX (Medicaid), which has its own exclusion provision in 42 U.S.C.A. section 1396a(p)(1).

On what the opinion did not decide: The opinion expressly declined to address other constitutional provisions, including First Amendment and unconstitutional-conditions arguments, because those raise fact questions outside the scope of an attorney general opinion. A reader cannot take this opinion as a ruling that the restriction is constitutional in every respect, only that it is likely not preempted by federal Medicaid law.

Common questions

Did the Attorney General say the Women's Health Program abortion-affiliate restriction was legal?
The opinion concluded the restriction is likely not preempted by federal Medicaid law. It did not resolve other constitutional questions, so it is not a clean bill of health on every theory.

Why didn't the Fifth Circuit's Sanchez decision settle the question?
The opinion explained that Sanchez concerned Title X of the Public Health Services Act, while the Women's Health Program runs under Title XIX of the Social Security Act (Medicaid), which has a separate provision allowing state-law exclusions.

What federal provision did the Attorney General rely on?
The opinion relied on 42 U.S.C.A. section 1396a(p)(1), which the First Circuit read in First Medical Health Plan, Inc. v. Vega-Ramos to let a state exclude an entity from its Medicaid program for any reason established by state law.

Did the opinion address First Amendment or other constitutional objections?
No. The opinion noted briefers had raised those issues but declined to address them because they raise fact questions that an attorney general opinion cannot resolve.

Background and statutory framework

Human Resources Code section 32.0248 requires the Health and Human Services Commission to establish a demonstration project through Medicaid, Title XIX of the Social Security Act, to expand access to preventive health and family planning services for women. Tex. Hum. Res. Code Ann. § 32.0248(a) (West Supp. 2010); see 42 U.S.C.A. §§ 1396-1396w-5 (West 2003 & Supp. 2010). Subsection 32.0248(h) provides that money spent on the project may not be used to perform or promote elective abortions, and bars the Commission from contracting with an entity that has an affiliate performing or promoting elective abortions. Id. § 32.0248(h) (West Supp. 2010).

Federal funding is generally not available for abortions, and states are not required to fund abortions the federal Medicaid program does not fund. Harris v. McRae, 448 U.S. 297, 310-11 (1980). The Commission's legal staff had worried, based on the Fifth Circuit's decision in Planned Parenthood of Houston v. Sanchez, 403 F.3d 324 (5th Cir. 2005), that the affiliate restriction added an eligibility condition exceeding federal regulations and thus violated the Supremacy Clause. Sanchez, however, addressed Title X of the Public Health Services Act, 42 U.S.C.A. §§ 300-300a-8 (West 2003), and the Fifth Circuit ultimately read that rider to permit providers to create independent affiliates and so found it not preempted. See Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d 590, 594-95 (W.D. Tex. 2003).

The Women's Health Program runs under Medicaid (Title XIX), not Title X. Title 42, section 1396a(p)(1) of the United States Code allows a state to exclude an individual or entity from participating under its Medicaid plan for any reason for which the Secretary could exclude them. 42 U.S.C.A. § 1396a(p)(1) (West 2003 & Supp. 2010). The First Circuit read that language to permit 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). On that basis, the Attorney General concluded a court would likely find section 32.0248(h) is not preempted by federal Medicaid law. The opinion declined to address other constitutional theories, such as those discussed in Rust v. Sullivan, 500 U.S. 173, 196 (1991), because they raise fact questions outside the scope of an attorney general opinion.

Citations

Statutes:

• Tex. Hum. Res. Code Ann. § 32.0248(a) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 32.0248(h) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 32.021(a) (West Supp. 2010)
• 42 U.S.C.A. §§ 1396-1396w-5 (West 2003 & Supp. 2010)
• 42 U.S.C.A. §§ 300-300a-8 (West 2003)
• 42 U.S.C.A. § 1396a(p)(1) (West 2003 & Supp. 2010)

Cases:

• Harris v. McRae, 448 U.S. 297, 310-11 (1980)
• Planned Parenthood of Houston v. Sanchez, 403 F.3d 324 (5th Cir. 2005)
• Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d 590, 594-95 (W.D. Tex. 2003)
• First Med. Health Plan, Inc. v. Vega-Ramos, 479 F.3d 46, 53 (1st Cir. 2007)
• Rust v. Sullivan, 500 U.S. 173, 196 (1991)
• Tex. Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 717 (Tex. App.—Austin 1992, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0844
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0844.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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,[1] 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 U.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 U.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 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 X[4] 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 under subchapter XVIII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.

42 U.S.C.A. § 1396a(p)(1) (West 2003 & Supp. 2010) (emphasis added). The First Circuit has determined that the italicized language "permit[s] 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 1396a(p)(1), 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.

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

[1] See Tex. Dep't of Human Servs. 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).

[2] Request Letter at 1 (available at www.texasattorneygeneral.gov).

[3] 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].

[4] 42 U.S.C.A. §§ 300-300a-8 (West 2003).

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

[6] Briefers have raised these issues. See Brief from Lisa Graybill, Legal Director, American Civil Liberties Union of Texas, at 2-3 (Sept. 17, 2010), Brief from Tony R. Thornton, Chair, Board of Directors, Texas Association of Planned Parenthood Affiliates, at 4-6 (Sept. 16, 2010) (all briefs are on file with the Opinion Committee); see also Hawkins Letter at 3.