AGO Opinion 98021

Constitutionality of Amendment Prohibiting Use of Public Trust Funds to Award Grants to Entities Providing Abortion-Related Services
Opinion 98021

SUBJECT: Constitutionality of Amendment Prohibiting Use of Public Trust Funds to Award Grants to Entities Providing Abortion-Related Services

REQUESTED BY: Senator Don Wesely, Senator Jim Jensen

DATE: March 30, 1998

WRITTEN BY: Don Stenberg, Attorney General

Steve Grasz, Deputy Attorney General

This opinion addresses separate but essentially identical

requests submitted by Senator Wesely and Senator Jensen concerning

the constitutionality of a proposed amendment prohibiting the

distribution of certain trust funds to persons or entities which

provide abortion-related services. It also addresses a third

opinion request from Senator Jensen as to the broader issue of what

restrictions a state can constitutionally place on funding to

entities that perform or facilitate the performance of abortions.

The proposed amendment would amend AM 3434 to LB 1070 so as to

provide that "no funds shall be used under this section to award

grants to any person or entity which provides, facilitates, or

counsels or refers for abortions."

As indicated in Senator Wesely's request, the issue of the

validity of similar provisions has arisen previously in other

jurisdictions. Although the issue is complicated and fraught with

controversy, a considerable amount of guidance is available from

these decisions.

Senator Wesely's opinion request quotes from a federal court's

opinion in the case of Kivlahan v. Planned Parenthood of Mid-

Missouri and Eastern Kansas, Inc., Case No. 96-4186-CV-C-2 (W.D.

Mo. 1996). Our research reveals that Kivlahan is an unpublished

opinion, and is not even available through normal legal research

sources. The decision was not reviewed by an appellate court.

Pursuant to the rules of the United States Court of Appeals for the

Eighth Circuit, such opinions "are not precedent and parties

generally should not cite them." Eighth Cir. R. 28A(k).

Consequently, Kivlahan is of no precedential value in Nebraska.

Notwithstanding the status of the Kivlahan decision, we have

reviewed the opinion to examine its logic and application of

precedent. Kivlahan is lacking in both areas. The court in

Kivlahan acknowledged that Missouri's restrictions on the use of

family planning funds need only be rationally related to a

legitimate governmental purpose to survive an equal protection

challenge. Id. at 5. The court further acknowledged that Missouri

has a stated public policy of not promoting or encouraging

abortions, id., and that "the State of Missouri has no positive

obligation to fund or subsidize certain activities, including

abortions." Id. at 6. However, the court then proceeded to engage

in emotional rhetoric supported only by a logical non sequitur.

The opinion relies on factually unsupported leaps of logic to

reach the conclusion that Missouri's funding restrictions were

nothing more than a means to punish a disfavored group. The court

then (correctly) stated that, "the government may not punish an

entity by refusing to contract with it because that entity's agenda

may be politically unpopular." Id. The court further concluded

that it could find "no rational basis for the distinction between

Planned Parenthood and the other eligible recipients for the state

appropriated family-planning funds." Id. The court's inability to

identify a rational basis for the distinction contrasts starkly

with the United States Supreme Court's clear holding that "the

State has an interest in protecting the life of the unborn," and

that the States may actively promote natural childbirth over

abortion. Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 1125 S.Ct. 2791, 2818 (1992).

Most striking of all, however, was the absence from the

Kivlahan decision of any citation, reference or discussion of the

leading case in this area of law, Rust v. Sullivan, 500 U.S. 173,

111 S.Ct. 1759 (1991). In Rust, the U.S. Supreme Court upheld

federal funding restrictions which prohibited Title X fund

recipients from engaging in abortion counseling, referral, and

activities advocating abortion as a method of family planning. The

funding restrictions in Rust provided that "'[n]one of the funds

appropriated under this subchapter shall be used in programs where

abortion is a method of family planning."' Rust, 111 S.Ct. at 1764

(quoting Section 1008 of the Public Health Service Act).

Federal regulations promulgated to implement the law

prohibited Title X fund recipients "from engaging in activities

that `encourage, promote or advocate abortion as a method of family

planning.'" Id. at 1765 (quoting § 59.10(a)). Under the

regulations, "forbidden activities include lobbying for legislation

that would increase the availability of abortion as a method of

family planning, developing or disseminating materials advocating

abortion as a method of family planning, providing speakers to

promote abortion..., using legal action to make abortion

available...and paying dues to any group that advocates abortion as

a method of family planning..." Id.

Most significantly, the regulations also required that Title

X projects "be organized so that they are physically and

financially separate from prohibited abortion activities.'" Id. at

1766 (quoting § 59.9) (emphasis added). Title X funding recipients

were required to "have an objective integrity and independence from

prohibited activities." Id. "Mere bookkeeping separation of Title

X funds from other monies is not sufficient." Id. Among factors

in determining objective integrity and independence were separate

personnel and degree of physical separation of the project from

facilities for prohibited activities." Id. (emphasis added).

In contrast to the federal judge's opinion in Kivlahan, the

Supreme Court in Rust concluded, "There is no question but that the

statutory prohibition . . . is constitutional. In Maher v. Roe, .

. . [w]e held that the government may `make a value judgment

favoring childbirth over abortion, and . . . implement that

judgment by the allocation of public funds.'" Rust v. Sullivan,

111 S.Ct. at 1772 (quoting Maher v. Roe, 97 S.Ct. at 2382))

(emphasis added). The Supreme Court also discussed the ability of

States to make funding decisions consistent with legislative policy

and stated, "There is a basic difference between direct state

interference with a protected activity and state encouragement of

an alternative activity consonant with legislative policy." Id. at

1772 (quoting Maher, 97 S.Ct. at 2383)).

We note that the plaintiff in Kivlahan, Planned Parenthood,

also claimed that the state's funding restrictions violated its

First Amendment speech rights. Kivlahan at 2. Although the

Kivlahan court ruled only on the Fourteenth Amendment equal

protection challenge, it did so using language sounding in First

Amendment terms: "[T]he State of Missouri may not deny a benefit

to an entity on a basis of its politically unpopular beliefs." Id.

at 6. While true in a general sense, in this context the court's

statement represents a mischaracterization of funding judgments by

state legislatures. In Rust v. Sullivan, the petitioners also

contended that the federal regulations violated the First Amendment

by impermissibly discriminating based on viewpoint. Rust, 111

S.Ct. at 1771-1772. However, the Supreme Court flatly rejected

this argument, stating, "The Government can, without violating the

Constitution, selectively fund a program to encourage certain

activities it believes to be in the public interest, without at the

same time, funding an alternative program which seeks to deal with

the problem in another way. In so doing, the Government has not

discriminated on the basis of viewpoint, it has merely chosen to

fund one activity to the exclusion of the other." Id. at 1772.

Although the unpublished Kivlahan decision is fraught with

error, and although the U.S. Supreme Court's decision in Rust v.

Sullivan upheld the ability of the government to require separation

between eligible program activities and abortion-related services,

it must be made clear that the States are not free to ban grant

applications from persons or entities based on their viewpoint or

their exercise of constitutionally protected activity. Funding

bans must be based on the legitimate interests of the state in

separating state funding of legislatively approved programs from

the direct or indirect funding of other activities such as


As to the particular amendment in question here, we note that

some pre-Rust v. Sullivan cases would seem to call the particular

wording of the proposed amendment into question. See Planned

Parenthood Central and Northern Arizona v. State of Arizona, 789

F.2d 1348 (9th Cir. 1986), aff'd without opinion sub nom. Babbitt

v. Planned Parenthood, 479 U.S. 925, 107 S.Ct. 391 (1986). See

also Op. Att'y Gen. No. 90025 (March 28, 1990). However, the

proposed amendment would appear to be in a much stronger position

in light of the Rust decision. For example, in contrast to the

Arizona decision, the Court in Rust did not seem to utilize a least

restrictive means test in analyzing the funding restrictions, and

even the Kivlahan court applied only a rational basis analysis.

Although the proposed amendment differs in form from the

federal restriction considered in Rust, it seems to have the same

purpose and effect. As in Rust, "we have here not the case of a

general law singling out a disfavored group on the basis of speech

content, but a case of Government refusing to fund activities,

including speech, which are specifically excluded from the scope of

the project funded." Id. at 1773. As in Rust, the proposed

amendment seeks to prevent indirect funding of programs that are

outside of, and contrary to, official state policy.

The refusal of the government to provide funding to groups

that are engaging in activities contrary to government policy was

discussed at some length in Rust:

The regulations govern the scope of the Title X project's

activities, and leave the grantee unfettered in its other

activities. The Title X grantee can continue to perform

abortions, provide abortion-related services, and engage

in abortion advocacy; it simply is required to conduct

those activities through programs that are separate and

independent from the project that receives Title X funds.

Id. at 1774. Under the proposed amendment, the funding

restrictions would still permit an abortion proponent to create an

affiliate which would be eligible to receive funds. See Rust, 111

S.Ct. at 1775 ("a charitable organization could create . . . an

affiliate to conduct its nonlobbying activities using tax

deductible contributions, and at the same time establish . . . a

separate affiliate to pursue its lobbying efforts without such

contributions."). As the Supreme Court stated in Rust,

By requiring that the Title X grantee engage in abortion-

related activity separately from activity receiving

federal funding, Congress has . . . not denied it the

right to engage in abortion-related activities. Congress

has merely refused to fund such activities out of the

public fisc, and the Secretary has simply required a

certain degree of separation from the Title X project in

order to ensure the integrity of the federally funded



In sum, in our opinion, the proposed amendment prohibiting

grants "to any person or entity which provides, facilitates, or

counsels or refers for abortions" is constitutional. A State may

enact funding restrictions which ensure that public funds are not

directly or indirectly subsidizing abortion. A state may require

strict separation of the activities of an ineligible entity from

those of an eligible affiliate. For example, in Rust the federal

government required separation of finances and facilities so as to

ensure no federal funds indirectly subsidized abortion. The State

can require that eligible recipients have facilities and finances

that are completely and objectively separate and independent from

abortion-related services so as to avoid indirect subsidization,

and also to avoid the appearance of government support for abortion

related activity which would be counterproductive to the State's

judicially recognized legitimate interest in promoting childbirth

over abortion. The State need not allow trust fund recipients to

use public funds to channel new clients into facilities where

abortions, abortion counseling, abortion referrals or abortion

promotion take place. As the Supreme Court stated in Webster v.

Reproductive Health Services, "the State need not commit any

resources to facilitating abortions." 492 U.S. 490, 509 (1989).



Attorney General

Steve Grasz

Deputy Attorney General