Did Kentucky's restriction on public funding for abortions conflict with federal Medicaid requirements in 1994?

Plain-English summary

In 1994, Kentucky's Attorney General identified a conflict between a state abortion-funding statute and a federal Medicaid directive as the office understood it from an HHS letter. KRS 311.715 barred Kentucky state funds for abortions except when needed to prevent a woman's physical death. HHS's letter said, according to the opinion, that a state Medicaid plan could not exclude abortions for pregnancies resulting from rape or incest after a revision to the federal Hyde Amendment.

The AG also considered KRS 194.050(1), which generally directed the state human-resources cabinet to adopt rules needed to qualify for federal money. It concluded that this general instruction could not authorize rules that violated the more specific funding restriction in KRS 311.715. The opinion established the office's reading of the statutory conflict; it did not resolve the conflict through a court ruling or describe later law.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG 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.

Historical summary

Medicaid administrators

The commissioner asked whether HHS's December 1993 letter could be reconciled with Kentucky law. The AG read that letter as requiring state Medicaid coverage for abortions needed to save a woman's life and for pregnancies caused by rape or incest. It said KRS 311.715 permitted state funding only for the first category, leaving a conflict over the others.

State health officials and legislators

KRS 194.050(1) directed the cabinet to adopt rules needed to implement federally required programs and qualify for federal funds. The AG said that general authorization yielded to KRS 311.715's specific ban. On that reasoning, it found the cabinet could not use KRS 194.050(1) to adopt the rules HHS requested if those rules used state funds contrary to KRS 311.715.

People reading the 1994 federal directive

The opinion described HHS's interpretation of the revised Hyde Amendment; it did not present the HHS letter as a separate official source on the page. The AG expressly framed its account with "as we understand" because it found the letter unclear. Its holding addressed that understood directive and Kentucky's statutes in February 1994.

Common questions

What conflict did the AG identify?

The AG said HHS required the Medicaid plan to allow funding for abortions following rape or incest, while KRS 311.715 barred the use of Kentucky state funds for those abortions as the AG read the statute in 1994.

Could the cabinet rely on its general duty to qualify for federal funds?

The AG said no where doing so would violate the specific restriction in KRS 311.715. It applied the rule that a specific statute controls over a conflicting general one.

Did the opinion decide what later Medicaid or abortion law required?

No. It interpreted a 1993 HHS communication and Kentucky statutes as they stood when the opinion was issued in 1994.

Background and statutory framework

The Medicaid commissioner asked the AG to compare an HHS letter about a revised Hyde Amendment with KRS 311.715 and KRS 194.050(1). The office quoted the federal appropriations language and the Kentucky funding ban, then applied the specific-over-general construction rule it attributed to Kampschaefer v. Commonwealth ex rel. Kampschaefer, Ky., 746 S.W.2d 567, 568 (1987). It concluded that the general federal-funds mandate did not eliminate the conflict between the specific Kentucky ban and HHS's stated requirement.

Citations and references

• KRS 311.715: Kentucky public-funds restriction discussed by the AG.
• KRS 194.050(1): cabinet's general federal-funding rulemaking duty.
• Kampschaefer v. Commonwealth ex rel. Kampschaefer, Ky., 746 S.W.2d 567, 568 (1987): specific-over-general construction rule.
• P.L. 103-112: federal appropriations act quoted in the opinion.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-004.htm

Original opinion text

OAG 94-4

February 2, 1994

Masten Childers II

Commissioner

Department for Medicaid Services

Cabinet for Human Resources

Frankfort, Kentucky 40601

Dear Commissioner Childers:

This is in response to your recent letter, in which you ask for an Opinion regarding a potential conflict between Kentucky law and a recent directive regarding the Medicaid program issued by the Medicaid Bureau of the U.S. Department of Health and Human Services (HHS).

As we understand it, you have received a letter from HHS, dated December 28, 1993, regarding a Congressional revision to the Hyde Amendment, which deals with federal funding of abortions under the Medicaid program. The revised Hyde Amendment (effective October 1, 1993, as part of P.L. 103-112, the Heath and Human Services Appropriation bill) states:

None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

Although the letter from HHS is not as clearly written as we might like, it appears that HHS' position is as follows. In order to obtain federal Medicaid funding, a State is required to cover payment for abortions that are "medically necessary." HHS has decided that the change in the text of the Hyde Amendment means that "medically necessary" abortions include not only those abortions that are necessary to save the life of the mother but also those abortions that terminate pregnancies resulting from rape or incest. Therefore, HHS concludes, a State Plan for the State's Medicaid program cannot preclude funding for abortions that are performed either to save the life of the mother or to terminate pregnancies resulting from rape or incest.

You have asked us whether the requirements outlined in the HHS letter present any potential conflict with Kentucky law. You particularly refer us to KRS 311.715, which you ask us to examine in light of KRS 194.050(1).

KRS 311.715 addresses, among other things, the use of public funds for abortions. That statute provides, in pertinent part:

No public funds shall be used for the purpose of obtaining an abortion or paying for the performance of an abortion. . . . For purposes of this section, "public funds" means any money of the Commonwealth of Kentucky, any department, agency or instrumentality thereof, or any money of any county, city, agency or instrumentality thereof or any money of any other political subdivision of the Commonwealth, agency or instrumentality thereof. Nothing in this section shall be deemed to deprive a woman of all appropriate medical care necessary to prevent her physical death. . . .

Thus, pursuant to this statute, any "public funds" of state or local departments, agencies, or instrumentalities (hereinafter referred to as "state funds") cannot be used to pay for an abortion except when necessary to save the life of the mother.

The prohibition in this statute against using state funds to pay for an abortion except when necessary to save the life of the mother presents a clear conflict with HHS' requirements for the Medicaid program, as outlined in its December 28, 1993, letter to you. As we understand the letter from HHS, in order to comply with HHS' requirements for the Medicaid program, Kentucky cannot preclude the use of state Medicaid funds for abortions that terminate pregnancies resulting from rape or incest. Using state funds to pay for such abortions, however, is a clear violation of KRS 311.715.

There is another Kentucky statute, however, that conflicts with the requirements of KRS 311.715 in these particular circumstances, and that, if applicable, would eliminate the conflict between KRS 311.715 and the requirements of HHS. That statute, KRS 194.050(1), requires the Cabinet for Human Resources (CHR), among other things, to adopt regulations to qualify for the receipt of federal funds, as follows:

The secretary [of CHR] shall adopt, administer, and enforce such rules and regulations as are necessary to implement programs mandated by federal law, or to qualify for the receipt of federal funds and as are necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs.

In the specific circumstances presented to us, KRS 194.050(1) requires CHR to adopt the rules and regulations that are necessary to meet HHS' requirements for receiving federal Medicaid funds. The obvious problem with this statutory requirement is that, if CHR adopts the rules and regulations necessary to comply with HHS' requirements, the rules and regulations will violate the provisions of KRS 311.715. Clearly the requirements of KRS 194.050(1) are in conflict with the requirements of KRS 311.715 in this situation.

We resolve this conflict by using a well-recognized rule of statutory construction: if two conflicting statutes concern the same subject matter, one generally and the other specifically, the specific statute controls. Kampschaefer v. Commonwealth ex rel. Kampschaefer, Ky., 746 S.W.2d 567, 568 (1987). In this situation, KRS 311.715 is the specific statute, while KRS 194.050(1) is the general statute. KRS 311.715 quite specifically prohibits the use of state funds to pay for an abortion except when necessary to save the life of the mother. KRS 194.050(1), on the other hand, is a general mandate to CHR to adopt the necessary rules and regulations to qualify for federal funds. Accordingly, in this particular situation, in which these two statutes are in conflict, KRS 311.715 controls because it is the specific statute. As a result, KRS 194.050(1) does not authorize CHR to adopt the necessary rules and regulations to comply with the HHS' requirements, because such rules and regulations would violate the specific terms of KRS 311.715. It also necessarily follows that KRS 194.050(1) does not eliminate the conflict between KRS 311.715 and the mandate from HHS.

In conclusion, it is the opinion of the Attorney General that KRS 311.715, which precludes the expenditure of state funds to pay for abortions except when necessary to save the life of the mother, is in conflict with HHS' mandate that Kentucky's State Plan for its Medicaid program cannot preclude funding for abortions that are performed to terminate pregnancies resulting from rape or incest.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

ANN M. SHEADEL

ASSISTANT DEPUTY ATTORNEY GENERAL