Kansas Attorney General Opinion 1992-071

ROBERT T. STEPHAN
ATTORNEY GENERAL June 1, 1992
ATTORNEY GENERAL OPINION NO. 92- 71
Bill McCormick
Director of Federal and State Affairs
Office of the Governor
State Capitol, 2nd Floor
Topeka, Kansas 66612
Re: Domestic Relations -- Family Planning Centers --
Establishment and Maintenance; State Funding of
Contraceptives for Minors
Synopsis: In our opinion the portion of K.S.A. 23-501 which
provides that the secretary of health and
environment (KDHE) shall establish and maintain
family planning centers is directory in nature, not
mandatory. K.S.A. 23-501 prohibits the
distribution of contraceptive information and
services to minors through family planning centers
established and maintained by KDHE. Such centers
are not presently maintained by KDHE specifically
because of the prohibition of K.S.A. 23-501.
Should KDHE reestablish and maintain family
planning centers in the future, so long as K.S.A.
23-501 is in effect contraceptive services could
not be provided to minors at such centers.
A mature minor may authorize medical and surgical
services, including contraceptive services, by
giving an informed consent to such services. In
the absence of an informed consent medical care is
unauthorized, thus subjecting the medical care
providers, whether public or private, to potential
liability.

Two distinct governmental interests may be served
simultaneously without jeopardizing the legality of
either. The mere fact of apparent inconsistency
alone does not negate either governmental interest
nor does one interest prevent or preclude
legislation promoting another interest. Statutes
protecting minors from illicit sexual activity thus
do not preclude acceptance and distribution of
Title X funds which are conditioned upon provision
of contraceptive services to minors. Cited
herein: K.S.A. 21-3502; K.S.A. 1991 Supp. 21-3503;
K.S.A. 21-3504; 21-3602; 21-3606; 23-501; 23-502;
38-1501; L. 1965, ch. 384, § 1; L. 1973, ch.
186, § 20; L. 1975, ch. 462, § 34; L. 1980, ch.
182, § 20; 42 U.S.C.S. § 300.
Dear Mr. McCormick:
As counsel to the governor, you pose a number of questions
regarding the state of Kansas' rights, obligations and
responsibilities concerning the provision of contraceptive
information and services to minors.
Since the issues you raise must be assessed in light of the
interplay of state and federal law which has affected family
planning programs in Kansas, we will begin with an historical
review before reaching your specific questions.
In 1965 the Kansas legislature authorized the then state board
of health to establish and maintain family planning centers in
cooperation with county social welfare offices and county
health departments. L. 1965, ch. 384, § 1. In 1973 that
statute was amended to allow the state board of health to
cooperate with the state social welfare office and county
health departments in the establishment and maintenance of
such centers. L. 1973, ch. 186, S 20. In 1975 another
amendment modified the statute by replacing the state board of
health with the secretary of the newly created department of
health and environment. L. 1975, ch. 462, S 34. Finally,
in 1980 the statute was again amended to its present form now
found at K.S.A. 23-501:
"The secretary of health and environment
shall establish and maintain family
planning centers in cooperation with the
secretary of social and rehabilitation
services and county, city-county and

multicounty health departments." L.
1980, ch. 182, § 8.
This legislative history regarding the authorized cooperative
effort to establish and maintain family planning centers has
not, however, continuously tracked with the actual funding and
implementation of family planning programs in Kansas.
According to information contained in the department of health
and environment's (KDHE) 1991 grant application for Title X
funds, from 1965 to 1970 state-funded family planning clinic
programs were established by the state board of health in nine
Kansas counties in cooperation with local public health
agencies. In 1970 federal funds became available to the
states for family planning programs. An excellent background
review of this federal funding mechanism is presented in
Planned Parenthood Federation of America, Inc., et al. v.
Heckler, 712 F.2d 650 (1983), from which we quote at length:
"In 1970 Congress enacted Title X of the
Public Service Act to establish a
nationwide program with the express
purpose of making 'comprehensive family
planning services readily available to all
persons desiring such services.' Congress
authorized the Department of Health,
Education and Welfare (HEW) to make grants
and enter into contracts with public or
nonprofit private entities to assist in
the establishment of family planning
projects that offer a broad range of
family planning methods, including the
provision of prescription and
nonprescription contraceptive drugs and
devices. See 42 U.S.C. Sec. 300(a)
[42 USCS Sec. (a)] (as amended). The
Title X program was originally funded for
three years, but has since been
reauthorized and refunded continuously.
"In light of the breadth of the statutory
language and clear congressional intent
that all persons receive such services,
Title X grantees have served the teenage
population from the inception of the
program. Following enactment of Title X,
however, Congress frequently expressed its
increasing concern about the still unmet
family planning needs of sexually active
teenagers in this country. See, e.g.,

H.R. Reps. No. 1161, 93rd Cong., 2d
Sess. 14 (1974) ('certain population
groups requiring these services are not
being reached . . . including teenagers');
S. Rep. No. 29, 94th Cong., 1st
Sess. 55 (1975). Ultimately, Congress in
1978 amended the statute itself to require
that Title X projects offer 'a broad range
of acceptable and effective family
planning methods and services (including
. . . services for adolescents).' See
42 U.S.C. Sec. 300(a) [42 USCS Sec.
300(a)] (emphasis added). While this
amendment simply codified accepted past
practice, the added language clearly
reflected Congress' intent to place 'a
special emphasis on preventing unwanted
pregnancies among sexually active
adolescents.' S.Rep. No. 822, 95th
Cong., 2d Sess. 24 (1978).
"In 1981 Congress again amended Title X,
this time to require by statute that
grantees encourage family participation in
their Title X programs. With this
additional language, Section 300(a) of the
Act now reads:
'The Secretary is authorized to make
grants to and enter into contracts with
public or nonprofit private entities to
assist in the establishment and
operation of voluntary family planning
projects which shall offer a broad range
of acceptable and effective family
planning methods and services (including
natural family planning methods,
infertility services, and services for
adolescents). To the extent practical,
entities which receive grants or
contracts under this subsection shall
encourage family participation in
projects assisted under this subsection.'
"42 U.S.C. Sec. 300(a) [42 USCS Sec.
300(a)]." (Emphasis in original).
According to KDHE's grant application, from 1971 to 1975 the
Kansas state board of health applied for, received and
administered Title X grants which supplemented state funding

of family planning projects. In 1971 twelve counties received
Title X projects grants; the board of health continued to
operate twenty state funded family planning clinics in local
health departments. By 1975 family planning services were
being provided to fifty-six counties through a combination of
Title X and state funds.
Throughout the legislative history of K.S.A. 23-501, the
following provision has appeared substantially unchanged:
"Such family planning centers, upon
request of any person who is over eighteen
(18) years of age and who is married or
who has been referred to said center by a
person licensed to practice medicine and
surgery and who resides in this state, may
furnish and disseminate information
concerning, and means and methods of
planned parenthood, including such
contraceptive devices as recommended by
the secretary of health and environment."
In 1975 that provision was the subject of Attorney General
Opinion No. 75-450. A county attorney had questioned the
propriety of a public health nurse administering pregnancy
tests and issuing birth control devices to individuals under
eighteen years of age through a family planning center
established and operated pursuant to K.S.A. 23-501. The
opinion concluded:
"The assistance provided by family
planning centers is available only to that
class of individuals identified in K.S.A.
23-501 which does not include individuals
under eighteen years of age."
In response to that opinion, Dr. Lowell M. Wiese, director
of health for the department of health and environment issued
a memorandum to all county health officers advising "that the
Department of Health and Environment will discontinue the
direct operation of family planning centers established under
K.S.A. 23-501 and 502 on June 3, 1976." The memorandum
further stated:
"This action brings to conclusion our
seven year plan of demonstrating family
planning services in areas of the state
where such services were not available,
then phasing out the state operated

centers as local communities developed
their own integrated services. We believe
that quality family planning services can
best be provided at the community level as
a component of a comprehensive maternal
and child health service.
"The Department has received approval from
the regional HEW office to allocate Title
X funds to county health departments
through the aid-to-county grant program
for integrated maternal and child health
services. The Kansas statutory
qualifications for eligibility for family
planning centers, concerning age,
residence and marital status, as discussed
by the Attorney General in opinion no.
75-450, of December 9, 1975, apply only to
State Department of Health and Environment
centers established under K.S.A. 23-501,
and not to those operated by local health
departments or under private auspices or
through other public agencies. County
Health Departments will therefore be able
to extend a full program of maternal and
child health services, including family
planning services, to all persons, and
thus remain in compliance with Title X
regulations." (Emphasis added).
Within a month of the issuance of that memorandum an Attorney
General's opinion was requested seeking confirmation of Dr.
Weise's statements. Attorney General Opinion No. 76-184
concluded that Dr. Wiese was "entirely correct," opining:
"The qualifications governing eligibility
for services of the centers applies,
clearly, only to services furnished by
'[s]uch family centers' as are
established and maintained by the
Secretary of Health and Environment under
this act. These qualifications manifestly
do not apply to services and programs
offered by county health departments, by
other public agencies, or under private
auspices.
"To recapitulate, if and when the
Secretary of Health and Environment should
reestablish and maintain family planning

centers at any time in the future, so long
as K.S.A. 23-501 is in effect, eligibility
for the services of such centers is
governed by the restriction of that
provision, as discussed earlier in Opinion
No. 75-450. However, that provision, and
the cited opinion, apply only to family
planning centers established and operated
by the Secretary of Health and
Environment, and not to other providers of
such services, including county health
departments. Accordingly, I agree fully
with the advice of Dr. Wiese in the
referenced memorandum."
In July of 1976, state funding for family planning centers was
withdrawn. Since then family planning programs have continued
to provide contraceptive services, including services to
minors, through local health agencies with Title X and locally
generated funds. KDHE serves as the Title X grantee for the
purpose of administering and allocating federal funds to local
program recipients.
Thus, while KDHE originally established many family planning
centers, as of July, 1976 family planning programs have been
maintained primarily by the federal government through Title X
grants; KDHE does not maintain such centers. Expenses
incurred by KDHE in administering and allocating Title X
funds are borne by the federal government. In the absence of
Title X funds, family planning programs in Kansas would be
maintained, if at all, by local public or private agencies.
Should KDHE not seek further Title X funds, a private
non-profit entity or a local public agency could become grant
applicants. Consequently, although K.S.A. 23-501 reads that
the secretary of health and environment shall establish and
maintain family planning centers in cooperation with the
secretary of social and rehabilitation services and county,
city-county and multicounty health departments, since July,
1976 that statute has not been so implemented through KDHE.
Despite the language of K.S.A. 23-501 ("The secretary of
KDHE shall establish and maintain. . ."), in our opinion
that statute is directory in nature, not mandatory. The use
of the word "shall" is not a hard and fast identifying mark
which can foretell the mandatory or directory character to be
assigned to any statutory provision. City of Kansas City v.
Board of County Commissioners of Wyandotte County, 213 Kan.
777 (1974). Factors which indicate that a statute is
mandatory are the presence of negative words requiring that an
act shall be done in no other manner or at no other time than

that designated or a provision for a penalty or other
consequence of noncompliance. Paul v. City of Manhattan,
212 Kan. 381 (1973). Absence of these factors lead us to
conclude that K.S.A. 23-501 is directory in nature.
Turning now to your questions, you first ask whether the state
of Kansas has a right to prohibit by statute the use of public
funds for the distribution of contraceptive services to
minors. As indicated in the above discussion, the Kansas
legislature enacted K.S.A. 23-501 which does prohibit the
distribution of contraceptive information and services to
minors through family planning centers funded by the secretary
of health and environment in cooperation with the secretary of
social and rehabilitation services and county, city-county and
multicounty health departments. As discussed, such centers
are not presently maintained by KDHE nor are state funds
presently used for the distribution of contraceptive services
to minors specifically because of the prohibition found at
K.S.A. 23-501. The source of family planning funds to local
Kansas agencies is primarily Title X funds, a federal source
which specifically requires that family planning methods and
services be made available to adolescents. 42 U.S.C.S. S
300(a).
Whether the state of Kansas could enact another law entirely
banning the use of all public funding, state as well as
federal and local, for contraceptive services to minors is a
separate question. In connection with this issue, you ask
whether either of two recent United States Supreme Court
cases, Rust v Sullivan, 500 U.S. , 114 L.Ed.2d 233, 111
S.Ct. 1759 (1991) or Webster v. Reproductive Health
Services, 492 U.S. 490, 106 L.Ed.2d 410, 109 S.Ct. 3040
(1989), affect the conclusion expressed in Attorney General
Opinion No. 87-66:
"In that minors are protected by the
United States Constitution and possess
constitutional rights, absolute
prohibitions on family planning
(contraceptive) services for minors are
unconstitutional."
That opinion addressed whether a state could prohibit minors
from accessing contraceptives. We understand your question
to be whether a state may prohibit public funding of
contraceptives for minors.
Rust addressed regulations adopted under and implementing
Section 1008 of Title X of the Public Health Service Act which
provides that "none of the funds appropriated under this

subchapter shall be used in programs where abortion is a
method of family planning." 42 U.S.C.S. § 300a-6. Rust
held that the regulations were a permissible construction of
the prohibition contained in Title X.
In Webster the constitutionality of a Missouri statute
regulating the performance of abortions was challenged. A
statutory restriction prohibiting the use of public funds and
public facilities for abortions was upheld by the United
States Supreme Court.
These cases, while not having a direct bearing on Attorney
General Opinion No. 87-66, do make clear that a state or the
federal government may condition the use of its public funds.
As mentioned, Kansas has already prohibited the use of state
funds for contraceptive services to minors in state
established and maintained family planning centers. While
Kansas could enact a law totally prohibiting the use of any
state funds for contraceptive services to minors, as a
practical matter that has been accomplished pursuant to K.S.A.
23-501. As to federal Title X funds, the state through KDHE
could forego applying to be the grant recipient for
administrative and allocation purposes; but since Title X
allows a private non-profit entity to be the grant applicant,
state law may not contravene the use of such federal public
funds. In other words, Kansas may not enact a law prohibiting
private non-profit entities from applying for federal funds
under Title X. Likewise, it is questionable whether the state
could prohibit local public agencies from applying directly
for Title X funds.
Your second group of questions appears to be premised on the
erroneous assumption that the department of health and
environment has established and presently maintains family
planning clinics. You ask whether K.S.A. 23-501 requires
KDHE to cooperate in the "establishment" and "maintenance"
of family planning clinics? Clearly the statute authorizes
state sponsored family planning centers. However, as
discussed, in our opinion K.S.A. 23-501 is directory rather
than mandatory. Were that statute being implemented, KDHE
would have a responsibility to establish and maintain such
centers in cooperation with SRS and local health agencies.
However, K.S.A. 23-501 has not been implemented since 1976.
You also ask whether the provision by KDHE of services,
supplies and funding of family planning clinics constitutes
"maintaining" such clinics. Were KDHE providing services,
supplies and funding of family planning clinics it had
established, in our opinion, KDHE would be considering to be
maintaining such clinics. You then ask whether KDHE's
participation in establishing and maintaining family planning

clinics pursuant to K.S.A. 23-501 permit it to refuse
contraceptive services to minors. Again, if KDHE were
maintaining family planning clinics, as opined in Attorney
General Opinion No. 75-450, K.S.A. 23-501 would prohibit
distribution of contraceptive services to minors in such
clinics.
You next draw our attention to Attorney General Opinion No.
91-93 which concluded:
"An unemancipated, immature minor is not
considered legally capable of
understanding the nature and consequences
of medical or surgical treatment or
procedures and therefore is not legally
capable of providing an informed consent
to any medical or surgical services."
In the course of that opinion we stated that, "absent such an
informed consent a health care provider risks liability even
if a minor falls within one of the statutory exceptions to the
parental consent requirement." In light of that opinion, you
now ask: To the extent physicians and/or other health care
providers may incur liability arising from unauthorized care
to minors, can the state of Kansas and/or a local unit of
government incur similar liability for provision of services
related to contraception or compensable injury arising
therefrom?
Since such a wide range of contraceptive devices exists, in
the discussion of liability as it relates to an absence of
informed consent to medicare care, that term will refer only
to those contraceptive devices which necessitate a
prescription (such as birth control pills) or the active
assistance of a health care provider (such as an inter-uterine
device). The term will not refer to contraceptives which may
be purchased over-the-counter (such as condoms or
spermacidal jellies and foams).
As discussed in Attorney General Opinion No. 91-93, the fact
of minority alone does not preclude medical care from being
authorized. In Kansas a mature minor may authorize medical or
surgical services by giving an informed consent to such
services. Assuming the minor is able to understand and
comprehend the nature of the service, the risks involved and
the probability of attaining the desired results in light of
attendant circumstances, a medical care provider is shielded
from liability which could otherwise accrue merely from the
proper performance of the service. Younts v. St. Frances
Hospital and School of Nursing, 205 Kan. 292 (1970).

Accordingly, medical or surgical care to a minor is authorized
when either a mature minor or the legal guardian of an
immature minor gives an informed consent to the service.
Medical care, including the provision of some contraceptive
prescriptions and devices, is unauthorized, thus subjecting
the medical care provider to potential liability, if such an
informed consent is not obtained.
As discussed in Attorney General Opinion No. 87-66, minors
have constitutional rights under the United States
constitution which preclude absolute prohibitions on family
planning services for minors. Thus, a state may not require
parental consent as an absolute condition for providing
contraceptive services to minors. However, as with adults,
health care providers should assure themselves that any
particular minor is sufficiently capable of making an informed
decision regarding contraceptive services.
As we stated in response to a similar question in 1989:
"In accordance with the constitutional
rights recognized in [Attorney General
Opinion No. 87-66], it does not appear
that a city or county could be subject to
any liability for providing contraceptive
services to minors that does not exist
with respect to providing such services to
adults." Informal Letter Opinion from
Attorney General Robert T. Stephan to
Thomas R. Powell, Wichita City Attorney,
and Henry H. Blase, Sedgwick County
Counselor, December 6, 1989.
Were the state providing contraceptives to minors the legal
conclusion would be the same.
Finally you point out that various provisions of Kansas law
protect minors from improper sexual activity, e.g. the
Kansas code for care of children, K.S.A. 38-1501 et seq.,andamendmentsthereto;rape,K.S.A.21-3502;indecent
liberties with a child, K.S.A. 1991 Supp. 21-3503; aggravated
indecent liberties with a child, K.S.A. 21-3504; incest,
K.S.A. 21-3602; aggravated incest, K.S.A. 21-3606. In light
of these protective statutes, you ask whether the state of
Kansas is permitted to distribute contraceptive devices to
unemancipated, immature minors for use in conjunction with the
act of sexual intercourse.
As pointed out above, since 1976 the state of Kansas has not
distributed contraceptive devices to any person under the age

of eighteen due to the prohibition of K.S.A. 23-501. Should
that statute be amended or repealed, the state might risk
liability by providing contraceptive devices to unemancipated,
immature minors in the absence of an informed consent from a
legal guardian. Such would be the case under general
principles of liability regardless of any protective laws
relating to children. However, the fact that the state has
enacted laws protective of children does not preclude the
federal, state or local government from providing
contraceptive devices to informed and consenting mature
minors without consent from the legal guardian or to immature
minors with parental consent.
Two distinct governmental interests may be served
simultaneously without jeopardizing the legality of either.
"[A]ll statutes should be so construed,
if possible, by a fair and reasonable
interpretation, as to give full force and
effect to each and all of them. In
conformity with this principle, it is not
to be assumed that one or the other or
related statutes is meaningless; rather,
such statutes will be so construed as to
give each a field of operation." 73
Am.Jur.2d Statutes, § 253 (1974).
One set of laws serves the governmental interest of protecting
children from sexual abuse. Another, such as Title X,
declares as one of its purposes "to assist in making
comprehensive voluntary family planning services readily
available to all persons desiring such services. . . ." Act
Dec. 24, 1970, P.L. 91-572, Sec. 2, 84 Stat. 1504. Each has
a field of operation, which, while related to minors, serves a
distinct governmental interest. The mere fact of apparent
inconsistency alone does not negate either governmental
interest nor does one interest prevent or preclude legislation
promoting another interest. See Gray v. Benson, 443
F.Supp. 1284 (1978).
In conclusion, in our opinion the portion of K.S.A. 23-501
which provides that the secretary of health and environment
(KDHE) shall establish and maintain family planning centers
is directory in nature, not mandatory. K.S.A. 23-501
prohibits the distribution of contraceptive information and
services to minors through family planning centers established
and maintained by KDHE. Such centers are not presently
maintained by KDHE specifically because of the prohibition
of K.S.A. 23-501. Should KDHE reestablish and maintain
family planning centers in the future, so long as K.S.A.

23-501 is in effect contraceptive services could not be
provided to minors at such centers.
A mature minor may authorize medical and surgical services,
including contraceptive services, by giving an informed
consent to such services. In the absence of an informed
consent medical care is unauthorized, thus subjecting the
medical care providers, whether public or private, to
potential liability.
Two distinct governmental interests may be served
simultaneously without jeopardizing the legality of either.
The mere fact of apparent inconsistency alone does not negate
either governmental interest nor does one interest prevent or
preclude legislation promoting another interest. Statutes
protecting minors from illicit sexual activity thus do not
preclude acceptance and distribution of Title X funds which
are conditioned upon provision of contraceptive services of
minors.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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