Reproductive Services

• Program Letter 22-2 (pdf)

Ronald S. Flagg, President
August 24, 2022

Summary

In Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), the U.S. Supreme Court held that the United States Constitution does not confer a right to abortion. This decision does not affect how LSC grant recipients may spend LSC funds. LSC funding has long been subject to statutory restrictions that prohibit grant recipients from engaging in abortion litigation and from spending LSC and private funds on non-litigation activities involving abortions. The purpose of this Program Letter is simply to remind grant recipients of the contours of these statutory restrictions. 

Restrictions

LSC grants are subject to statutory and regulatory restrictions that prohibit grant recipients from performing certain activities and from representing specific categories of clients. LSC has four categories of restrictions: Extended, Standard, Limited, and Other. 45 C.F.R. § 1610.4. The restrictions appear in 45 C.F.R. parts 1600 through 1644, in the LSC Act at42 U.S.C. §§ 2996-2996l, and in the sections of LSC's annual appropriation (Appropriations Restrictions) that incorporate the restrictions enacted in section 504 of Title V in Public Law 104-134, 122 Stat. 1321-50 (1996), as incorporated through Public Law 105-119, tit. V, § 502(a)(2), 111 Stat. 2440, 2510 (1998) and subject to modifications in other statutes. These restrictions apply to the use of LSC funds and in many situations to a grantee’s use of other funds, such as private funds, including charitable donations, and public funds.

Extended restrictions apply to all activities of LSC grantees using LSC funds, private funds, and federal, state, local or other public funds. Standard restrictions apply to all uses of LSC funds and most uses of private funds (e.g., private donations, United Way funds, private foundation grants). Standard restrictions do not apply to most uses of public funds from state and local governments or other federal grants. Limited restrictions do not apply to the use of non-LSC funds. Other restrictions apply to non-LSC funds as provided in the regulations referenced in 45 C.F.R. § 1610.4. Public funds are defined as funds:

Derived from a Federal, State, or local government or instrumentality of a government; or ... Derived from Interest on Lawyers' Trust Account (IOLTA or IOLA) programs established by State court rules or legislation that collect and distribute interest on lawyers' trust accounts. 45 C.F.R. § 1610.2(c)(2).

There are two statutory restrictions that concern reproductive services – specifically abortion. The first is an Extended restriction on abortion litigation. The Omnibus Consolidated Recissions and Appropriations Act of 1996 states that “None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any person or entity ... that participates in any litigation with respect to abortion.” Pub. L. 104-134, Tit. V, §504(a)(14). This language has been incorporated by reference in all subsequent LSC appropriations and applies to all LSC grant recipient activity, regardless of funding source.

The second is a Standard restriction on non-litigation activities involving abortions. 42 U.S.C. § 2996f(b)(8) states that:

No funds made available by the Corporation under this subchapter, either by grant or contract, may be used ... to provide legal assistance with respect to any proceeding or litigation which seeks to procure a nontherapeutic abortion or to compel any individual or institution to perform an abortion, or assist in the performance of an abortion, or provide facilities for the performance of an abortion, contrary to the religious beliefs or moral convictions of such individual or institution[.]

This restriction applies to LSC funds and private funds. However, the restriction does not apply to public funds expended for the purposes for which they were awarded. Id. § 2996i(c).

Neither restriction prohibits LSC grant recipients from referring applicants seeking legal assistance to secure abortion services to other legal aid or community organizations who can provide the requested assistance. LSC grant recipients regularly refer individuals to other organizations when they cannot or do not provide a certain service (e.g., non-citizens or those whose income exceeds the limits that the grant recipient sets). Where a grant recipient cannot engage in abortion litigation and cannot engage in non-litigation activities involving abortion with LSC or private funds, they may refer clients to other organizations that do.

For any questions regarding this issue, please contact Karly Satkowiak, Staff Attorney, satkowiakk@lsc.gov.