Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance
committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports
if they are used for other purposes.
Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (
Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and
attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.
SPONSOR Marquardt
HB 857
SHORT TITLE Statewide Teen Pregnancy Prevention
APPROPRIATION (dollars in thousands)
or Non-Rec
General Fund
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates HB 664
Relates to HB 193 (Teen Pregnancy Prevention & Parent Programs)
Relates to SB 160 (Teen Pregnancy Prevention Programs)
Relates to SB 591 (South Valley Male Involvement Program)
Relates to SB 592 (Statewide Teen Pregnancy Prevention Program)
LFC Files
Responses Received From
Department of Health (DOH)
Office of the Attorney General (AGO)
Human Services Department (HSD)
Health Policy Commission (HPC)
Public Education Department (PED)
Synopsis of Bill
House Bill 857 appropriates $450,000 from the general fund to the Department of Health as fol-
$200,000 to expand the Male Involvement Program to Southern and Eastern New Mexico
and to develop a youth alliance program component that could be linked to school-based
health center programs; and
$250,000 to develop and implement a model community-wide program that involves parents,
schools, businesses, faith-based organizations, health care providers and civic organizations
in providing support to youth in the areas of employment skills, healthy behaviors, sex edu-
House Bill 857 – Page
cation and academic achievement. The program shall be modeled after the Carrera pregnancy
prevention program that links school-based programs, parallel family systems, community
service and recreational activities.
The appropriation of $450,000 contained in this bill is a recurring expense to the general fund.
Any unexpended or unencumbered balance remaining at the end of fiscal year 2007 shall revert
to the general fund.
According to the Office of the Attorney General (AGO),
the inclusion of faith-based organiza-
tions raises serious and substantial federal and state constitutional questions. HB 857 implicates
(1) the Establishment Clause of the First Amendment and (2) N.M. Const. art. IV, § 31.
1. Establishment Clause of the First Amendment
A direct or indirect appropriation to faith-based entities implicates the First Amendment Estab-
lishment Clause. First Amendment Establishment Clause inquiries involve a three-prong test.
The governmental action (1) must have a secular legislative purpose, (2) the primary effect must
be one that neither advances nor inhibits religion, and (3) the action must not foster an excessive
government entanglement with religion. Lemon v. Kutzman, 403 U.S. 602, 512-13 (1971). De-
pending on the extent of the involvement of the faith based entity, HB 857 probably could be
challenged under all three aspects of the test.
(1) First, lack of secular legislative purpose will invalidate governmental action as a violation of
the Establishment Clause. The motivation behind the governmental action must be secular. It is
appropriate to ask what is the actual purpose of the legislation. While the legislative purpose of
providing aid to agencies that support teen pregnancy prevention is secular, HB 857 specifies
that the appropriation is to provide services through funding “faith-based” entities. Specific ap-
propriation to faith-based entities is contrary to the position that HB 857 has a secular legislative
(2) Second, the principle or primary effect of the government action must not be to endorse or
inhibit religion. By making an express statement that the appropriation is to fund "faith-based"
entities, it is hard to defend HB 857 as neutral legislation. The question is whether the govern-
mental action promotes religion. Symbolic benefit to religion is enough; it “need not be material
and tangible advancement.” Friedman v. Bd. of County Comm’rs of Bernalillo County, 781 F.
2d. 777, 781 (10th Cir. 1985). Because HB 857 specifies funding to DOH for faith-based enti-
ties, it is difficult to see how HB 857 does not promote religion.
(3) The third test is that the governmental action must not foster an excessive government entan-
glement with religion. Although the “excessive entanglement” test will be determined according
to the facts of the specific government action, programs that involve vulnerable populations are
usually highly regulated by state agencies. Public funding of these services typically involve out-
come results measures and other oversight responsibilities. The public funding source frequently
analyzes service delivery models to determine program effectiveness and cost benefits. The pro-
grams usually involve compliance with minimum program criteria for services, minimum quali-
House Bill 857 – Page
fications for service providers, and periodic fiscal and program audits. Budget and program over-
sight mechanisms are routine. It would be unusual for a government agency to fund a service in
such a sensitive area and not mandate minimum reporting requirements and possible on site vis-
its. Funding of faith-based programs to provide pregnancy prevention could very likely involve
government intrusion into all aspects of the funded programs sufficient for a court to find exces-
sive government entanglement in religion.
2. N.M. Const. art IV, § 31.
Art. IV, § 31 states in pertinent part: “No appropriation shall be made for charitable, educational
or other benevolent purposes to any person, corporation, association, institution or community,
not under the absolute control of the state....” Although the appropriation is identified as going to
DOH, a state agency, HB 857 expressly mandates that DOH fund “faith-based organizations”
related to teen pregnancy prevention. A valid constitutional challenge may be raised on the the-
ory that HB 857 attempts to do indirectly (make an appropriation to private entity not under the
absolute control of the state) that it cannot do directly. This indirect appropriation to private enti-
ties may be held by a court to be a violation of N.M. Const. art. IV, § 31.
The inclusion of faith-based organizations in the teen pregnancy prevention program does not
automatically result in a constitutional conflict. However, it does trigger the analysis and renders
the program vulnerable to a constitutional challenge.
According to the Department of Health (DOH),
The Carrera model is a comprehensive youth de-
velopment/sex education program designed for a cohort of young people from ages 11 to 18.
The cost is approximately $4,000 per young person per year (based on personal conversation
with Dr. Michael Carrera). The appropriation in HB 857 would serve 62 teens. This model has
been shown to delay initiation of sexual intercourse, increase resistance to sexual pressure and
increase use of dual methods of contraception with Hispanic and African American teens in New
York. Currently, there is no entity in New Mexico that has been trained and is qualified to im-
plement the Carrera model.
DOH notes that the South Valley Male Involvement Project, based out of the Alamosa Public
Health Office, has provided services to an estimated 6,000 males through local health offices,
seven public and charter schools, and community-based organizations. The Project provides edu-
cation, outreach and clinical services to improve services for men of all ages in the South Valley
and increase prevention of teen pregnancy, HIV/STD’s and violence. The South Valley Male
Involvement Project currently receives $125,000 per year in federal funds.
The Human Services Department (HSD) notes that HB 857 would bring in programs, resources,
education and support that are currently needed to educate teens in preventing and postponing
pregnancy for later years when they are better able to care for their children. While there is no
direct link to HSD, an improvement in child and teen health and a reduction in childhood preg-
nancies will result in cost savings for the Medicaid program.
Although this appropriation is not included in the Executive Budget Request, HB 857 does fall
within the DOH 2007 Strategic Plan, Program Area 1, Public Health, Objective 2, Reduce Teen
House Bill 857 – Page
According to DOH,
two full-time health educators implement the South Valley Male Involve-
ment Project. Two additional FTEs would be needed for each expansion community. An addi-
tional FTE would be needed to learn and implement the Carrera model. The cost would be
$60,000 each for salary and benefits and $11,500 each for start-up costs of computer, office fur-
niture and supplies, etc.