Rust v Sullivan Brief Amicus Curiae

    Nos. 89-1391, 89-1392

In the

Supreme Court uf tire United States
October Term, 1990

Dr . Irving Rust, on behalf of himself, his patients, and all others similarly 
situated, Dr. Melvin Padawer, on behalf of himself, his patients, and 
all others similarly situated, Medical and Health Research 
Association of New York City, Inc., Planned Parenthood of 
New York City, Inc., Planned Parenthood of Westchester/  
Rockland, and Health Services of Hudson County, New 
Jersey,

—v.—
Petitioners,

Dr . Louis Sullivan, or his successor, Secretary of the United States 
Department of Health and Human Services, Respondent

The State of New York, The City of New York,
The New York City Health & Hospitals Corp.,

Petitioners,

Dr . Louis Sullivan, or his successor, Secretary of the United States 
Department of Health and Human Services, Respondent.

ON w r it s  o f  c e r t io r a r i t o  t h e  u n it e d  states
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AM ICUS CURIAE  THE ASSOCIATION OF 
THE BAR OF THE CITY OF NEW YORK 

IN SUPPORT OF PETITIONERS

Conrad K. Harper 
Counsel o f Record 
Janice Goodman 
Diane S. Wilner 
The Association of the Bar 

of the City of New York 
42 West 44th Street 
New York, New York 10036 
(212) 382-6600

Deborah M. Buell 
Donna Costa 
Joseph Ravitch 
Cleary, Gottlieb, Steen 

& Hamilton 
One Liberty Plaza 
New York, New York 10006 
(212) 225-2000
Attorneys for Amicus Curiae 

The Association o f the Bar 
o f the City o f New York



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................ iii

INTEREST OF AMICUS.................... 1

SUMMARY OF ARGUMENT................... 5

ARGUMENT
THE REGULATIONS VIOLATE THE
FIRST AMENDMENT RIGHTS OF
HEALTH CARE PROFESSIONALS............  6
A. The Censorship Prescribed By 

The Regulations Violates The 
First Amendment's Prohibition 
Against Content-Based Speech 
Restrictions..................... 6
1. The Regulations Violate

The First Amendment By 
Prohibiting Discussion Of 
Abortion..................... 6

2. The Regulations Violate
The First Amendment By 
Requiring Title X Providers 
To Communicate An Anti- 
Abortion Message To Their 
Clients......................  9

i



3. The Speech Prohibited By 
The Regulations Warrants 
Particularly Strong 
Protection Because It 
Involves Communications 
Between Health Care 
Professionals And Their 
Clients..................... 16

B. By Restricting Communications 
Between Health Care 
Professionals And Their Clients,
The Regulations Represent An 
Unprecedented And Unauthorized 
Intrusion Of Federal Power Into
The Health Care Field..........  21

CONCLUSION...........................  28

ii



TABLE OF AUTHORITIES

Cases
Akron v. Akron Center for 
Reproductive Health Inc..
462 U.S. 416 (1983)..... 19, n.12,
Bigelow v. Virginia. 421 U.S. 809
(1975).............................
Cobbs v. Grant. 8 Cal.3d 229,
502 P .2d 1, 104 Cal. Rptr 505 
(1972)........................... 24
Consolidated Edison Co. v. Public 
Service Comm'n. 447 U.S. 530 
(1980).......................... 6,
Cornelius v. NAACP Legal Defense 
and Educational Fund Inc.. 473 U.S. 
530 (1980).........................
FCC v. League of Women Voters.
468 U.S. 364 (1984)................
Hammonds v. Aetna Cas. and 
Sur. Co.. 243 F. Supp. 793 
(N.D. Ohio 1965)................. 18
Harris v. McRae. 448 U.S. 297 
(1980).........................12-13
Hickman v. Tavlor. 329 U.S. 495 
(1947)............................18
Maher v. Roe. 448 U.S. 297
(1977)........................ 12-13

iii

Pages

20-21 

___7

n. 14

11-12

. . . 11 

10-11

n. 11 

, n. 9 

n. 11 

, n. 9



Massachusetts v. Secretary of 
Health and Human Services. 899 
F. 2d 53 (1st Cir. 1990)........... 9 n.7
New York v. Sullivan. 889 F.2d
401 (2d Cir. 1989)......... 8 n.6, 9 n.7
Perry v. Sindermann. 408 U.S. 593
(1972) ................................ 15
Planned Parenthood of Chicago 
Area v. Kempiners. 568 F. Supp.
1490 (N.D. 111. 1983)............. 7 n.5
Planned Parenthood of Cent.
Missouri v. Danforth. 428 U.S. 52
(1976)................................. 21
Police Dep't of Chicago v, Moslev.
408 U.S. 92 (1972)..................... 6
Roe v. Wade. 410 U.S. 113
(1973) .......................... . n. 12
Sherbert v. Verner. 374 U.S. 398 
(1963)................................ .
Thornburgh v. American College of 
Obstetricians and Gynecologists.
476 U.S. 747 (1986)................ 20-21
United States v. Larionoff. 431 U.S.
864 (1977).............................22
Webster v. Reproductive Health
Services. 109 S. Ct. 3040
(1989)........................ 12-13 , n. 9
Whalen v. Roe. 429 U.S. 589 (1977)_____20

IV



Woolev v. Mavnard. 430 U.S. 705
(1977)......................... 13-14
YWCA of Princeton v. Kualer. 342
F. Supp. 1048 (D.N.J. 1972),
aff'd. 493 F .2d 1402 (3d Cir.),
cert, denied 415 U.S. 989 (1974)...7 n.5

Statutes and Regulations
Criminal Justice Act, 18 U.S.C.
§ 3 006A (1985)...................17 n. 10
42 C.F.R. § 59..................2 n.3, 8

9, n. 7 
10 n. 8

53 Fed. Reg. 2 (1988).......... 2 n.3, 8
9, 10 n.8

N.Y. Pub. Health Law § 2805
(McKinney 1985 & Supp. 1988).... 24 n.14
Public Health Service 
Act, 42 U.S.C. § 300
(1982 & Supp. 1986)........ 2 n.3, 9 n.7

24 n .13
Pub. L. No. 91-572, reprinted in 
1970 U.S. Code Cong. & Admin.
News (84 stat. 1504) 1748......... 22-23

Legislative Materials
S.2108, 91st Cong., 2d Sess., 
reprinted in 116 Cong. Rec.
24093-94 (July 14, 1970)............. 23

v



Other Authorities
American College of Obstetricians 
and Gynecologists, Standards for 
Obstetric-Gvnecoloqical Services 
(6th ed. 1985)....................24 n. 15
American Medical Association,
Principles of Medical Ethics
(1986)............................ 24 n. 15
Congressman J. Dingell, Letter
to Otis Bowen (Oct. 14, 1987)....26 n.16
Constitution of the Association
of the Bar of the City of New
York.............................. l, n. 2
New York State Bar Association,
Lawyer's Code of Professional 
Responsibility.................... 25 n.15

vi



INTEREST OF AMICUS1 
The Association of the Bar of 

the City of New York (the "Association") 
is an organization of over 18,000 
lawyers. While most members practice in 
the New York City metropolitan area, the 
Association has members in nearly every 
state and in forty countries. Two 
important purposes of the Association, as 
set forth in its Constitution, are 
"promoting reforms in the law" and 
"facilitating and improving the 
administration of justice."2 The 
Association accordingly has devoted 
itself to supporting and defending 
reforms in the law in cases of

1 Letters of consent to the filing of 
this brief are being filed with the 
Clerk of the Court pursuant to Rule 
37.3 of the Rules of this Court.
Constitution of the Association of 
the Bar of the City of New York,
Art. II.

1



substantial public importance before the 
courts.

The Association is committed to 
the right of freedom of expression and 
believes that the challenged 
regulations3 abridge the free speech 
rights of both health care professionals 
and their clients. The Association views 
a restriction of this nature, promulgated 
in this manner, as an alarming precedent 
for professionals who provide any form of 
counsel, as well as for the general 
public. Indeed, many lawyers, because 
they are employed by government-funded

The challenged regulations, 42 C.F.R.
§ 59, 53 Fed. Reg. 2,922 et seq.
(1988) (hereinafter the 
"Regulations"), were adopted by the 
Secretary of the United States 
Department of Health and Human 
Services (hereinafter the "Secretary") 
pursuant to Title X of the Public 
Health Service Act, 42 U.S.C. §§ 300 
et sea. (1982 & Supp. 1986) 
(hereinafter "Title X").

2



entities, may fear the imposition of 
analogous restraints on their freedom 
fully to advise their clients as required 
by state law and ethical obligations.

The Association is equally 
committed to the principle of individual 
liberty, including the constitutional 
right of women to make reproductive 
decisions, in consultation with their 
physicians, free from governmental 
coercion. The Association believes that, 
by imposing content-based restrictions on 
health care professionals' advice to 
their clients, the Regulations 
effectively deprive women of information 
necessary to exercise their 
constitutional right of reproductive 
choice.

These issues are of great 
significance to the Association. The 
Association, through its Committees on

3



Civil Rights and Medicine and Law,4 
therefore urges that the order of the 
Court of Appeals of the Second Circuit 
upholding the Regulations be reversed.

Conrad K. Harper, President of the 
Association of the Bar of the City 
of New York; Janice Goodman, Chair 
of the Committee on Civil Rights; 
Diane S. Wilner, Chair of the 
Committee on Medicine and Law.

4



SUMMARY OF ARGUMENT
By censoring the information 

that Title X providers may give to their 
clients, the Regulations impermissibly 
violate the First Amendment rights of 
health care professionals by placing 
content-based restrictions on 
professional/client communications, 
thereby interfering with the confidential 
relationship between health care 
professionals and their clients. By 
employing its administrative rule-making 
power to promulgate the Regulations in 
contravention of both the intent of 
Congress and the First Amendment rights 
of professionals, the Secretary has 
exceeded the scope and purpose of Title X 
and has illegally intruded upon the 
health care field.

5



ARGUMENT
THE REGULATIONS VIOLATE THE 
FIRST AMENDMENT RIGHTS OF 
HEALTH CARE PROFESSIONALS

A. The Censorship Prescribed By The 
Regulations Violates The First 
Amendment's Prohibition Against 
Content-Based Speech Restrictions
1. The Regulations Violate The

First Amendment By Prohibiting 
Discussion Of Abortion________
The First Amendment expressly 

forbids the government from restricting 
expression because of "its message, its 
ideas, its subject matter, or its 
content." Police Dep't of Chicago v. 
Moslev. 408 U.S. 92, 95 (1972) (city 
ordinance prohibiting non-peaceful 
picketing found unconstitutional). See 
Consolidated Edison Co. v. Public Service 
Comm'n. 447 U.S. 530 (1980) (content- 
based regulation of speech is violative 
of the First Amendment). The 
dissemination of information about

6



abortion in particular is a protected 
form of speech. Bigelow v. Virginia. 421 
U.S. 809 (1975) (advertisement of 
abortion services is a form of expression 
protected by the First Amendment).5

It is not disputed that, under 
the Regulations, Title X providers are 
forbidden to speak about abortion. Even 
if a client asks for factual information 
about abortion, the professional may not 
provide such information or refer her to 
any source of abortion-related

See also YWCA of Princeton v. Kugler. 
342 F. Supp. 1048 (D.N.J. 1972) 
(statute forbidding a physician from 
prescribing or advising a woman to 
terminate her pregnancy chills First 
Amendment freedoms), aff'd. 493 F.2d 
1402 (3d Cir.), cert, denied. 415 U.S. 
989 (1974); Planned Parenthood of 
Chicago Area v. Kempiners. 568 F.
Supp. 1490, 1495 (N.D. 111. 1983) 
(statute denying funds to agencies 
providing abortion counseling and 
referral with private funds 
impermissibly penalizes free speech 
rights).

7



Instead the client mustinformation.6 
be told only "that the project does not 
consider abortion an appropriate method 
of family planning and therefore does not 
counsel or refer for abortion." 42 
C.F.R. § 59.8(b)(5), 53 Fed. Reg. at 
2,945. Thus, the Secretary has expressly 
censored all discussion of abortion by 
health care professionals receiving Title 
X funds. Such a prohibition, on its 
face, violates the First Amendment right

The Regulations' ban of the word 
"abortion" from the Title X provider's 
office arguably has the absurd effect 
of preventing health care 
professionals who receive Title X 
funds from providing their clients 
with a local telephone reference 
directory. New York v. Sullivan. 889 
F .2d 401, 415 (2d Cir. 1990)
(Cardamone, J., concurring); id. at 
416-17 (Kearse, J., dissenting in 
part).

8



of free speech of these health care 
professionals.7

2. The Regulations Violate The 
First Amendment By Requiring 
Title X Providers To 
Communicate An Anti-Abortion 
Message To Their Clients
The Regulations not only

prohibit health care professionals from
counseling women about abortion and
providing abortion referrals when
requested, 42 C.F.R. § 59.8(b)(5), 53
Fed. Reg. at 2,945, but compel anti­

Furthermore, it is not the case, as 
the court below implies, New York v. 
Sullivan. 889 F.2d at 412, that the 
Regulations apply only to the use of 
federal funds. No Title X project is 
completely funded by federal monies.
42 C.F.R. § 59.11(c). Title X 
providers are required to receive 
nonfederal funds equal to at least 10% 
of the amount provided through Title 
X. 42 U.S.C. § 300a-4. In fact, 
federal funds account for only 50% of 
the monies received by Title X 
projects. Massachusetts v. Secretary 
of Health and Human Services. 899 F.2d 
53, 59 (1st Cir. 1990). Thus, the 
Regulations restrict speech paid for 
by private as well as public monies.

9



Thus, in additionabortion referrals.8 
to violating the First Amendment's 
prohibition against content-based speech 
restrictions, the Regulations violate 
this prohibition by impermissibly 
regulating speech on the basis of an 
anti-abortion viewpoint.

Constitutional principles 
dictate that the allocation of public 
funds may not be motivated by the desire 
to suppress "unacceptable" lawful ideas 
while subsidizing "acceptable" ones. FCC 
v. League of Women Voters. 468 U.S. 364,

The Regulations direct that health 
care professionals provide pregnant 
women with information regarding 
prenatal medical care necessary to 
protect the health of the "mother" and 
"unborn child," even when the woman 
has announced her intention to obtain 
an abortion, 42 C.F.R. § 59.8(a)(2),
53 Fed. Reg. at 2945, and require that 
all pregnant women be provided with a 
list of providers of prenatal care who 
do not perform abortions. Id. at 
§ 59.8(a)(3), 53 Fed. Reg. at 2938.

10



383-84 (1984). Through Title X, the 
government funds the discussion of 
pregnancy and reproductive health between 
health care professionals and poor women. 
Having opened this forum for discussion, 
the government must maintain strict 
viewpoint neutrality and ensure that the 
information given therein is 
nondiscriminatory. Cornelius v. NAACP 
Legal Defense and Educational Fund. Inc.. 
473 U.S. 788, 800 (1985).

In FCC v. League of Women 
Voters. 468 U.S. 364, 383-84 (1984), this 
Court struck down a ban on editorializing 
by publicly-funded radio stations because 
the ban was "motivated by nothing more 
than a desire to curtail expression of a 
particular point of view on controversial 
issues of general interest . . . ." Id. 
(quoting Consolidated Edison Co. v.
Public Service Comm'n. 447 U.S. 530, 546

11



(1980) (Stevens, J., concurring)). 
Similarly, the Court should strike down 
the Secretary's attempt to prohibit 
communications which a health care 
professional might believe, in his or her 
professional judgment, is warranted by 
the client's circumstances, but which the 
Secretary feels furthers an 
"unacceptable" viewpoint.

The Regulations cannot be 
analogized to the government's failure to 
subsidize the performance of abortions. 
See Webster v. Reproductive Health 
Services. 109 S. Ct. 3040 (1989); Harris 
v. McRae. 448 U.S. 297 (1980); Maher v. 
Roe. 432 U.S. 464 (1977). Although, 
according to recent decisions of this 
Court, the government is free to choose 
which medical services it will fund, id.. 
the government cannot use its funding 
power to override the First Amendment

12



rights of health care professionals. The 
above—cited funding cases do not sanction 
any interference with the First Amendment 
rights of these professionals.9 The 
Regulations, however, do not merely deny 
funding for certain medical care, but 
also force health care professionals to 
communicate one-sided, government- 
prescribed information in contravention 
of their rights of free speech.

"[W]here the State's interest 
is to disseminate an ideology, no matter

Webster, Harris and Maher did not 
address the constitutionality of a 
funding scheme which regulated the 
speech of health care professionals. 
However, in Webster, four Justices 
noted that if the statute had been 
interpreted by the state to "prohibit 
publicly employed health professionals 
from giving specific medical advice to 
pregnant women," a serious 
constitutional issue would have been 
raised. 109 S. Ct. at 3060 (O'Connor, 
J., concurring); id. at 3068-69 n.l 
(Blackmun, Brennan and Marshall, JJ., 
concurring in part and dissenting in 
part).

13



how acceptable to some, such interest 
cannot outweigh an individual's First 
Amendment right to avoid becoming the 
courier for such a message." Woolev v. 
Maynard, 430 U.S. 705, 717 (1977). By- 
censoring the information that Title X 
providers may give to their clients, the 
Regulations impermissibly compel health 
care professionals —  viewed by their 
clients as the source of accurate, 
impartial medical information —  to act 
as the mouthpiece for the Secretary's 
disapproval of abortion.

The government created and 
funded Title X programs expressly to 
provide a forum for the dissemination of 
family planning information. The 
Regulations, however, impose a viewpoint 
bias on the communications between Title 
X providers and their clients by funding 
only those health care professionals who

14



undertake to express views acceptable to 
the government. The government "may not 
deny a benefit to a person on a basis 
that infringes his constitutionally 
protected interests —  especially, his 
interest in freedom of speech." Perrv v. 
Sindermann. 408 U.S. 593, 597 (1972).
See also Sherbert v. Verner. 374 U.S.
398, 405 (1962) ("conditions upon public 
benefits cannot be sustained if they so 
operate, whatever their purpose, as to 
inhibit or deter the exercise of First 
Amendment freedoms"). The Regulations 
impermissibly condition the receipt of a 
government benefit —  the Title X funds 
—  on the surrender of the constitutional 
right to free speech and thereby violate 
the First Amendment rights of health care 
professionals.

15



3. The Speech Prohibited By the 
Regulations Warrants 
Particularly Strong Protection 
Because It Involves 
Communications Between Health 
Care Professionals And Their 
Clients________________________
The violation of the First

Amendment's prohibition against content-
based speech restrictions is particularly
egregious in this case because the
Regulations interfere with confidential
communications between health care
professionals and their clients. The
Regulations not only abridge First
Amendment rights but substantially
interfere with the goals of the health
care profession. There is no greater
assault on the practice of sound health
care than a regulation which restricts
free and open communication of lawful
medical options between health care
professionals and their clients and

16



thereby effectively compels these 
professionals to violate their own 
professional standards.10

As in the attorney/client 
relationship, an essential aspect of the 
physician/patient relationship is the

The Regulations would be analogous 
to a government regulation 
prohibiting a criminal defense 
lawyer who is paid with funds 
appropriated by the Criminal Justice 
Act, 18 U.S.C. §§ 3006A, et sea. 
(1985), from counseling his client 
about his Fifth Amendment right to 
refuse to testify on the grounds 
that his testimony may tend to 
incriminate him. Certainly, for the 
government to condition a grant of 
funding to lawyers on the deliberate 
withholding of advice concerning a 
course of action which is not only 
lawful, but constitutionally 
protected, would not only violate 
the First Amendment rights of 
individual lawyers but also would 
constitute a dangerous assault on 
the integrity of the legal 
profession as a whole. However, 
this is precisely the kind of 
unacceptable restriction which the 
Regulations impose on health care 
professionals practicing in the area 
of family planning.

17



ability of the physician and patient to 
speak openly and freely with one another 
with the guarantee that the content of 
their communications will remain 
confidential.11 Under the cloak of 
confidentiality, a physician must provide 
appropriate counseling and seek informed 
consent for treatment.

The duty of health care 
professionals to their clients is no 
different when the information concerns 
abortion and its alternatives. Indeed, 
because of the particularly important

"The candor which [the promise of 
confidentiality] elicits is 
necessary to the effective pursuit 
of health; there can be no 
reticence, no reservation, no 
reluctance when patients discuss 
their problems with their doctors." 
Hammonds v. Aetna Cas. and Sur. Co.. 
243 F. Supp. 793, 801 (N.D. Ohio 
1965) ; cf. Hickman v. Tavlor. 329 
U.S. 495, 510 (1947) ("it is 
essential that a lawyer work with a 
certain degree of privacy, free from 
unnecessary intrusion").

18



nature of the speech involved in 
communications between health care 
professionals and their female clients 
involving women's exercise of their 
constitutional right of reproductive 
choice,12 this Court has consistently- 
struck down laws that require health care 
professionals to disseminate biased or 
incomplete information about abortion.
See Akron v. Akron Center for 
Reproductive Health Inc.. 462 U.S. 416, 
444-45 (1983) ("By insisting upon 
recitation of a lengthy and inflexible 
list of information [the statute] 
unreasonably has placed 'obstacles in the

See Roe v. Wade. 410 U.S. 113, 165 
(1973) (the abortion decision is 
"inherently, and primarily, a medical 
decision"); Akron v. Akron Center for 
Reproductive Health Inc.. 462 U.S. at 
443 ("It remains primarily the 
responsibility of the physician to 
ensure that appropriate information is 
conveyed to his patient, depending on 
her particular circumstances.").

19



path of the doctor upon whom [the woman 
is] entitled to rely for advice in 
connection with her decision.'") (citing 
Whalen v. Roe. 429 U.S. 589, 604 n.33 
(1977)); Thornburgh v. American College 
of Obstetricians and Gynecologists. 476 
U.S. 747, 762 (1986) (requirement that a 
physician provide a woman with a list of 
agencies offering alternatives to 
abortion is "nothing less than an 
outright attempt to wedge the 
[government's] message discouraging 
abortion into the privacy of the informed 
consent dialogue between the woman and 
her physician"). Like the statutes 
struck down in Akron and Thornburgh. the 
Regulations place an impermissible 
"straitjacket" on health care 
professionals and directly interfere with 
the delivery of information which is 
essential to the professional/client

20



relationship. Thornburgh. 476 U.S. at
762 (quoting Planned Parenthood v.
Danforth, 428 U.S. 52, 67 n.8 (1976)).
B. By Restricting Communications

Between Health Care Professionals 
And Their Clients, The Regulations 
Represent An Unprecedented And 
Unauthorized Intrusion Of Federal 
Power Into The Health Care Field

In passing Title X, Congress 
did not intend either to restrict the 
First Amendment rights of health care 
professionals or to use appropriated 
funds as a means of regulating the 
medical profession. Neither the statute 
nor its legislative history demonstrates 
any congressional intent to interfere in 
the communications between professional 
and client. Notwithstanding the lack of 
congressional intent and direction, the 
Secretary has promulgated unprecedented 
rules which, as described above, have the 
direct effect of regulating the

21



physician/patient relationship in the 
area of reproductive choice. The 
Regulations are therefore invalid not 
only because they transgress established 
First Amendment freedoms, but because 
they represent an unprecedented and 
unauthorized intrusion of federal power 
into the health care field.

Where an administrative agency 
has exceeded its authority by 
promulgating regulations that are 
inconsistent with congressional intent 
and "contrary to the manifest purposes of 
Congress in enacting [the statute]," the 
regulations are invalid. United States 
v. Larionoff. 431 U.S. 864, 873 (1977). 
Here, in adopting Title X, Congress 
sought, among other things, to provide 
"comprehensive, voluntary planning 
services to all persons in the United 
States," Pub. L. No. 91-572, reprinted in

22



1970 U.S. Code Cong. & Admin. News 
(84 Stat. 1504) 1748, so as to "guarantee 
the right of the family to freely 
determine the number and spacing of its 
children with the dictates of its 
individual conscience." Preamble to S. 
2108, 91st Cong., 2nd Sess., reprinted in 
Cong. Rec. 24093-94, (July 14, 1970).
The Regulation directly contravenes the 
congressional purpose by converting Title 
X into a platform for dictating the 
government's view of family planning and 
by restricting the individual's ability 
to "freely determine the number and 
spacing of its children."13

The statutory basis offered by the 
Secretary for the Regulations is 
Section 1008, which forbids funding 
any program "where abortion is a 
method of family planning." 42 
U.S.C. § 300a-6. This section clearly 
does not provide a basis for the 
restrictions on the communications 
between professionals and clients now 
at issue.

23



The scope of a health care 
professional's duty to communicate with 
his or her client has historically been 
determined through state law and 
professional self-regulation. Whether 
governed by state laws of informed 
consent,14 or the obligations of 
professional ethics,15 the health care

See, e.q.. N.Y. Pub. Health Law 
§ 2805-d (McKinney 1985 & Supp. 1988) 
(requiring health care providers to 
inform patients of all risks and 
benefits of a particular mode of 
treatment); Cobbs v. Grant. 8 Cal.3d 
229, 243, 502 P.2d 1, 10, 104 Cal.
Rptr 505, 514 (1972) (recognizing a 
"duty of reasonable disclosure of the 
available choices with respect to 
proposed therapy").
American Medical Association, 
Principles of Medical Ethics 8.07 
(1986) ("The physician's obligation is 
to present the medical facts 
accurately to the patient."); American 
College of Obstetricians and 
Gynecologists, Standards for 
Obstetric-Gynecological Services 76-77 
(6th ed. 1985) (requiring, in the 
event of unwanted pregnancy, that 
physician counsel patient about her 
options, including the option of

24



profession has always provided whatever 
information is required in order for the 
patient to choose freely the appropriate 
treatment. The law and custom that 
protect professional/client 
communications are areas where the 
federal government has never sought to 
intervene.

Given the history of local and 
self-regulation of health care 
professionals and the absence of any 
indication by Congress that it intended 
to break with that history, it is clear 
that Congress has not affirmatively 
chosen to regulate physician/patient 
communications. Instead, the Secretary

abortion); cf. New York State Bar 
Association, Lawyer's Code of 
Professional Responsibility. EC 7-8 
("A lawyer should exert his best 
efforts to insure that decisions of 
his client are made only after the 
client has been informed of relevant 
considerations.").

25



has abused his rule-making power by 
intruding on the physician/patient 
relationship and placing unconstitutional 
content-based and viewpoint-based 
restrictions on the most important form 
of speech employed by the health care 
profession in a manner which Congress 
neither mandated nor envisioned.16

The Regulations, promulgated 
under a statute designed to fund family 
planning services for impoverished women, 
represent an illegal, as well as unwise, 
extension of bureaucratic, rule-making 
power beyond its appropriate sphere. 
Allowing the Secretary to promulgate 
these regulations would set a remarkable

Congressman John Dingell, the sponsor 
of Section 1008, now suggests that the 
Secretary may have intentionally 
"misinterpret[ed] the congressional 
intent for Title X." Congressman J. 
Dingell, Letter to Otis Bowen (Oct.
14, 1987) at 2.

26



precedent for administrative agencies to 
exercise power not only to restrict 
protected speech but to dictate novel and 
uniform standards of care across an 
entire spectrum of professional activity 
which Congress has never before sought to 
occupy and certainly did not intend to 
invade in enacting Title X.

27



Conclusion
For the foregoing reasons, the

Association, through its Committees on
Civil Rights and Medicine and Law, urges
this Court to reverse the decision of the
Court of Appeals for the Second Circuit.

Respectfully submitted,* 
Conrad K. Harper 

Counsel Of Record 
Janice Goodman 
Diane S. Wilner 
THE ASSOCIATION OF THE BAR 
OF THE CITY OF NEW YORK 
42 West 44th Street 
New York, New York 10036 
(212) 382-6600
Deborah M. Buell
Donna Costa
Joseph Ravitch
CLEARY, GOTTLIEB, STEEN
& HAMILTON
One Liberty Plaza
New York, New York 10006
(212) 225-2000

Date: New York, New York
July 27, 1990

* Counsel wish to acknowledge the 
assistance of law clerks Taina 
Bien-Aime and Matthew Weil in the 
preparation of this brief.

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