Rust v Sullivan Brief Amici Curiae

    Nos. 89-1391 and 89-1392

In  T he

(ta rt nf %  InttTit States
October Term, 1990

Dr. Irving Rust, et al.,
Petitioners, v. ’

Louis W. Sullivan,
Secretary of Health and Human  Services, 

_________ Respondent,

The State of New  Y ork, et al.,
Petitioners, v. ’

Louis W. Sullivan,
Secretary of Health and Human  Services, 

_________ Respondent.

On Writs of Certiorari to the United States 
Court of Appeals for the Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF WOMEN 
LAWYERS AND THE NATIONAL CONFERENCE 

OF WOMEN’S BAR ASSOCIATIONS 
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

James F. Fitzpatrick 
Counsel of Record 

L. H ope O’Keeffe 
Laurence J. Freedman

A rnold & Porter 
1200 New Hampshire Ave., N.W. 
Washington, D.C. 20036 
(202) 872-6700
W alter Dellinger 
Duke La w  School

Attorneys for Amici Curiae

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



TABLE OF CONTENTS
Page

INTEREST OF AMICI CURIAE .................................  1

SUMMARY OF ARGUMENT ......... ....................... . 3

ARGUMENT    ........................................................  4
I. THE TITLE X REGULATIONS VIOLATE 

FIRST AMENDMENT FREEDOM OF 
SPEECH RIGHTS BY REGULATING 
SPEECH ON THE BASIS OF VIEWPOINT, 
PROHIBITING SPEECH BASED ON ITS 
SUBJECT MATTER, AND INTERFERING 
WITH DOCTOR-PATIENT COMMUNICA­
TIONS ................................................................... 4
A. The Title X Regulations Impose Viewpoint 

Based Restrictions on Protected Speech in 
Violation of the First Amendment___ ____  4
1. The Title X Regulations Discriminate 

Based on Viewpoint by Requiring Title X 
Doctors and Counselors To Communicate 
to Their Patients Prescribed Viewpoint- 
Specific Information and Prohibiting 
Them from Discussing Any Contrary
Viewpoint................................................... 5
a. Compelled Speech ...................   6
b. Prohibited Speech__ ________   7

2. The Title X Regulations Prohibit Title 
X Grantees from Communicating a Par­
ticular Viewpoint Through Public Infor­
mation, Political Expression, and Legal
Advocacy____ ____   9

B. The Title X Regulations Violate the First
Amendment by Prohibiting Speech Based on 
Subject Matter ................      11

C. The Title X Regulations Violate the First
Amendment by Interfering with Doctor- 
Patient Communications................................ 12



11

Page
1. The Regulations Violate the Physician’s

Right and Duty To Convey Information.. 13
2. The Regulations Violate the Patient’s

Right To Receive Medical Information.... 14
II. THE TITLE X REGULATIONS IMPOSE UN­

CONSTITUTIONAL CONDITIONS ON THE 
AVAILABILITY OF A GOVERNMENT SUB­
SIDY____________________   16
A. The Conditions Placed on the Title X Sub­

sidy Invidiously Discriminate in a Manner 
Designed To Suppress Dangerous Ideas____ 18

B. The Title X Regulations Impermissibly Re­
strict and Penalize Independently Funded 
Speech_______________    20
1. The Regulations’ Imposition of Content

Restrictions on Non-Federal Funds Un­
constitutionally Restricts Independent 
Spending_____________________   21

2. The Requirement of Artificially Strict
Separation Between Title X Projects and 
Other Activities Discourages Protected 
Speech............        23

CONCLUSION.................................................................  27

TABLE OF CONTENTS— Continued



iii

Cases:
TABLE OF AUTHORITIES

Page

Abood V. Detroit Bd. of Educ., 431 U.S. 209
(1977) .................. - .................... -........................  7

Arkansas Writers’ Project V. Ragland, 481 U.S.
221 (1987) .................................................- ....12,18,19

Austin V. Michigan Chamber of Commerce, 110
S. Ct. 1391 (1990)..............................................  16

Bigelow V. Virginia, 421 U.S. 809 (1975)..........11,13,14
Boos V. Barry, 485 U.S. 312 (1988) ......................  4
Brotherhood of R.R. Trainmen V. Virginia State

Bar, 377 U.S. 1 (1964) .................................-.....  10
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert, denied, 409 U.S. 1064 (1972) ....................  14
Carey V. Brown, 447 U.S. 455 (1980).....................  12
Carey V. Population Services Internat’l, 431 U.S.

678 (1977) .................................... .......................  8
City Council V. Taxpayers for Vincent, 466 U.S.

789 (1984) ______ ________________ _______ — 5
Consolidated Edison Co. V. Public Serv. Comm’n,

447 U.S. 530 (1980) ..................... -......................  5,12
FCC V. League of Women Voters, 468 U.S. 364

(1984) ........................... ....... .................19, 21, 23, 24, 26
FEC V. Massachusetts Citizens for Life, 479 U.S.

238 (1986)............................. _............-21, 23, 24, 25, 26
Griswold V. Connecticut, 381 U.S. 479 (1965)........ 12,14
Harris V. McRae, 448 U.S. 297 (1980) ......... - .... . 13,17
Kleindienst V. Mandel, 408 U.S. 753 (1972) ....... _ 14
Lyng V. United Automobile Workers, 485 U.S. 360

(1988) ...............- ..................................................  19, 20
Maher V. Roe, 432 U.S. 464 (1977).......................  13,17
Martin V. Struthers, 319 U.S. 141 (1943) ----------  10
Massachusetts V. Secretary of HHS, 899 F.2d 53

(1st Cir. 1990) (en banc) .................5,12,13, 20, 22, 25
Metromedia, Inc. V. San Diego, 453 U.S. 490

(1981) ...................................................................  10,12
NAACP v. Button, 371 U.S. 415 (1963) ............... 11
New York V. Sullivan, 889 F.2d 401 (2d Cir. 1989).. 6, 8, 9,

15,23
Perry V. Sindermann, 408 U.S. 593 (1972)...........  16,17



iv

Planned Parenthood V. Arizona, 718 F.2d 938 (9th 
Cir. 1983), 789 F.2d 1348 (9th Cir.) (affirming
remand), aff’d mem., 479 U.S. 925 (1986) .........  13, 21

Planned Parenthood Fed’n V. Bowen, 680 F. Supp.
1465 (D. Colo. 1988) ................ .......... ...6,13,15,17, 23

Planned Parenthood Ass’n V. Fitzpatrick, 401 
F. Supp. 554 (E.D. Pa. 1975), aff’d mem. sub 
nom. Franklin v. Fitzpatrick, 428 U.S. 901
(1976)...................................................................  15

Poe V. VUman, 367 U.S. 497 (1961).......................  12
Police Dep’t V. Mosley, 408 U.S. 92 (1972)............. 4,11
Regan V. Taxation With Representation, 461 U.S.

540 (1983).................................. .4, 18,19, 23, 24, 25, 26
Regan V. Time, Inc., 468 U.S. 641 (1984) ....... .....  11
Reproductive Health Servs. V. Webster, 851 F.2d 

1071 (8th Cir. 1988), rev’d, 109 S. Ct. 3040
(1989) ........   12

Riley V. National Fed’n of Blind, 487 U.S. 781
(1988) ................................................................... 7, 8

Sherbert V. Verner, 374 U.S. 398 (1963) ____ ____ 16,17
Smith V. Cote, 128 N.H. 231, 513 A.2d 341 (1986).. 14
Speiser v. Randall, 357 U.S. 513 (1958) .............. . 16,17
Texas V. Johnson, 109 S. Ct. 2533 (1989) ......... .....  13
United States V. Eichman, 110 S. Ct. 2404 (1990).. 4
United States V. Robel, 389 U.S. 258 (1967)____  17
United Transp. Union v. Michigan Bar, 401 U.S.

576 (1971)............................................................  10
Valley Family Planning V. North Dakota, 489 F.

Supp. 238 (D.N.D. 1980), aff’d, 661 F.2d 99
(8th Cir. 1981) ...........................................   21

Virginia Pharmacy Bd. V. Virginia Citizens Con­
sumer Council, 425 U.S. 748 (1976) .......... ........  14,15

Webster V. Reproductive Health Servs., 109 S. Ct.
3040 (1989) ..................   17

West Virginia Ass’n of Community Health Cen­
ters V. Sullivan,------F. Supp.------- , 1990 West-
law 66552 (S.D. W. Va. March 1, 1990).......5, 21, 22, 23

TABLE OF AUTHORITIES— Continued
Page



V

West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624 (1943) ............................... ................ 7,13

Wooley V. Maynard, 430 U.S. 705 (1977) ............... 7

Administrative and Executive Materials:
52 Fed. Reg. 33,211 (1987)......... .............................  10
53 Fed. Reg. 2922-46 (1988).................... .............10,15, 26
42 C.F.R. § 59.2 (1988)............................................  22

§59.8....................................................... -  6,8
§59.8 ( a ) (1 ) . ...........................................  8
§ 59.8(a) (2 ) ............................................  7,14
§ 59.8(a) (3 ) ............................................  7,8
§ 59.8(b) (5 ) ............................................  7,9
§59.9........................................................  25
§ 59.10.....      25
§59.10 (a ) (1 ) ........................................... 9
§ 59.10 (a) (2) ......    9
§59.10 (a) (3) ..........................................  9
§59.10 (a) (4)...........................................  10
§ 59.10(a) (5 ) ........................................... 10

Periodicals:
Rosenthal, Conditional Spending and the Constitu­

tion, 39 Stan. L. Rev. 1103 (1987)....   17
Sullivan, Unconstitutional Conditions, 102 Harv.

L. Rev. 1415 (1989) .........................................  17

Miscellaneous:
U.S. Dep’t of Health and Human Services, Pro­

gram Guidelines for Project Grants for Family
Planning Services (1981) .................................  7

Current Opinions of the Council on Ethical and
Judicial Affairs of the AMA § 8.07 (1986)....... 14

N.Y. Public Health Law § 2805-d(l) (McKinney-
1985) .....................................................................  14

TABLE OF AUTHORITIES— Continued
Page



In The

^uprrmr (Court of %  luttrfr Stairs
October Term, 1990

No. 89-1391
Dr. Irving Rust, et al.,

Petitioners, v. ’
Louis W. Sullivan,

Secretary of Health and Hum an  Services, 
_________ Respondent,

No. 89-1392
The State of N ew  Y ork, et al,

Petitioners, v. ’
Louis W. Sullivan,

Secretary of Health and Hum an  Services,
Respondent.

On Writs of Certiorari to the United States 
Court of Appeals for the Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF WOMEN 
LAWYERS AND THE NATIONAL CONFERENCE 

OF WOMEN’S BAR ASSOCIATIONS 
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

With the consent of the parties, the National Associa­
tion of Women Lawyers and the National Conference of 
Women’s Bar Associations respectfully submit this brief 
as amici curiae in support of Petitioners.

INTEREST OF AMICI CURIAE
The National Association of Women Lawyers 

(“ NAWL” ), founded in 1890, is a voluntary national 
membership organization of the legal profession. Its



2

members include attorneys from every state and the Dis­
trict of Columbia, including prosecutors, public defend­
ers, private attorneys, trial and appellate judges from 
the state and federal courts, legislators, law professors, 
and law students. NAWL has official representation in 
various national and international organizations and is 
an affiliate of the American Bar Association. As an 
organization made up primarily of women, NAWL has 
and continues to be a supporter of women’s rights. As 
an organization of attorneys, NAWL supports the integ­
rity of the justice system.

The National Conference of Women’s Bar Associations 
(“ NCWBA” ) is a nonprofit professional organization of 
state, regional, and local women’s bar associations and 
includes associations in 37 states and the District of 
Columbia. The NCWBA was formed in 1981 to promote 
the highest standards of the legal profession, to advance 
justice, to promote and protect the interests of women, 
and to pursue these goals through appropriate legal, 
social, and political action.

The interest of the NAWL and the NCWBA in filing 
this brief as amici curiae is, above all, the preservation of 
First Amendment speech rights. By manipulating speech 
of Title X organizations to dictate what the government 
declares shall be orthodox, the regulations at issue in this 
case flagrantly contravene the spirit and letter of the 
First Amendment. As members of the legal profession, 
we have a special interest in protecting individual rights 
and liberties guaranteed by the First Amendment from 
the shifting tides of the political process.

The Title X restrictions upon free speech occur in a 
context that heightens the NAWL’s and NCWBA’s con­
cerns. We are committed to protecting zealously the rela­
tionship of trust, consistent with professional obligations, 
between the learned professional and the client, who relies 
upon the professional’s knowledge, expertise, and candor ; 
these regulations threaten the integrity of this profes­
sional-client relationship. These concerns are amplified



3

by the disproportionate harm that the speech restrictions 
would cause to those persons who lack the funds to pay 
for private care; it is imperative that professionals pro­
viding direct professional services to indigent clients 
maintain their independence from political intervention.

SUMMARY OF ARGUMENT
The argument of amici supports the decision of the 

First Circuit sitting en banc in Massachusetts v. Secre­
tary of HHS that the Title X regulations violate peti­
tioners’ First Amendment free speech rights. Amici ar­
gue that the Second Circuit concluded erroneously that 
these regulations are constitutionally sound.

Part I demonstrates that the Title X regulations chal­
lenged here are premised upon viewpoint and subject- 
matter discrimination in violation of the First Amend­
ment. The regulations designedly distort physician- 
patient communications by dictating what must be said 
and what may not be said to a pregnant woman who turns 
to a partially Title X-funded facility for medical advice, 
regardless of her needs or interests and regardless of the 
physician’s professional obligations. Moreover, they stifle 
the voice of one side of vital public debate on the abor­
tion issue, directly gagging public support of access to 
abortion while leaving contrary, anti-abortion speech un­
fettered.

Part II refutes any contention that the regulations are 
a mere refusal to subsidize constitutionally protected 
speech rather than an unconstitutional condition. Part 
IIA shows that the regulations condition the right to re­
ceive Title X funds on an invidiously discriminatory, 
viewpoint-based requirement that every organization ac­
cepting such funds relinquish its right to core protected 
expression. Under controlling law, such a discriminatory 
condition could not stand even if it affected only federally 
funded activities.

Part IIB demonstrates that this unconstitutional con­
dition extends far beyond the imposition of government-



4

endorsed medical doctrines on federally financed activi­
ties. The entire Title X project is required to adhere to 
the state-dictated position, no matter how small a pro­
portion of the facility’s funding derives from the govern­
ment. Further, onerous requirements of separation be­
tween the Title X facility and any entity expressing the 
disfavored viewpoint deliberately block the participating 
organization’s ability to use private channels to express 
its views. Such impositions upon independently funded 
protected speech are blatantly unconstitutional, and thus 
must be struck down.

ARGUMENT
I. THE TITLE X REGULATIONS VIOLATE FIRST 

AMENDMENT FREEDOM OF SPEECH RIGHTS 
BY REGULATING SPEECH ON THE BASIS OF 
VIEWPOINT, PROHIBITING SPEECH BASED ON 
ITS SUBJECT MATTER, AND INTERFERING 
WITH DOCTOR-PATIENT COMMUNICATIONS
A. The Title X Regulations Impose Viewpoint-Based 

Restrictions on Protected Speech in Violation of 
the First Amendment

“ If there is a bedrock principle underlying the First 
Amendment, it is that the government may not prohibit 
the expression of an idea simply because society finds the 
idea itself offensive or disagreeable.”  United States v. 
Eichman, 110 S. Ct. 2404, 2410 (1990) (quoting Texas 
v. Johnson, 109 S. Ct. 2533, 2544 (1989)). As the Su­
preme Court has repeatedly emphasized, the First Amend­
ment forbids governmental efforts to suppress “ dangerous 
ideas”  by imposing viewpoint-specific speech restric­
tions.1 See Regan v. Taxation With Representation, 461

1 For example, this Court invalidated a statute prohibiting- cer­
tain protests near embassies because the restriction “depends en­
tirely upon whether their picket signs are critical of the foreign 
government or not.”  Boos V. Barry, 485 U.S. 312, 318-19 (1988) 
(O’Connor, J., Joined by Stevens, J., and Scalia, J.) ; see Police 
Dep’t V. Mosley, 408 U.S. 92, 95 (1972) (“ [A]bove all else the



5

U.S. 540, 548 (1983) (citing Cammarano V. United 
States, 358 U.S. 498, 513 (1959)). As Justice Stevens 
stated, “ a regulation of speech that is motivated by noth­
ing more than a desire to curtail expression of a particu­
lar point of view on controversial issues . . .  is the purest 
example of a ‘law . . . abridging the freedom of speech.’ ” 
Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 
530, 546 (1980) (Stevens, J., concurring). Accord City 
Council v. Taxpayers for Vincent, 466 U.S. 789, 804 
(1984).

The regulations impose glaring and unconstitutional 
viewpoint restrictions that control not only the communi­
cation between health care professionals and their clients 
in programs partially funded by Title X,2 but also speech 
between organizations partially funded by Title X and 
the public.

1. The Title X Regulations Discriminate Based on 
Viewpoint by Requiring Title X Doctors and 
Counselors To Communicate to Their Patients 
Prescribed Viewpoint-Specific Information and 
Prohibiting Them from Discussing Any Contrary 
Viewpoint

A review of the Title X regulations at issue here con­
firms the First Circuit’s determination that the regula­
tions constitute a pure example of speech regulation that 
is “both viewpoint and content-based in violation of the 
first amendment.” Massachusetts v. Secretary of HHS, 
899 F.2d 53, 75 (1st Cir. 1990) (en banc).3 No fair

First Amendment means that government has no power to restrict 
expression because of its message, its ideas, its subject matter, or 
its content.” ) .

2 Throughout the brief, employees in family planning programs 
that receive any Title X  funds are referred to as “participating” 
health care professionals.

3 In addition to the First Circuit, every other federal court that 
has reviewed these regulations, except the courts below, has deter­
mined that the Title X  regulations are viewpoint-discriminatory. 
West Virginia Ass’n of Community Health Centers v. Sullivan,



6

reading could construe these regulations as viewpoint 
neutral.4 It is simply impossible to conclude that “ the 
regulations in question do not facially discriminate on 
the basis of the viewpoint of the speech involved.”  New 
York v. Sullivan, 889 F.2d 401, 414 (2d Cir. 1989). The 
critical fact is that the Second Circuit majority, over a 
sharp dissent, found it necessary to mischaraeterize the 
regulations in order to sustain them. The Title X regu­
lations restrict speech not only by compelling participat­
ing health care professionals to communicate one view­
point, but also by prohibiting them from communicating 
to their clients information that expresses the other view­
point.

a. Compelled Speech

The Title X regulations command and instruct par­
ticipating health care professionals to inform and refer 
pregnant clients in the following manner.

First, participating health care professionals are in­
structed to inform a pregnant client-—irrespective of her 
medical condition, the circumstances of her pregnancy, or 
her request for information— that abortion is not an “ ap­
propriate” response to her medical condition. Indeed, 
these professionals are instructed to state “ that the proj­

-------  F. Supp. ------- , 1990 Westlaw 66552 (S.D.W. Va. March 1,
1990); Planned Parenthood Fed’n v. Bowen, 680 F. Supp. 1465, 
1475 (D. Colo. 1988).

4 Contrary to the Respondent’s position, this is not a situation in 
which the government has decided simply to fund only preventive 
family planning services and to avoid any involvement with pa­
tients who seek assistance with a pregnancy. Respondent’s Brief 
on Petition for W rit of Certiorari at 5, New York v. Sullivan, 
(Nos. 89-1391, 89-1392) (filed May 1990). Title X  grantees are 
not instructed simply to inform pregnant clients that the program 
does not provide information or referrals for pregnant patients, as 
Respondent suggests. Rather, the regulations specifically direct 
Title X  grantees to undertake to provide counseling and informa­
tion to women who are pregnant, but to do so in a manner that 
restricts and distorts the information conveyed to those patients. 
See 42 C.F.R. § 59.8 (1988).



7

ect can help her to obtain prenatal care” and will provide 
her with a list of prenatal care providers. 42 C.F.R. 
§ 59.8(b) (5) (1988) (example of acceptable response to 
inquiry regarding abortion information).

Second, participating doctors and counselors must pro­
vide their pregnant clients with “ information necessary 
to protect the health of mother and unborn child,”  id. 
§ 59.8(a) (2) (1988) (emphasis added), even if a client 
has indicated unequivocally her intent to terminate her 
pregnancy.

Third, participating professionals must give every 
pregnant client of their facility “ a list of available pro­
viders that promote the welfare of mother and unborn 
child.” Id. These professionals cannot exclude from this 
list any health care providers that “ do not provide abor­
tions.”  5 Id. § 59.8(a) (3).

Compelled speech, such as these regulations command, 
plainly violates the First Amendment. “ If there is any 
fixed star in our constitutional constellation, it is that no 
official, high or petty, can prescribe what shall be ortho­
dox in . . . matters of opinion or force citizens to confess 
by word or act their faith therein.” West Virginia State 
Bd. of Educ. V. Barnette, 319 U.S. 624, 642 (1943). See 
Riley v. National Fed’n of Blind, 487 U.S. 781, 795 
(1988) ; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 
234-35 (1977) ; Wooley v. Maynard, 430 U.S. 705, 714 
(1977).

b. Prohibited Speech
The regulations compound the constitutional infirmity 

triggered by the forced speech by expressly prohibiting 5

5 The participating program must include on the referral list 
every prenatal health care provider that does not principally pro­
vide abortions. Compare U.S. Dep’t of Health and Human Services, 
Program Guidelines for Project Grants for Family Planning Serv­
ices § 7.4 (1981) (granting programs discretion to select referral 
providers).



8

health professionals from communicating any information 
that expresses the contrary viewpoint. “ [T]he First 
Amendment guarantees ‘freedom of speech/ a term neces­
sarily comprising the decision of both what to say and 
what not to say.” Riley, 487 U.S. at 797 (emphasis in 
original).

First, a participating professional cannot refer a client 
who seeks to terminate a pregnancy, irrespective of her 
medical circumstances,8 to any other health care pro­
vider “whose principal business is the provision of abor­
tions.”  42 C.F.R. § 59.8(a) (3). Indeed, a participating 
organization may not even supply pregnant clients with 
a copy of the Yellow Pages. See New York v. Sullivan, 
889 F.2dat415 (Cardamone, J., concurring).

Second, participating professionals “may not provide 
counseling” concerning abortion to any pregnant client. 
42 C.F.R. § 59.8(a) (1).

Third, the regulations prohibit participating profes­
sionals from “ encouraging or promoting abortion,” even 
with respect to pregnancy posing severe medical risks to 
the patient. 42 C.F.R. § 59.8(a) (3).

These blatantly viewpoint-specific prohibitions flatly 
contravene this Court’s instruction in Carey v. Population 
Services Internat’l, 431 U.S. 678, 700 (1977), that the 
government “may not ‘completely suppress the dissemina­
tion of concededly truthful information about entirely 
lawful activity’ ” (quoting Virginia Pharmacy Bd. v. 
Virginia Citizens Consumer Council, 425 U.S. 748, 773 
(1976)).

Thus, a straightforward review of the regulations 
themselves compels the conclusion that, contrary to the 
premise of the appellate court, the Title X regulations 
are undeniably viewpoint-restrictive. The majority’s 
statement that “ [a] rgumentation pro or con as to the 
advisability of an abortion for a particular woman is 6 *

6 The regulations except a medical “emergency.” 42 C.F.R.
§ 59.8.



9

neither required nor authorized,”  New York v. Sullivan, 
889 F.2d at 414, simply cannot be squared with the regu­
lations as a whole, nor with the regulations’ explicit 
instruction that doctors inform a pregnant woman that 
“ the project does not consider abortion an appropriate 
method of family planning.” 42 C.F.R. § 59.8(b) (5).

2. The Title X Regulations Prohibit Title X Grant­
ees from Communicating a Particular Viewpoint 
Through Public Information, Political Expres­
sion, and Legal Advocacy

The constitutional harm of outright censorship of 
doctor-patient communications is aggravated by the un­
constitutional restraints imposed on participating family 
planning programs. The Title X regulations forbid 
grantees from expressing a particular viewpoint in the 
arenas of public information, political expression, and 
legal advocacy, types of speech that merit stringent First 
Amendment protection, while leaving expression of oppos­
ing viewpoints unrestricted.

First, the regulations prohibit participating organiza­
tions from “lobbying for the passage of legislation to in­
crease in any way the availability of abortion.”  42 
C.F.R. § 59.10(a) (1). Yet, nothing in these regulations 
forbids Title X grantees from lobbying to decrease the 
availability of abortion.

Second, the regulations prohibit participating organi­
zations from “  [pjroviding speakers to promote the use 
of abortion.” 42 C.F.R. § 59.10 (a) (2). The regulations 
do not, however, prohibit Title X grantees from provid­
ing speakers who aim to dissuade pregnant clients from 
seeking an abortion.

Third, the regulations prohibit participating organiza­
tions from “ [playing dues to any group that as a 
significant part of its activities advocates abortion.” 42 
C.F.R. § 59.10(a) (3). Title X grantees can, however, 
support groups that oppose abortion.



10

Fourth, the regulations prohibit participating organi­
zations from “disseminating . . . materials . . . advoca­
ting abortion.” 42 C.F.R. § 59.10 (a) (5). Here again, 
however, Title X grantees can disseminate informational 
materials aimed at promoting childbirth.1

Finally, the regulations prohibit participating organi­
zations from “ [u] sing legal action to make abortion 
available in any way.”  42 C.F.R. § 59.10(a) (4). Yet, 
Title X grantees are allowed to participate in legal ac­
tivities the aim of which is to minimize the availability 
of abortion.

Subpart 59.10 is a blatant attempt to shrink the speech 
rights of partially Title X-funded organizations. Each 
of these naked viewpoint restrictions clearly violates the 
First Amendment prohibition on viewpoint restrictions 
upon speech. See Metromedia, Inc. v. San Diego, 453 
U.S. 490, 505 (1981) (The First Amendment prohibits 
the suppression of “ the dissemination of truthful infor­
mation about an entirely lawful activity merely because 
[the government] is fearful of that information’s effect 
upon its disseminators and its recipients.” ) ; see also 
Martin v. Struthers, 319 U.S. 141, 146-47 (1943). Their 
combined effect is to gag Title X grantees who wish to 
express supposedly “dangerous ideas.”

Amici are particularly alarmed by the viewpoint- 
based restriction on partially Title X-funded organiza­
tions’ right to take legal action. “ The right to petition 
the courts cannot be so handicapped.” Brotherhood of 
R.R. Trainmen v. Virginia State Bar, 377 U.S. 1, 7 
(1964). See United Transp. Union v. Michigan Bar, 7

7 These prohibitions, as interpreted by HHS, would force health 
care providers with Title X  funds from maintaining- libraries and 
written materials with indisputably neutral and accurate informa­
tion regarding abortion, based on the government view that any 
information about abortion encourages it. See 53 Fed. Reg. 2922, 
2923, 2933, 2943 (1988) (final regulations); 52 Fed. Reg. 33,211 
(1987) (proposed regulations).



11

401 U.S. 576, 580-81 (1971); NAACP V. Button, 371 
U.S. 415, 429 (1963). This restriction impedes access 
to the courts and effective advocacy within the judicial 
system. Indeed, if the regulations were in effect at this 
moment, no health care provider receiving any Title X 
funds would be able to participate in this judicial pro­
ceeding.

B. The Title X Regulations Violate the First Amend­
ment by Prohibiting Speech Based on Subject 
Matter

The Title X regulations are blatant viewpoint-specific 
restrictions, contrary to the cursory— and erroneous— 
Second Circuit statements suggesting otherwise. But be­
yond that, the Title X regulations violate the First 
Amendment by singling out and proscribing speech on 
the highly controversial and politicized subject of abor­
tion.

There is no question that prohibitions of speech based 
on subject matter, like restrictions based on viewpoint, 
violate the First Amendment guaranty of freedom of 
speech.8 For example, in Regan v. Time, Inc., 468 U.S. 
641, 648-49 (1984), this Court admonished that “ [re g u ­
lations which permit the government to discriminate on 
the basis of the content of the message cannot be toler­
ated under the First Amendment.”  See also Police Dep’t

8 Suppression of speech regarding a particular subject will in 
some instances constitute viewpoint discrimination. In this case, a 
Title X  patient who learns she is pregnant must choose between 
one of two inevitable alternatives— continued pregnancy and abor­
tion. In this context, a subject-matter restriction (foreclosure of 
all abortion-related speech) is equivalent to a viewpoint-based re­
striction. However labeled, the regulations violate the First 
Amendment because they silence all speech that expresses the view 
that abortion isi an option— and perhaps a medically advisable 
option— for a Title X  patient. See Bigelow V. Virginia, 421 U.S. 
809, 826 (1975) (citing NAACP v. Button, 371 U.S. at 429 (re­
strictions on speech are strictly scrutinized regardless of their 
“particular label” ) ).



12

V. Mosley, 408 U.S. at 95. As the First Circuit stated, 
“ [i]t  is by now black letter law that [a subject-matter] 
restriction is a violation of the first amendment.”  Massa­
chusetts v. Secretary of HHS, 899 F.2d at 75.

This Court reiterated its intolerance for subject- 
matter prohibitions on speech in Arkansas Writers’ 
Project v. Ragland, 481 U.S. 221, 230 (1987). In that 
case, the Court struck down a tax scheme based on 
magazines’ subject matter, emphasizing that “ the basis 
on which Arkansas differentiates between magazines is 
particularly repugnant to First Amendment principles: 
a magazine’s tax status depends entirely on its content.”  
Id. at 229 (emphasis in original). See also Consolidated 
Edison Co. v. Public Service Comm’n, 447 U.S. 530, 537 
(1980) ( “ The First Amendment’s hostility to [restric­
tions on speech] extends not only to restrictions on cer­
tain viewpoints, but also to prohibition of . . . discussion 
of an entire topic.” ) ; accord Metromedia, Inc. v. San 
Diego, 453 U.S. at 515; Carey v. Brown, 447 U.S. 455, 
460-61 (1980).

Thus, even if the Second Circuit were correct in its 
assertion that the Title X regulations prohibit discus­
sions between participating professionals and patients 
about the entire topic of abortion, that is a subject- 
matter speech restriction in violation of the First 
Amendment.

C. The Title X Regulations Violate the First Amend­
ment by Interfering with Doctor-Patient Communi­
cations

The federal courts have consistently reaffirmed that 
the “ right of the doctor to advise his patients according 
to his best lights seems so obviously within First Amend­
ment, rights as to need no extended discussion.” Poe v. 
Ullman, 367 U.S. 497, 513 (1961) (Douglas, J.) (dis­
senting from dismissal). See Griswold v. Connecticut, 
381 U.S. 479, 482 (1965) ; Massachusetts v. Secretary 
of HHS, 899 F.2d at 73; Reproductive Health Servs. v.



13

Webster, 851 F.2d 1071, 1078 (8th Cir. 1988), issue 
declared moot on appeal, 109 S. Ct. 3040 (1989); Planned 
Parenthood v. Arizona, 718 F.2d 938, 944 (9th Cir. 
1983), 789 F.2d 1348 (9th Cir.) (affirming remand), 
aff’d mem., 479 U.S. 925 (1986); see also Bigelow v. 
Virginia, 421 U.S. at 822 (recognizing First Amendment 
right to communicate information regarding medical serv­
ices). This is especially true where, as here, the speech 
is necessary to effectuate the constitutional right to pri­
vacy.9 Massachusetts v. Secretary of HHS, 899 F.2d at 
73; see Bigelow v. Virginia, 421 U.S. at 822.

1. The Regulations Violate the Physician’s Right 
and Duty To Convey Information

From a professional’s perspective, the basic vice of the 
challenged regulations is that they obstruct a physician’s 
First Amendment freedom, and professional responsibil­
ity, to convey essential medical information to a patient. 
See Planned Parenthood Fed’n v. Bowen, 680 F. Supp at 
1477.

Participating doctors are strictly forbidden from 
counseling patients about abortion, informing a preg­
nant woman about the availability of abortion, or even 
telling her where she can receive full abortion-related 
information. This prohibition applies irrespective of the 
client’s medical condition (e.g., drug addiction, AIDS, 
diabetes), the circumstances of pregnancy {e.g., rape, 
incest), or the patient’s direct requests for information.

9 Although it has been held that the government has a legitimate 
interest in favoring childbirth over abortion, and that this interest 
is sufficient to sustain a decision not to provide governmental 
funding for abortions, see Harris v. McRae, 448 U.S. 297 (1980) and 
Maher v. Roe, 432 U.S. 464 (1977), this Court has never suggested 
that the government’s interest would constitute a compelling inter­
est that would allow the direct abrogation of First Amendment 
rights. To hold otherwise would be tantamount to declaring child­
birth an official state “orthodoxy,” which is strictly forbidden by 
the Constitution. See Texas v. Johnson, 109 S. Ct. 2533 (1989) ; 
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).



14

This prohibition against discussing abortion is com­
pounded by 42 C.F.R. subpart 59.8(a) (2), which affirma­
tively compels a doctor to provide distorted information 
designed to promote the welfare of “ mother” and “unborn 
child” even when the woman’s condition renders this 
advice contrary to prevailing professional standards. This 
directly contravenes basic tenets of professional medical 
ethics and established medical care standards, which re­
quire physicians to disclose all medically reasonable 
available options. See Current Opinions of the Council on 
Ethical and Judicial Affairs of the American Medical 
Association § 8.07 (1986); N.Y. Public Health Law 
§ 2805-d(1) (McKinney 1985). In fact, a physician who 
fails to inform a patient of all treatment options and 
the associated risks may well be liable in tort for mal­
practice as a result. See Canterbury V. Spence, 464 
F.2d 772, 781-83 (D.C. Cir.), cert, denied, 409 U.S. 
1064 (1972); Smith v. Cote, 128 N.H. 231, 513 A.2d 
341 (1986).

The coercive combination of prohibition and compul­
sion creates a dilemma for the doctor: the choice be­
tween adherence to the Title X requirements or to the 
professional codes of ethics, and, correspondingly, be­
tween the risks of defunding, on one hand, or disci­
plinary action, potential tort liability, and, of course, 
risks to the patient’s health or life, on the other.

2. The Regulations Violate the Patient’s Right To 
Receive Medical Information

The challenged regulations also affect the patient’s 
rights. This Court has long established that the right to 
receive information is the essential reciprocal of the right 
to convey information. Virginia Pharmacy Bd. v. Vir­
ginia Citizens Consumer Council, 425 U.S. 748, 756-57 
(1976); Kleindienst v. Mandel, 408 U.S. 753, 762 
(1972). This right specifically extends to information on 
contraception and abortion. Bigelow v. Virginia, 421 
U.S. at 821-22 (1975) ; Griswold V. Connecticut, 381 U.S.



15

at 482 (1965); see Planned Parenthood Fed’n v. Bowen, 
680 F. Supp. at 1477; Planned Parenthood v. Fitzpatrick, 
401 F. Supp. 554, 577-78 (E.D. Pa. 1975), aff’d mem. 
sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976).

The right to receive information is especially critical 
in the context of indigent medical care. See Virginia 
Pharmacy Bd., 425 U.S. at 763 (suppression of prescrip­
tion drug price information hits the hardest on the poor, 
the sick, and the aged). In the particular case of the 
physician-patient relationship, incomplete and mislead­
ing information can be tantamount to fatal misinforma­
tion. When the patient is a poor woman, whose only 
access to health care is a clinic that receives federal 
funds, her dependence on the accuracy, reliability, and 
completeness of the medical advice rendered there is 
total.10 By preventing full disclosure of crucial informa­
tion, these regulations thus endanger the health and lives 
of those who need it most.

Similarly, a paying patient’s right to receive medical 
information is threatened. Planned Parenthood Fed’n v. 
Bowen, 680 F. Supp. at 1476; see 53 Fed. Reg. at 2931 
(comments on final regulations) ( “a significant percent­
age of the clients served by Title X projects are full- 
pay” ). Like indigent women, these patients may turn 
for medical advice to a partially Title X-funded facility 
without any knowledge that they will receive a govern- 
mentally distorted flow of medical information.

In summary, these regulations directly intrude upon 
doctor-patient communications for reasons unrelated to 
— and indeed antithetical to—profesisonal standards and 
a patient’s health interest. The First Amendment will 
not tolerate such interference with constitutionally pro­
tected speech.

10 Many Title X-funded clinics provide a unique service for their 
communities. See New York v. Sullivan, 899 F.2d at 415 (Carda- 
mone, J., concurring).



16

II. THE TITLE X REGULATIONS IMPOSE UNCON­
STITUTIONAL CONDITIONS ON THE AVAIL­
ABILITY OF A GOVERNMENT SUBSIDY

Although the government is under no constitutional 
obligation to fund or subsidize family planning activities, 
having done so, it cannot impose conditions that sup­
press or penalize constitutionally protected expression.11 
The Supreme Court has consistently rejected attempts 
by the government to condition a subsidy or benefit on 
the relinquishment by the recipient of a constitutional 
right:

[E]ven though a person has no “ right” to a valuable 
governmental benefit and even though the govern­
ment may deny . . . the benefit for any number of 
reasons, there are some reasons upon which the 
government may not rely. It may not deny a benefit 
to a person on a basis that infringes his constitu­
tionally protected interests— especially, his interest 
in freedom of speech. For if the government could 
deny a benefit to a person because of his constitu­
tionally protected speech or associations, his exercise 
of those freedoms would in effect be penalized and 
inhibited. . . . Such interference with constitutional 
rights is impermissible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (cita­
tions omitted). See Sherhert V. Verner, 374 U.S. at 404- 
05; Speiser v. Randall, 357 U.S. 513 (1958).

As Justice Scalia has noted, “ [i]t is rudimentary that 
the State cannot exact as the price of [cash subsidies and 
other] special advantages the forfeiture of First Amend­
ment rights.”  Austin, v. Michigan Chamber of Com­
merce, 110 S. Ct. 1391, 1408 (1990) (Scalia, J., dissent­
ing) . “ It is too late in the day to doubt that the lib­

11 This prohibition on conditional funding applies whether or not 
the restrictions are designed specifically to inhibit the exercise of 
speech rights. Sherhert V. Verner, 374 U.S. 398, 405 (1963). In 
this case, the effect of the regulations on speech is direct, explicit, 
and intentional.



17

ert[y] of . . . expression may be infringed by the de­
nial of or placing of conditions upon a benefit or privi­
lege.”  Sherbert v. Verner, 374 U.S. at 404.

Likewise, the government cannot punish an existing 
recipient of funds for exercising the right to speech. 
Perry v. Sindermann, 408 U.S. at 597. Otherwise, the 
freedom of speech would “be penalized and inhibited,” 
id., which would allow the government indirectly to 
“produce a result which the State could not command 
directly.” Speiser v. Randall, 357 U.S. at 526. This 
method of “ interference with constitutional rights is im­
permissible.” Perry v. Sindermann, 408 U.S. at 597. 
See United States v. Robel, 389 U.S. 258 (1967). See 
generally Rosenthal, Conditional Spending and the Con­
stitution, 39 Stan. L. Rev. 1103 (1987) ; Sullivan, Un­
constitutional Conditions, 102 Harv. L. Rev. 1415 (1989).

The Title X regulations cross over the line between a 
permissible refusal to subsidize constitutionally protected 
activities and an unconstitutional condition on federal 
subsidies for two distinct reasons.12 First, the regula­

12 Although there is no right to specific types of federally funded 
health care services, see Harris v. McRae, 448 U.S. 297 (1980) and 
Maher v. Roe, 482 U.S. 464 (1977), patients have a right to unim­
peded access to information from health care providers, even if 
the medical facility is partially federally funded. See V/ebster v. 
Reproductive Health Sens., 109 S. Ct. 3040, 3060 (1989) (O’Con­
nor, J., concurring) (leaving open for litigation the controversy 
that would arise if public funds were used to “prohibit publicly 
employed health professionals from giving specific medical advice 
to pregnant women” ) ; id. at 3053-54 (plurality opinion) ; see also 
Planned Parenthood v. Bowen, 680 F. Supp. at 1475.

Moreover, under Maher and McRae, the government may fund 
childbirth provided it “places no governmental obstacle” to the 
patient’s choice, McRae, 448 U.S. at 315, and the policy leaves a 
pregnant woman with the “same choices” as if the government did 
not provide any medical services, Webster, 109 S. Ct. at 3052. See 
McRae, 448 U.S. at 317. Even if they did not offend the First 
Amendment, the Title X  regulations would run afoul of both of 
these prohibitions by mandating that doctors provide incomplete



18

tions invidiously discriminate to suppress dangerous 
ideas. Second, the regulations directly penalize the par­
ticipating organizations for using independent funds to 
exercise rights of free speech.

A. The Conditions Placed on the Title X Subsidy 
Invidiously Discriminate in a Manner Designed To 
Suppress Dangerous Ideas

The Supreme Court has consistently invalidated allo­
cation of governmental benefits based on the viewpoint 
or subject matter of the recipient’s expression. Congress 
may not “ discriminate invidiously in its subsidies in such 
a way as to ‘ai[m] at the suppression of dangerous 
ideas.’ ” Regan v. Taxation With Representation, 461 
U.S. 540, 548 (1983) (quoting Cammarano v. United 
States, 358 U.S. 498, 513 (1959)).13

Thus, in Arkansas Writers’ Project, general-interest 
magazines were denied tax exemptions available to spe­
cialized publications. The Supreme Court found the pro­
vision unconstitutional, emphasizing that the “ official 
scrutiny of the content of publications” required by the 
state was “ entirely incompatible with the First Amend­
ment’s guarantee of freedom of the press.” Id. at 229, 
230.

While rejecting a content-based rule, the dissent in 
Arkansas Writers’ acknowledged that subsidy programs

and, in many cases, medically misleading information. Instead of 
no information, or medical advice in her best interest, the pregnant 
client of a Title X  program is provided with the state view on 
childbirth, under the guise of independent medical judgment.

13 In Taxation With Representation, the Court upheld a require­
ment that lobbying activities protected by the First Amendment be 
separated from other activities as a condition of tax deductibility. 
But the Court emphasized that the tax laws at issue did not dis­
criminate on the basis of content and had neither the intent nor 
the effect of suppressing ideas. 461 U.S. at 548. The Court cau­
tioned that the outcome “would be different” if the subsidies were 
discriminatory. Id.



19

can be “manipulated so as to” have a “ significant coer­
cive effect” over speech. 481 U.S. at 237 (Scalia, J., 
dissenting). In those cases “ the courts will be available 
to provide relief.” Id. The dissent suggested a “prophy­
lactic rule . . . when the subsidy pertains to the expres­
sion of a particular viewpoint on a matter of political 
concern.” Id. (emphasis added).

Similarly, in FCC v. League of Women Voters, 468
U. S. 364 (1984), the Court held that Congress could not 
condition the receipt of grants for public broadcasting 
with a ban on editorializing. The Court criticized the 
ban as “ defined solely on the basis of the content of the 
suppressed speech” because “ enforcement authorities must 
necessarily examine the content of the message that is 
conveyed.” Id. at 383. Significantly, as here, the gov­
ernment sought to portray the regulation as a mere 
refusal to subsidize constitutional activity under the 
spending power, see id. at 399, but the Court rejected 
that approach.

The Title X regulations present this Court with pre­
cisely the invidious speech discrimination forewarned 
in Regan v. Taxation With Representation and con­
demned by both the majority and the dissent in Arkansas 
Writers’. Through their funding conditions, the regula­
tions prohibit core protected speech—-counseling, referral, 
pamphlets, lobbying, and legal action— on one side of a 
controversial social, medical, personal, and political issue, 
and require speech promoting the other viewpoint.

Likewise, the Title X regulations fail the test set 
forth in a case upholding the government’s refusal to 
extend food stamp benefits to striking workers. In Lyng
V. United Automobile Workers, 485 U.S. 360 (1988), the 
Court upheld the statute at issue on the grounds that 
it “ requires no exaction from any individual; it does 
not ‘coerce’ belief; and it does not require [strikers] to 
. . . support political views with which they disagree.” 
485 U.S. at 369. Additionally, the statute in Lyng



20

fairly reflected the legitimate congressional policy of 
“ maintaining neutrality in private labor disputes.”  Id. 
at 373.

In contrast, by silencing doctors as to abortion coun­
seling and referral, prescribing the contents of a referral 
list, prohibiting on a viewpoint-specific basis legal and 
legislative advocacy, and instructing doctors to tell preg­
nant clients interested in abortion-related information 
that abortion is not “ appropriate,” the Title X regula­
tions, taken as a whole, operate to exact, coerce, and 
impose state-sponsored political beliefs on Title X pro­
grams and their professional employees.

Also unlike Lyng, the Title X regulations do not reflect 
a neutral policy toward the recipients of federal benefits. 
In Lyng, striking workers would not lose existing bene­
fits, but simply would not receive additional benefits. 
Here, Title X programs lose their Title X funds if they 
exercise the prohibited speech activity.

Finally, again in contrast to Lyng, the Title X regula­
tions impact not only the rights of those receiving the 
federal subsidy, but also the rights of those who rely on 
the information. As noted above, many indigent clients 
are completely dependent on Title X clinics for vital med­
ical knowledge, and will be unaware that the medical in­
formation they are receiving has been distorted by the 
government. In addition, many private paying patients 
will be unaware that the government has narrowed their 
medical options, or even that their health care provider 
receives some of its funds from the federal government.

B. The Title X Regulations Impermissibly Restrict 
and Penalize Independently Funded Speech

Beyond the fact that viewpoint-based conditions on 
Title X subsidies are unconstitutional, the regulations 
violate the First Amendment on separate grounds because 
they restrict protected speech funded by independent 
sources. Massachusetts v. Secretary of HHS, 899 F.2d



21

at 73-74. As the First Circuit observed, the “ Second 
Circuit . . . ignored the fact that private money ( ‘match­
ing funds’ ) is tied up and held hostage to the same re­
strictions as Title X funds because of the new definition 
of the ‘Title X program’ in the regulations.”  Id. at 71. 
The government may not use the promise of government 
funding as a means of, in effect, dictating how the private 
funds gathered by an organization will be used for pro­
tected speech. FCC v. League of Women Voters, 468 U.S. 
364, 399-401 (1984); see FEC v. Massachusetts Citizens 
for Life, 479 U.S. 238, 255 (1986).

Prior decisions in the medical context have consistently 
applied this principle to strike down laws conditioning 
government subsidies on termination of privately funded 
speech activities. Planned Parenthood v. Arizona, 789 
F.2d 1348; West Virginia Ass’n of Community Health
Centers v. Sullivan, ------  F. Supp. ------ , 1990 Westlaw
66552, at 20 (S.D.W. Va. March 1, 1990) ; Valley Family 
Planning v. North Dakota, 489 F. Supp. 238, 242 (D.N.D. 
1980), aff’d, 661 F.2d 99 (8th Cir. 1981).

The Title X regulations directly violate this principle. 
First, the regulations require that the organization de­
vote privately raised funds to Title X projects and sub­
ject those private funds to the regulations. This guar- 
tees that private funds will be burdened by these regula­
tions. Second, the onerous requirements of separation 
between a Title X project and an organization’s non- 
funded activities discourage protected speech and uncon­
stitutionally limit private expenditures.

1. The Regulations’ Imposition of Content Restric­
tions on Non-Federal Funds Unconstitutionally 
Restricts Independent Spending

The unconstitutional impact of government regulations 
on private speech is described in FCC v. League of 
Women Voters. There, the Court emphasized that condi­
tioning public broadcasting grants on a ban on editorial­



22

izing was invalid in part because it prevented local sta­
tions from underwriting editorializing with non-federal 
funds, so that “ a noncommercial educational station that 
receives only 1% of its overall income from [federal] 
grants is barred absolutely from all editorializing . . . 
and, more importantly, it is barred from using even 
wholly private funds to finance its editorial activity.” 
468 U.S. at 400.

That these regulations govern use of private funds is 
incontrovertible. By definition, the regulations cover all 
activities of a Title X program regardless of the source 
of funds: “ Title X project funds include all funds allo­
cated to the Title X program, including but not limited 
to grant funds, grant-related income or matching funds.” 
42 C.F.R. § 59.2 (emphasis added).

Two types of private funds are necessarily implicated 
by this definitional scheme. First, every Title X program 
includes at least 10% of its budget from matching funds 
obtained from independent sources. Massachusetts v. 
Secretary of HHS, 899 F.2d at 73 n .ll. In practice, the 
independent funds account for between 10 and 91 percent 
of Title X program funding, with an average of 50%. 
Id. Thus, it follows that, as the First Circuit found, 
“ the regulations directly restrict the use of a significant 
amount of private money (the 10% or more that the pri­
vate organizations spend within the Title X program).” 
Id. at 74. See also West Virginia Ass’n, 1990 Westlaw 
66552, at 19-21 (rejecting view that the Title X regula­
tions restrict only the use of public funds). This First 
Circuit conclusion is unchallengeable; the Title X pro­
gram definition demands the inclusion of independent 
funds.

Second, the regulations affect the organizations’ use of 
privately generated funds from patient fees.14 Notably,

14 The regulations define “grant-related income,” which includes 
patient fees, as included in the definition of Title X  funds subject 
to the regulations. 42 C.F.K. § 59.2.



23

the court below indicated that it was unclear on the 
record whether participating organizations provide care 
for private paying patients. New York v. Sullivan, 889 
F.2d at 413-14. However, indisputably, private patients 
are clients of programs that use Title X funds, as HHS 
concedes and as two district courts have confirmed. 53 
Fed. Reg. at 2931; see Planned Parenthood Fed’n v. 
Bowen, 680 F. Supp. at 1476; West Virginia Ass’n, 1990 
Westlaw 66552, at 18.

Because of this inclusion of private matching funds 
and payments from private patients in their coverage, the 
regulations are invalid as unconsitutional conditions 
placed on the use of private funds by Title X fund re­
cipients.

2. The Requirement of Artifically Strict Separa­
tion Between Title X Projects and Other Activi­
ties Discourages Protected Speech

Even if the Title X regulations did not mandate the 
use of independent funds, the regulations would still be 
unconstitutional due to the burden imposed on the use of 
private funds by the strict requirements of physical and 
administrative separation between Title X projects and 
the participating organizations’ independent activities. A 
series of recent cases outlines the parameters under 
which the government may attach non-viewpoint-related 
conditions to government benefits where the conditions 
have the practical effect of “ discouraging] protected 
speech.”  FEC v. Massachusetts Citizens for Life, 479 
U.S. at 255; FCC v. League of Women Voters, 468 U.S. 
364; Regan v. Taxation With Representation, 461 U.S. 
at 545. These cases examine the conditions on the 
subsidized activities in the light of the organizations’ 
alternative means of exercising the same free speech 
rights through an affiliate or subsidiary. If “ the avenue 
[that the statute or regulation] leaves open is more bur­
densome than the one it forecloses,” the restriction is un­
constitutional. Massachusetts Citizens for Life, 479 U.S. 
at 255.



24

For example, in Taxation With Representation, this 
Court addressed a regulation that it determined did not 
discourage protected speech. There, it upheld an IRS re­
quirement that lobbying by tax-exempt organizations 
must be conducted by a separate “ lobbying affiliate.” 461 
U.S. at 544-45 n.6. Crucial to this holding was the 
finding that “ [t]he IRS apparently requires only that the 
two groups [the non-profit and its lobbying affiliate] be 
separately incorporated and keep records adequate to 
show that tax-deductible contributions are not used to 
pay for lobbying.” 461 U.S. at 544 n.6. Critically, the 
tax-exempt organization did not claim that this “dual 
structure” created any discouragement of speech or 
burden on speech. Id.

In contrast, in FCC v. League of Women Voters, the 
Court struck down a federal ban on editorializing by non­
commercial educational television stations, in part be­
cause the ban penalized private, protected speech activity: 
the stations could not easily segregate speech-related ac­
tivities by their source of funding. 468 U.S. at 399-401. 
Applying the Taxation With Representation framework, 
the Court reasoned that if Congress were to allow non­
commercial educational stations to establish “ ‘affiliate’ 
organizations which could then use the station’s facilities 
to editorialize with nonfederal funds,” then the First 
Amendment infirmities might be cured. Id. at 400 (em­
phasis added). But absent any such alternative, the re­
striction on the organization’s free speech rights was 
unconstitutional.

Finally, in Massachusetts Citizens for Life, this Court 
invalidated provisions of federal election law requiring 
corporations to segregate funds used “ in connection with” 
federal elections.13 479 U.S. at 241. The election law 
mandated changes in accounting and organizational 15

15 The law did not apply to unincorporated associations. Thus, 
the benefits of incorporation were conditioned on the election law 
requirements.



25

structure, and imposed other minimal administrative 
costs. The Court found that the requirement that such 
activities be segregated in a separate organization un­
constitutionally burdened the organization’s First Amend­
ment rights.16 478 U.S. at 263.

The Title X regulations far exceed the parameters set 
by this Court in these cases. They require an independ­
ently funded activity to be “ physically and financially 
separate” from any of the defined “prohibited activities” 
and stress that “ [m]ere bookkeeping separation of Title 
X funds from other monies is not sufficient.” 42 C.F.R. 
§ 59.9. To be sufficiently physically separate, the Title X 
facility must, to the government’s satisfaction, have sepa­
rate staff and separate treatment, consultation, examina­
tion, and waiting rooms. 42 C.F.R. § 59.10.

The First Circuit found that the separation require­
ments of the Title X regulations burdened First Amend­
ment speech: “ The practical effect of the regulations is to 
restrict significantly the ability of the recipient organiza­
tion to engage in the forbidden counseling, even on its 
own time with its own money.” Massachusetts v. Secre­
tary of HHS, 899 F.2d at 74. Thus, the separation re­
quirements force Title X programs to choose among 
significantly curtailing activities to achieve the required 
segregation, closing, and restricting the speech rights of 
doctors and patients. Id. at 75 n.13.

The Title X regulations require a segregation of 
funded and non-funded activities that is plainly more 
onerous than the administrative requirements upheld in 
Taxation With Representation, more burdensome than 
the administrative requirements invalidated in Massa­

16 A  plurality in Massachusetts Citizens for Life found an im­
permissible burden in the recordkeeping requirements, disclosure obli­
gations, and solicitation limitations. Id. at 256-63. Justice O’Connor 
found the burden in the organizational restraints placed upon the 
organization by the state. Id. at 265-66 (O’Connor, J., concurring 
in part and concurring in judgment).



26

chusetts Citizens for Life, and at least as burdensome as 
the ban on editorializing invalidated in League of Women 
Voters}1 They fall clearly on the League of Women Vot­
er s-Massachusetts Citizens for Life rather than the Tax­
ation With Representation side of the line. The speech- 
impairing requirements of separation of subsidized and 
non-subsidized activities, far from rendering the restric­
tions on the subsidized activities constitutional, imper­
missibly and unconstitutionally penalize the non-subsi­
dized, private activities, chilling protected speech in vio­
lation of the First Amendment.17 18

17 As the First Circuit specifically found, “this [separation] 
requirement is significantly more onerous that the purely paper­
work requirements at issue in Regan.”  899 F.2d at 75 n.13. Sig­
nificantly, the requirement struck down as unconstitutionally bur­
densome in League of Women Voters, like the Title X  regulations, 
would have required stations to operate dual facilities in order to 
exercise their protected First Amendment rights, 468 U.S. at 399- 
401.

18 The vague definitions of separation also burden independent 
speech. Separation determinations will be made on a “case by 
case” basis with four “non-exclusive factors” weighed. 53 Fed. 
Reg. at . 2940. No “examples” of combinations of factors that 
would not be considered “separate” were given because such ex­
amples would be “misleading” given the “ complex circumstances 
and conditions that the Department will be considering.” Id.

When faced with a ban on unreasonable fundraising fees in 
Riley, this Court rejected such case-by-case rules where free speech 
might be chilled. 487 U.S. at 793-94. “ Speakers . . . cannot be 
made to wait for years before being able to speak with a measure 
of security.” Id. at 794. In every case, the fundraiser would “risk 
. . .  a mistaken adverse finding by the factfinder, even if the fund­
raiser and the charity believe that the fee was in fact fair.” Id. 
“This scheme must necessarily chill speech in direct contravention 
of the First Amendment dictates.” Id.

Likewise, Title X  grantees’ speech with independent funds will 
be chilled by the poorly defined separation requirement as they are 
forced to go far beyond the requirements’ dictates to avoid de- 
funding.



27

CONCLUSION
The Title X regulations thus pose a grave challenge to 

fundamental First Amendment rights and to the central 
premise that the government cannot invidiously discrimi­
nate in its subsidies and cannot condition entitlement to 
benefits on the relinquishment of the right of free speech. 
Accordingly, the National Association of Women Lawyers 
and the National Conference of Women’s Bar Associa­
tions urge this Court to reverse the decision below and 
strike down the regulations as unconstitutional.

Respectfully submitted,

James F. Fitzpatrick *
Counsel of Record 

L. Hope O’Keeffe 
Laurence J. Freedman

Arnold & Porter 
1200 New Hampshire Ave., N.W. 
Washington, D.C. 20036 
(202) 872-6700
Walter Dellinger 
Duke Law  School

July 27,1990 Attorneys for Amici Curiae

* The research assistance provided by Steven Croley of the Yale 
Law School and Jonathan Poisner of Boalt Hall School of Law is 
gratefully acknowledged.