Rust v Sullivan Brief Amici Curiae

    N os. 89-1391, 89-1392

In The

Supreme Court of tf)e Hmteti 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 A ssociation 
of New  Y ork City, Inc., Planned Parenthood of 

New Y ork City, Inc., Planned Parenthood of 
W estchester/Rockland, and Health Services of 

Hudson County, New  Jersey,
Petitioners,

v.
Dr. Louis Sullivan, or his successor, Secretary 

of the United States Department of 
Health and Human Services,

Respondent.

The State of New  Y ork, The City of New  Y ork, 
The New  Y ork City Health & Hospitals Corp.,

Petitioners,
v.

Dr. Louis Sullivan, or his successor, Secretary 
of the United States Department of 

Health and Human Services,
Respondent.

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

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND OTHER 
ORGANIZATIONS! AS AMICI CURIAE IN 

SUPPORT OF PETITIONERS

Julius LeVonne Chambers 
Charles Stephen Ralston* 
Sherrilyn A. Ifill 
Marianne Engelman Lado 
Charlotte Rutherford 

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 219-1900

*  Counsel o f Record Counsel for Amici Curiae 
t Individual amici are listed beginning on the inside front cover.

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



THE NATIONAL BLACK WOMEN’S HEALTH 
PROJECT, NATIONAL URBAN LEAGUE, INC., 

MEXICAN AMERICAN LEGAL DEFENSE & 
EDUCATIONAL FUND, MEXICAN AMERICAN 

WOMEN’S NATIONAL ASSOCIATION, NATIVE 
AMERICAN COMMUNITY BOARD, THE WOMEN 
OF COLOR PARTNERSHIP PROGRAM OF THE 

RELIGIOUS COALITION FOR ABORTION RIGHTS, 
THE BLACK, ASIAN PACIFIC, HISPANIC AND 

NATIVE AMERICAN CAUCUSES OF THE 
NATIONAL WOMEN’S POLITICAL CAUCUS, 

AMERICAN INDIAN HEALTH CARE 
ASSOCIATION, OFFICE OF CHURCH & SOCIETY 

OF THE UNITED CHURCH OF CHRIST, NEW 
YORK CITY COMMISSION ON HUMAN RIGHTS, 

NATIONAL INSTITUTE FOR WOMEN OF COLOR, 
NATIONAL MEDICAL ASSOCIATION.



QUESTION PRESENTED
(1) Whether agency restrictions on 

Title X family planning services 
that will imperil the health of 
poor African American women and 
other low-income women of color 
contravene Congress' intent and 
are, therefore, invalid?

1



TABLE OF AUTHORITIES 
Cases: Page
General Electric Co. v. Gilbert,

429 U.S. 125 (1976)   14
Green v. McElroy, 360 U.S. 474

(1959)   30
Skidmore v. Swift & Co.,

323 U.S. 134 (1944)   14
United States v. Carolene 

Products Co., 304 U.S. 144 
(1938)   29

United States v. Weller,
401 U.S. 254 (1971)   30

Yick Wo v. Hopkins,
118 U.S. 356 (1886)   29

Saint Mary of Nazareth Hosp.
Center v. Schweiker, 718 F.2d
459 (D.C. Cir. 1983)   14

. United Transportation Union v.
Lewis, 711 F.2d 233
(D.C.Cir. 1983)   14

PPFA v. Bowen, 680 F. Supp. 1465
(D. Colo. 1988)   19

STATUTES
5 U.S.C. § 706 .................  4

IV



42 U.S.C. § 300a-l-6 passim
Page

42 U.S.C. § 1396 et. seg........  34
42 U.S.C. § 2OOOd ..............  36
42 C.F.R. §§ 59.7-59.10 ........  passim

LEGISLATIVE AUTHORITIES
116 Cong. Rec. (1970) .........  passim
Hearings on S.2108 Before the

Subcomm. on Health of the Senate 
Comm, on Labor and Public Welfare,
91st Cong., 1st Sess. (1969) .. 8,9,44

H.R. Rep. No. 1472, 91st Cong.,
2d sess., reprinted in 1970
U.S. Code Cong. & Admin News
5068, 5074   20

OTHER AUTHORITIES
The Alan Guttmacher Institute,

Organized Family Planning Services 
in the United States, 1981-1983 
(1984)   31,35,37

Association for Sickle Cell 
Services Education Research 
and Treatment, Inc., Sickle 
Cell Anemia: A Family Affair
(1988)   52

v



Children's Defense Fund,
A Vision for America's Future: An 
Agenda for the 1990's: A 
Children's Defense Fund Budget 
(1989) ..................... 37,38,42

Children's Defense Fund,
Black and White Children in
America: Key Facts (1985) .... 33,37,38

Children's Defense Fund,
The Health of America's Children: 
Maternal and Child Health 
(1988) ........................  43, 49

Dallek, G., Health Care for America's 
Poor: Separate and Unequal,
20 Clearinghouse Rev. 361 (1986)... 36

Forrest, J., Gold, R., and Kenney,
A., The Need, Availability and 
Financing of Reproductive Health 
Services (1989)   31,35

Gold, R., Kenny A., and Singh S.,
"Paying for Maternity Care in the 
United States," 19 Fam. Plan.
Persp. 260 (Nov./Dec. 1984) ... 42

Grimes, Second-Trimester Abortions 
in the United States, 16 Fam.
Plan. Persp. 260 (Nov./Dec.
1984)   41

Mosher, W., Use of Family Planning 
Services in the United
States: 1982, 1988 ......  31,32,34,37

vi



Page
National Academy of Sciences,

Risking the Future: Report
on Adolescent Pregnancy (1987)....  47

National Commission to Prevent
Infant Mortality, Troubling Trends:
The Health of America's Next 
Generation 20 (1990) .........

U.S. Dept, of Health and Human 
Services, "Program Guidelines 
for Project Grants for Family 
Planning Services" (1981) ....

U.S. Dept, of Health and Human 
Services, Office of Minority 
Health, Closing the Gap,
"Infant Mortality, Low Birth 
Weight, and Minorities"
(1988) .................. 43,

U.S. Dept, of Health and Human 
Services, "The Report of the 
Secretary's Task Force on Black 
and Minority Health"
(1985) ................  50,51,52,53

U.S. Dept, of Health, Education, 
and Welfare, "A Report on Family 
Planning Services and Population
Research" (Dec. 1978) ........  21

U.S. Dept, of Health, Education, 
and Welfare, Office of Civil 
Rights, from Chaukin to Russell 
(Dec. 11, 1980) ...............  36

43

1, 15

50, 51

V l l



Page
Weston, G., "AIDS in the Black 

Community," Au Courant (Fall,
1986) .........................  54

Worth, D., and Rodriguez, R.,
"Latina Women and AIDS," SIECUS 
Report (Jan./Feb. 1987) ......  54, 55

V I 11



SUMMARY OF ARGUMENT

Amici, supporting petitioners, contend 
that the regulations promulgated by the 
Department of Health and Human Services 
(HHS) that prohibit pregnancy counseling 
and referral in Title X family planning 
clinics contravene Congress' intent in 
enacting Title X and are, therefore, 
invalid.

Title X of the Public Health Service 
Act was enacted to address a national 
shortage of reproductive health care 
services1 for poor women. Congress

Comprehensive reproductive health 
care has been interpreted to be inclusive 
of, but not limited to: physical 
examinations and pap smears, contraceptive 
counseling and distribution, screening 
and/or treatment for sexually transmitted 
diseases and other gynecological 
illnesses, genetic screening, pregnancy 
testing and options counseling and 
referrals, and prenatal care. See HHS, 
Program Guidelines for Project Grants for 
Family Planning Services. (1981) at 7-16; 
JA at 32A-41A. (Hereinafter cited as HHS,



specifically targeted African American 
women and women of color as intended 
beneficiaries. In drafting the program, 
Congress placed particular significance on 
providing poor minority patients with non- 
coercive family planning information and 
comprehensive reproductive health 
services.

The challenged regulations directly 
conflict with this Congressional mandate. 
The new restrictions on counseling and 
referrals and the requirement that 
programs be physically and financially 
separated will reduce services for 
millions of low-income women, with a 
disproportionate share of the burden borne 
by women of color. The regulations will 
operate to limit health care in a number 
of ways: first, the availability of

Program Guidelines).
2



health services and information to low- 
income women will be restricted because 
clinics will be forced to close; second, 
the quality of care received by clinic 
patients who are diagnosed as pregnant 
will be compromised; and third, poor women 
will be prohibited from exercising the 
full range of pregnancy options that are 
available to affluent women.

ARGUMENT
I. THE CHALLENGED REGULATIONS CONTRAVENE 

CONGRESS' INTENT IN ENACTING TITLE X IN 
VIOLATION OF THE ADMINISTRATIVE 
PROCEDURE ACT.
The Administrative Procedure Act 

authorizes a reviewing court to invalidate 
agency regulations that conflict with the 
law or that are beyond the scope of

3



The challenged. . . . 2 statutory jurisdiction.

Title X regulations,* 2 3 which contravene

Congress' intent in enacting Title X, fall
outside of the delegated power and
statutory authority of the Department of
Health and Human Services (HHS), and are,
therefore, invalid.

The Administrative Procedure Act 
states, in relevant part:

The reviewing court shall —  ...
(2) hold unlawful and set aside 
agency action, findings, and 
conclusions found to be --
(A) arbitrary, capricious, an abuse 
of discretion, or otherwise not in 
accordance with law; ....
(C) in____excess____ of statutory
jurisdiction ,____ authority ,____ or
limitations. or short of statutory 
right ....

5 U.S.C. 706. (emphasis added)
3 Codified at 42 C.F.R. §§ 59.7-

59.10 (Feb. 2, 1988) .
4



A. Congress Intended Title X to Provide 
Comprehensive Reproductive Health Care 
for Low-Income Women and Women of 
Color.4

Title X of the Public Health Service 
Act was enacted in 197 0 with broad 
bipartisan support to address a national 
crisis in the provision of comprehensive 
reproductive health care for poor women. 
Thus, the purpose of the Act was to ensure 
the availability of health information, 
referrals, counseling, and medical care to 
women who, by reason of their economic 
status, do not enjoy the benefits of 
comprehensive health care. At the time of 
the passage of the Act, over 5 million 
medically indigent women in the United 
States were without vital health care

4 The term "women of color" refers to 
women of African American, Hispanic or 
Latina, Asian/Pacific Island and Native 
American ancestry.

5



services. See 116 Cong. Rec. S. 24,089, 
24,092-96 (daily ed. July 14, 1970) 
(Statement of Sen. Eagleton, Hart); JA at 
206A-210A; 116 Cong. Rec. H. 37,365, 
37,382 (daily ed. Nov. 16, 1970) 
(Statement of Rep. Harrington); JA at 234. 
Indeed, 7 out of 10 women in New York who 
needed family planning services were 
denied such services because of poverty. 
See 116 Cong. Rec. H. 37,365, 37,385-86 
(daily ed. Nov. 16, 1970) (Statement of 
Rep. Harrington) ; JA at 237A-238A. The 
severity of this health crisis, and its 
social, economic and environmental 
implications, inspired Congress to 
overcome controversy over the question of 
abortion, and to create a program which 
would respond to the "need for non- 
coercive family planning services" for 
poor women. See 116 Cong. Rec. S. 24,089,

6



24,092 (daily ed. July 14, 1970) 
(Statement of Sen. Eagleton); JA at 207A.

In targeting the poor with this 
legislation, Congress recognized that 
Title X also necessarily and specifically 
targeted minority women. See 116 Cong. 
Rec. H. 37,365, 37,374 (daily ed. Nov. 16, 
197 0) (Statement of Rep. Schmitz) ; JA at 
226A . ("The people at whom this bill is 
specifically aimed are the poor. . . and .

. minorities.") Noting, for example, 
the higher rate of poverty among non­
whites, one member of Congress testified 
that in 1970 "the infant mortality rate 
among non-whites [was] three times that of 
whites, with a maternal mortality rate
four times greater." See 116 Cong. Rec.
H. 37,365, 37,380 (daily ed. Nov. 16,
1970) (Statement of Rep. Kyros) ; JA at
2 3 2 A .

7



Shirley Chisholm, then a United States 
Representative from New York, testified at 
length before the Senate Subcommittee on 
Health about the disproportionate burden 
poor African American and Hispanic women 
bore as a result of their lack of access 
to adequate family planning health care. 
Congresswoman Chisholm noted, for example, 
that septic and self-induced abortions 
accounted for the maternity-related deaths 
of "only 25 percent of white women while 
it caused 49 percent of the [maternity- 
related] deaths of non-white women and 56 
percent of the [maternity-related] deaths 
of Puerto Rican women in New York City in 
1969." Hearings on S. 2108, S. 3219 
Before the Subcomm. on Health. Committee 
on Labor and Public Welfare. 91st Cong., 
1st. Sess. 195 (Dec. 9, 1969) (Statement 
of Rep. Shirley A. Chisholm) . Sue

8



Randall, then migrant project coordinator 
for Southwest Region Planned Parenthood of 
Austin, Texas, attested to the desperate 
need for federal family planning programs 
to serve the predominantly Mexican- 
American migrant population in the 
Southwest. Id. at 218-219.

Congress was well aware of the critical 
need for adeguate family planning services 
for poor women of color. Congressional 
hearings held prior to the passage of 
Title X amassed a wealth of evidence, 
including the testimony and written 
statements of over 30 expert and 
professional witnesses and over 40 
medical, legal and religious oraniza- 
tions. The weight of this evidence 
indicated that poor women in general, and 
women of color in particular, were in need 
of comprehensive reproductive health

9



services. See, e. ct. . Testimony of Cong. 
Ottinger See 116 Cong. Rec. 37,365, 37,386 
(Statement of Rep. Ottinger); JA at 238A. 
Despite the continued controversy over the 
question of abortion,5 therefore, Congress 

envisioned and drafted Title X as a unique 
program that would succeed where previous, 
less ambitious, programs had failed. 
Title X's broad reach contemplated the use 
of funds for the training of personnel, 
research, public education and medical 
care. 42 U.S.C. §§ 300 a-1, a-2 and a-3.

Congress addressed the concern 
expressed by some witnesses and Congress- 
persons that the program not fund abortion 
by including Section 1008 of the Act, 
which prohibits the use of Title X program 
funds "in programs where abortion is a 
method of family planning." 42 U.S.C. 
§300a-6. Prior to 1987, HHS had never 
interpreted this language to prohibit 
referrals to abortion providers.

10



program,In constructing the 
Congress placed particular significance on 
the provision of health information to 
poor women. See 116 Cong. Rec. H. 37,365, 
37,387 (daily ed. Nov. 16, 1970)
(Statement of Cong. Broomfield); JA at 
239A . It was freguently emphasized that
the information provided to Title X 
patients would be "non-coercive". See 116 
Cong. Rec. S. 24,089, 24,092 (daily ed.
July 14, 1970) (Statement of Sen.
Eagleton); JA at 206A. See 116 Cong. Rec. 
H. 37,365, 37,389 (daily ed. Nov. 16,
1970) (Statement of Rep. O'Hara); JA at 
241A ; Id. at p. 37,3 88 (Statement of Rep. 
Burke); JA at 240A; Id. at p. 37,384 
(Statement of Rep. Bingham); JA at 236a; 
Id. at p. 37,370 (Statement of Cong. Bush) 
JA at 222A. Congress recognized the 
danger of coercive family planning

11



services aimed at the poor, whose unique, 
dependent status places them in a 
vulnerable position, especially in the 
context of the insular physician-patient 
relationship. See 116 Cong. Rec. H. 
37,365, 37,389 (daily ed. Nov. 16, 1970)
(Statement of Rep. Burke) ; JA at 2 41A. 
Congress was careful, therefore, to ensure 
that the services provided would be non- 
coercive and respectful of "the 
consciences of peoples of all faiths," yet 
broad enough to meet the critical family 
planning needs of poor women. See 116 
Cong. Rec. H. 37,365, 37,370 (daily ed.
Nov. 16, 1970) (Statement of Rep. Bush);
JA at 222A.

Although at the time of the passage of 
the Act abortion was legal in only four

12



states,6 Congress contemplated that the 

information and referrals provided under 
Title X would include the full range of 
available medical options for addressing a 
patient's medical condition. See, e . q . , 
116 Cong. Rec. S. 24,089, 24,095-96 (daily 
ed. July 14, 1970) (Statement of Sen. 
Hart); JA at 209A-210A. Indeed, the 
legislative history reveals that Congress 
was particularly concerned that non- 
coercive information and medical 
counseling be provided to poor women who 
faced unwanted pregnancy. See, e .q ., 
Statement of Sen. Eagleton, supra. at 
24,092; JA at 206A. Congress specifically 
intended, therefore, that "[t]he 
information and educational materials

In 1970, abortion was legal in 
Alaska, Hawaii, New York and Washington. 
See. e .q .. 116 Cong. Rec. H. 37,365, 
37,379 Nov. 16, 1970) (Statement of Rep. 
Dingell); JA at 231A.

13



[provided as part of the program] should
not be aimed at motivation, especially at
motivating the person to adopt a
particular ideology. . . . "  Statement of
Rep. Burke, supra at 37,388; JA at 240A.
B. The New Regulations Reverse Long- 

Standing Agency Policy And Are 
Inconsistent With Congress' Intent To 
Provide Non-Coercive, Comprehensive 
Health Care.
The weight to be accorded to an 

agency's statutory interpretation depends, 
in part, upon its consistency with earlier 
and later pronouncements. General
Electric Co. v. Gilbert. 429 U.S. 125, 
141-42 (1976); Skidmore v. Swift & Co..
323 U.S. 134, 140 (1944). See Saint Mary
of Nazareth Hosp. Center v. Schweiker. 718 
F. 2d 459, 469 (D.C.Cir. 1983); United
Transportation Union v. Lewis. 711 F.2d 
233, 242 (D.C.Cir. 1983). HHS' decision, 
in 1987, to prohibit Title X-funded

14



doctors from discussing the abortion 
option with their patients and from 
providing referrals for such services, 
constituted an abrupt reversal of agency 
interpretation. This reversal directly 
conflicts with Congress' intention that 
poor women be provided with comprehensive 
reproductive health care. As such, these 
new regulations fall outside HHS' 
delegated authority and are owed no 
deference.

For the first seventeen years of the 
program's operation, the administering 
agency, first the Department of Health, 
Education and Welfare (HEW), and now HHS, 
interpreted Congress' mandate that non- 
coercive information and services be 
provided to Title X patients to include 
information about abortion services, where 
indicated. HHS, Program Guidelines.

15



supra. Suddenly, without any direction or 
concern being raised by Congress, the 
agency has rewritten its regulations to 
exclude counseling and referral about the 

abortion option.
The political controversy which has 

spawned the new HHS regulations was not 
unforeseen by Congress. From the outset, 
Congress recognized that strong and clear 
direction from Congress to the 
administering agency would be necessary to 
the success of Title X as a non-coercive, 
comprehensive "health-care service 
mechanism." Statement of Rep. Bush, 
supra. at 37370; JA at 222A; Statement of 
Rep. Hawkins, supra at 37370; JA at 222A; 
Several Congressmen acknowledged that 
family planning "health services to the 
poor ha[d] been grossly mismanaged in the 
past" by the agency. Statement of Rep.

16



Bush, supra. at 37,371; JA at 223A. One 
sponsor of the Act, Congressman Scheuer, 
expressed open distrust of the agency's 
capacity to administer the program in 
accordance with the letter and spirit of 
Title X that was intended by Congress. 
Despite the testimony from then HEW 
Secretary Elliot Richardson in support of 
the legislation, Congressman Scheurer 
pointed out that it was Congress, not HEW, 
which "consistently led the way in lifting 
the curtain of controversy from family 
planning," and "forced the Department to 
face its responsibilities." Statement of 
Rep. Scheuer, supra, at 37 0; JA at 2 2 2  A .  

Congressman Scheurer predicted that 
Congress would need "to continuously 
exercise the maximum degree of legislative 
review and moral leadership" to ensure 
that the success of the program was not

17



undermined by political pressure and 
agency mismanagement. Id.

Despite 17 years of consistent and 
conscientious interpretation of the Act by 
HHS in accordance with Congressional 
intent, HHS has now proved the accuracy of 
Congressman Scheuers' prediction. HHS' 
actions infuse political and religious 
beliefs into Title X by requiring that 
providers deny their patients information 
about the full range of medical options 
for dealing with pregnancy. The
disastrous results these regulations will 
have on the integrity of Title X-funded 
programs, and on the health of the poor 

women who use them, demonstrates the new 
regulations' flagrant conflict with 
Congress' intent.

18



C. The Challenged Regulations Will Result 
In a Dual System of Health Care Which 
Will Imperil the Health of Poor Women, 
A Disproportionate Number of Whom Are 
African American And Other Women of 
Color.
The new regulations will directly limit

access to basic health care for the
millions of poor women who rely on
federally funded family planning services, 
thereby contravening the program's 
congressional mandate.

Congress indicated that Title X was 
specifically aimed at eradicating a dual 
system of health care for poor and wealthy 
women. See PPFA v. Bowen. 680 F. Supp. 
1465, 1469 (D. Colo. 1988) (Title X 
designed to eliminate a two-tiered system 
of delivery of family planning services). 
In the committee report accompanying the 
final House version of the Title X bill, 
Congress acknowledged that the lack of

19



free family planning services "deprives 
low-income women of the right to 
effectively plan their families, a right 
long enjoyed by more affluent couples. 
This form of discrimination, based on 
economic status, has many unfortunate 
health, social and financial conseguences 
for the individual family and the 
society." H.R. Rep. No. 1472, 91st Cong., 
2d Sess, reprinted in 1970 U.S. Code Cong, 
and Admin. News at 5074; JA at 252A. HHS' 
promulgation of regulations that 
deliberately foster ignorance about 
medical options and compel physicians to 
provide substandard health care to poor 
women is "an attempt to coerce or 'punish' 
the poor," in direct conflict with 
Congress' intended purpose in enacting the 
statute. 116 Cong. Rec. 37,263, 37,389 
(1970); JA at 241A. 116 Cong. Rec. H.

20



37,365, 37,389 (daily ed. July 14, 1970)
(Statement of Rep. Burke); JA at 241A.

Low-income women and teenagers at risk 
of pregnancy, a disproportionate number of 
whom are African American and other women 
of color, often have greater problems than 
higher income and older women in obtaining 
medical care. Poor and young women simply 
cannot afford medical services and often 
have less experience or knowledge about 
how to navigate the fragmented American 
health care system. Clinics that rely on 
Title X funds, in whole or in part, often 
provide the only continuous health care 
that poor women, particularly the 
uninsured, may receive.7

HHS itself has acknowledged that 
"[f]or many clients, family planning 
programs are their only continuing source 
of health information and medical care." 
HHS Program Guidelines, supra, at sec. 9.4 
(39A). See also HEW, A Report on Family 
Planning Services and Population Research

21



Additionally, Title X clinics are 
currently relied upon by their patients to 
provide a wide range of health information 
and referrals that are otherwise 
unobtainable in low-income communities. 
Other types of health care, such as infant 
care, teen counseling, high risk pregnancy 
care, and abortion services, are often 
provided by programs located in the same 
facility as the Title X family planning 
service. See, e.q.. Morgan Aff. at f 1.

Because African American and other 
women of color are overrepresented as 
clinic patients, they will be severely 
disadvantaged by any limitations imposed 
on family planning clinics.

The challenged regulations will limit 
the health care that Title X provides in 
several ways: the availability of health

18 (Dec. 1978) (309A).

22



services and information to low-income
women will be restricted because a number 
of clinics will be forced to close; the 
quality of care received by clinic 
patients who are diagnosed as pregnant 
will be compromised by the prohibition on 
counseling about their options; and the 
lives and well-being of those women for 
whom abortion may be medically indicated 
will be jeopardized by the lack of 
information.

Significantly, the regulations will 
disadvantage and limit health care 
services only for the poor. Affluent 
women, capable of paying private doctors 
for medical care will continue to have 
access to information about the full range 
of pregnancy options, including abortion, 
while poor pregnant women and adolescents 
will be denied access to such basic

23



information and will be uninformed about
the abortion option.

Moreover, affluent women will be able 
to make decisions regarding their 
pregnancies in consultation with their 
physicians based on reasoned, impartial 
and complete information about medical 
options, as currently required by federal 
and state law, as well as medical ethical 
guidelines. See Morley Aff. at 18-22; 
JA at 664A-666A. Rosenfield Aff. at ffl 7, 
23; JA at 679A, 689A. Women able to pay 
for private physicians will be able to 
make their health decisions free from 
government mandated coercion by 
physicians.

Poor pregnant women, on the other hand, 
will always be steered toward childbirth 
by Title X providers. These health 
professionals will be compelled by the new

24



regulations to provide all pregnant women 
with only prenatal care information and 
referrals, irrespective of the patient's 
physical or emotional condition, and 
without regard for the attending 
physician's best medical judgment.

Congress did not intend such a result 
when Title X was enacted.

1. The challenged regulations will result 
in fewer health care resources and 
substandard medical care for low- 
income African American and other women 
of color, thereby endangering their 
health.
Under 42 CFR § 59.9 of the new

regulations, federally funded clinics will 
be required to separate their Title X 
programs physically as well as financially 
from any non-federally funded program that 
provides abortion counseling, referrals or 
services. Title X-funded clinics may be, 
at the Secretary's discretion, prohibited

25



from sharing office space, buildings, 
telephones, staff or medical records with 
programs providing abortion services or 
engaged in abortion-related activities. 
Not only will the regulations serve to 
fragment the comprehensive health care 
scheme envisioned by Congress, but for 
most clinics, the expense of establishing 
a separate facility with separate staff 
will be prohibitive.

The regulations will force many 
organizations that receive Title X funds 
into one of the following options: 
eliminate either the family planning 
program or the program that offers 
abortion counseling; lose federal funding 
altogether, jeopardizing financial 
stability and continued operation; or 
cease to operate entirely. See Morley 
Aff. at 7-8; JA at 660A-661A. Each of

26



these options will result in a devastating 
loss of health care to low-income 
communities that can ill-afford any 
reduction in services.

In affidavits filed in proceedings in 
the Second Circuit and other jurisdic­
tions, health practitioners and program 
directors have stated that it is not 
economically feasible to operate separate 
facilities for family planning services 
and for abortion services.

Moran Affidavit, at ^8; (The loss 
of these funds, constituting 50% of our 
family planning budget at the Bronx Center 
would compel a drastic reduction in 
services to low-income women in the South 
Bronx.") Affidavit of Margie F. Hale, 
Exec. Dir., The Women's Health Center of 
West Virginia, Inc., West Virginia 
Association of Community Health Centers v. 
Sullivan. C.A. 2:89-0330 (S.D.W.V.) ("[I]f 
Title X regulations ban the co-location of 
family planning services and abortion 
services, the Center would terminate its 
family planning services.") See Appendix 
at 35a at f8; Affidavit of Bruce Berry, 
M.D., Vice Chairman of the West Virginia

27



Section of District 4 American College of 
Obstetricians and Gynecologists, West 
Virginia Association of Community Health 
Centers v. Sullivan. C.A. 2:89-0330 
(S.D.W.V.) ("[T]he ramifications of the 
implementation of the regulations are 
especially devastating to the obstetrics 
and gynecological community in West 
Virginia in that in the last five years 
the number of obstetricians and 
gynecologists in West Virginia has been 
greatly reduced from 13 0 to 80. The 
regulations would place a heavy burden on 
the remaining obstetricians and 
gynecologist in West Virginia because it 
would force many Centers to close and 
encourage competent physicians to leave 
the State.") See Appendix at 21a f 8 ;  
Affidavit of Leslie Tarr Laurie, Exec. 
Dir. of Family Planning Council of Western 
Massachusetts ("FPCWM"), Commonwealth of 
Massachusetts v. Bowen. 679 F. Supp. 137 
(D. Mass. 1988), aff'd. 899 F.2d 53 (1st 
Cir. 1990) ("[I]f Title X regulations 
banned the co-location of family planning 
with abortion services, FPCWM would be 
forced to terminate family planning 
services in two geographical areas because 
it would not be economically feasible to 
open separate facilities.") See Appendix 
at 45a, f8; Affidavit of Diane M. Booth, 
Exec. Dir., Planned Parenthood of Central 
Missouri ("PPCM"), Commonwealth of 
Massachusetts v. Bowen. 679 F. Supp. 137, 
aff'd, 899 F. 2d 53 (1st Cir. 1990) ("In 
the event that total separation of 
services is reguired at the Columbia 
clinic [the only facility providing first

28



Furthermore, many providers have stated
that they would cease practicing for
ethical reasons, if prohibited from giving
complete and comprehensive medical
information to pregnant patients.
Drisgula Aff. at f 30; Felton Aff. at f
13(c); O'Hora Aff. at f 14.
a. African American and other women of 

color are overrepresented among Title 
X patients and will be dispropor­
tionately affected by any decline in 
services.
This Court has long played an important 

role in the protection against 
administrative intrusion on the interests 
of the disadvantaged. See Yick Wo v. 
Hopkins. 118 U.S. 356 (1886); United
States v. Carolene Products Co.. 304 U.S.

trimester abortion services between Kansas 
City and St. Louis], it is likely that 
PPCM would opt not to receive Title X 
funding, thereby reducing the opportunity 
for low-income people to receive family 
planning services.") See Appendix at 26A, 
5113.

29



144, 152, n.4 (1938). Indeed, 
administrative regulations which impinge 
upon areas of judicial concern —  whether 
or not the restriction or violation has
risen to a constitutional level —  are
entitled to a lesser degree of judicial
deference and are subject to greater
examination. See e.g., Green v. McElrov. 
360 U.S. 474, 508 (1959); United States v. 
Weller, 401 U.S. 254, 257 (1971). Where, 
as in this case, an administrative 
agency's action will disproportionately 
and significantly affect the interests of 
poor African American and other women of 
color, and that action was not authorized 
by Congress, the agency's action should be 
found invalid.

Title X health services are a primary 
source of health care for African American 
and other poor women of color. See Tiezzi

30



Aff. at f 8(a) JA at 726A-727A African 
American women make up only 12.9% of all

,  Qwomen of reproductive age (15-44 years), 

but in 1983, they represented 26% of all 
family planning clinic patients. The Alan 
Guttmacher Institute, Organized Family 
Planning Services in the United States. 
1981-1983 . at 29 (1984) (hereinafter cited 
as Guttmacher, Organized. ) In 1988, an 
estimated 3.74 million women used a Title 
X clinic in their last family planning 
visit during the previous 12 months; of 
these, 28.1% were African American and 
3.2% were other women of color. Mosher, 
W., Use of Family Planning Services in the

Latina women are 7.5% of women of 
reproductive age, other women of color 
3.1%, and white women 76.5%. Forrest, J., 
Gold, R., and Kenney, A., The Need, 
Availability and Financing of Reproductive 
Health Services 3, The Alan Guttmacher 
Institute (1989) (hereinafter cited as 
Forrest, The Need.)

31



United States: 1982 and 1988. at 4, from
Vital Health Statistics of the National 
Center for Health Statistics, No. 184 
(April 1990) (hereinafter cited as Mosher, 
Use.) In 1988, 53% of African American 
women and only 32% of white women used a 
clinic for their most recent family 
planning visit. Id. at 2-3.

African American women are most likely 
to rely on clinics for family planning 
services because they are less likely than 
white women to have health insurance 
coverage, sufficient income to pay the 
fees of private doctors, or a regular 
source of medical care. Id. at 3 and n.4. 
Overall, 22% of African American and 33% 
of Hispanic, Asian/Pacific Island and 
Native American female heads of families 
are uninsured, compared to 15% of white 
female heads of families. Children's

32



Defense Fund, Black and White Children in
America;______ Key Facts 27-29 (1985)
(hereinafter cited as CDF, Key Facts.1
Further, in 1986, 26. 4% of African
American children under age 18 were
uninsured, compared to 17.5% of white
children of the same age who were
uninsured.

Indeed, while low-income women in 
general were much more likely than higher 
income women to rely on clinics for their 
family planning services, African American 
women of all incomes relied heavily on 
these services. For example, in 1988, 60% 
of all low-income women used clinics for 
their most recent visit, compared with 
only 27% of all women with incomes of 150% 
of poverty or more, while among African 
American women, 67% of low-income and 41% 
of higher income African American women

33



used family planning clinics. Mosher, 
Use. supra. at 3-4.

b. The new regulations will reduce 
services for low-income women and teens 
who lack health coverage and rely on 
family planning clinics.
Access to health care is determined by

one's economic and employment status.
Nonelderly individuals and families who
rely on public benefit programs, such as
Aid to Families with Dependent Children
(AFDC) for their sole source of income are
eligible for medical coverage through the
federally funded Medicaid program.10 Among

women aged 15-44, with family incomes
below the federal poverty standard, four
in ten depend on Medicaid for access to
medical care. Fewer than one in ten women
with slightly higher incomes (100-199% of

10 See, 42 U.S.C. §§ 1396 et sea.
1982 ed.

34



poverty) and only two percent of higher 
income women are covered by Medicaid or 
other public programs. Forrest, The Need. 
supra. at 18. Regrettably, more than one- 
third of women between 15-44 years of age 
and below 100% of poverty have no health 
insurance coverage. Id. Among teenaged 
women aged 15-19, 20% are not covered by 
insurance. Id. Congress intended the 
Title X program to serve the many low- 
income women who cannot afford alternative 
sources of health care.11

Nationwide, in 1983, an estimated 83% 
of family planning program patients had 
low incomes (below 150% of poverty), 
including 13% who received public 
assistance. Guttmacher, Organized. supra.

11 Under the Act, low-income patients 
are to receive free services, 42 U.S.C. § 
300a-4(c), and charges for others are 
determined by family income on a sliding 
fee basis.

35



at 25. AFDC recipients often use Title X- 
funded family planning clinics, as well as 
private doctors who accept Medicaid 
patients for contraceptive and general 
medical services and referrals.12

An estimated 1.6 million women under

12 Studies have shown that even when 
Medicaid is made available to those who 
need assistance, many physicians and 
providers are unwilling to accept Medicaid 
eligible patients, due to lower than 
private pay reimbursement rates, 
bureaucratic red tape, and other factors. 
G. Dallek, Health Care for America's Poor: 
Separate and Unequal. 20 Clearinghouse 
Rev. 361, 366 (1986) (citing studies) .

HHS recognizes the disproportionate 
dependence of people of color on federally 
funded health care services. HHS has 
noted that certain health care providers' 
policies that limit access to care based 
on patients' status as Medicaid recipients 
may have a disproportionate racial impact 
in violation of Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. §2000d. See 
Internal Memorandum, U.S. Dept, of Health, 
Education, and Welfare, Office of Civil 
Rights, from David F. Chaukin to Carolyn 
Russell (Dec. 11, 1980). Such impact is 
certainly present in this case, because of 
the heavy reliance of women of color on 
Title X-funded programs.

36



age 20 obtained family planning services
from organized clinics in 1983, 
constituting more than 30% of all clinic 
patients. Guttmacher, Organized. supra. 
at 28. African American teenagers, in 
particular, rely heavily on clinic 
services. In 1988, 40.9% of all African 
American teenagers aged 15-19 had visited 
a family planning clinic within the last 
12 months. Mosher, Use. supra. at 2.

African American teens are twice as 
likely as white teens to become pregnant.13 

Seventy-three percent of all pregnancies 
to African American teens between the ages 
of 15 and 19 were unintended in 1980, 
compared with 63% of unintended

CDF, Key Facts, supra. at 39. 
Teenage births accounted for approximately 
one-quarter of all births to African 
American mothers and 12% of all births to 
white mothers. Id. at 38.

37



Of 10,200pregnancies among white teens, 

births to mothers under age 15 in 1986, 
58% of the mothers were African American, 
39% white and 13% Hispanic. Children's 
Defense Fund, A Vision for America's 
Future: An Agenda for the 1990's: A
Children's Defense Fund Budget 93 (1989)
(hereinafter cited as CDF, A Vision.) An 
essential prevention strategy for those 
teens who are sexually active is access to 
contraceptive services and counseling. If 
the challenged regulations are approved, 
African American teens will suffer 
disproportionately from reduced access to 
clinics and contraceptive information and 
services.

14

Thirty-nine of 100 African 
American teens with unintended pregnancy 
actually have a baby, compared with 25 out 
of 100 white teens. CDF, Key Facts, 
supra. at 39.

38



2. The requirement that services be 
segregated will impede the provision of 
care to intended beneficiaries.

The requirement that various family 
planning services be segregated will 
result in delayed or no follow-up services 
for many patients. Moreover, for poor 
women the segregation of services will 
mean incurring the often prohibitive 
expense of traveling to additional 
locations for needed health care. Most 
importantly, as stated above, many clinics 
will be forced to close because of the 
additional costs associated with 
physically separating related services. 
See Moran Aff. at f 8.

The closure of clinics and even the 
elimination of existing programs will 
reduce access to abortion services, 
prenatal care and other vital medical 
services for clinic patients. In sum, the

39



physical segregation of family planning 
from abortion-related services will serve 
to disadvantage the very population that 
Title X is designed to serve and will 
compromise the health care provided by the 
clinics. Congress did not intend such a 
result.

3. The counseling and referral 
prohibitions of the new regulations 
will undermine the provision of 
reproductive health care to all 
pregnant patients and may endanger the 
lives of African American and other 
women of color with serious health 
conditions.

The new Title X regulations will have 
an adverse effect on the health of poor 
pregnant patients, whether or not they 
wish to terminate their pregnancies. 
Clearly, under the new regulations, women 
of color will be steered away from 
abortion. Without a referral from the 
Title X clinic, some women will be unable

40



to locate and obtain abortion services
until later, more dangerous stages of 
pregnancy. Indeed, the mortality risk for 
abortion increases 50 percent with each 
week after the eighth week of pregnancy, 
and the risk of major complications in the 
procedure increases by approximately 30 
percent per week. See Morley Aff. at f12; 
JA at 662A. See also Grimes, Second- 
Trimester Abortions in the United States. 
16 Fam. Plan. Persp. 260-265 (Nov./Dec. 
1984). The dangers are particularly acute 
for adolescents, who most often postpone 
pregnancy confirmation and abortion until 
the second trimester of pregnancy. See 
Henshaw Aff. at fl4; Morley Aff. at f 12.

Without adequate information, other 
clinic patients will self-induce abortion 
or seek illegal back street abortions at 
great risk to their life and health. In

41



1970, prior to the enactment of Title X, 
it was reported that "botched abortions 
[were] the single largest cause of 
maternal deaths in the U.S." Statement of 
Rep. Chisholm, supra, at 195.

Even pregnant patients who wish to 
carry pregnancy to term will be injured by 
the new regulations. Early prenatal care 
is the key to ensure a healthy and safe 
pregnancy for both the mother and child.15 

A lack of prenatal care can result in low- 
birth weight babies,16 infant mortality,17

Gold, R. , Kenney, A. , and Singh, 
S., "Paying for Maternity Care in the 
United States" 19 Family Planning 
Perspectives 190 (No. 5, Sept./Oct. 1987).

16 Low birth weight is defined as 
less than 5.8 pounds and is a leading 
cause of infant death. Small babies who 
survive face an increased risk of being 
impaired for life by autism, retardation, 
cerebral palsy, epilepsy, learning 
disabilities and vision or hearing loss. 
CDF, A Vision, supra. at 38.

In 1982, 6.2% of all Native American
42



Yet theand maternal mortality.18 

challenged regulations interfere with the 
kind of integrated services that

babies born were of low birth weight, 
compared to 6.9% of all Filipino babies, 
9.1% of all Puerto Rican babies, 12.4% of 
all African American babies and 5.6% of 
all white babies. HHS, Office of Minority 
Health, Closing the Gao. "Infant 
Mortality, Low Birth Weight and 
Minorities" 1 (1988).

In 1987, the infant mortality 
rate per 1,000 live births was 5.4% for 
Asians, 7.9% for Hispanics, 8.6% for 
whites, 9.9% for Native Americans and 
17.9% for African Americans. National 
Commission to Prevent Infant Mortality, 
Troubling Trends: The Health of America's 
Next Generation 20 (1990).

18 In 1986, African American women 
were 3.8 times more likely to die from 
pregnancy causes than white women. Non­
white women were 3.3 times more likely to 
die from pregnancy related causes than 
white women. The leading causes for these 
maternal deaths are considered 
"preventable or probably preventable 
through routine medical care before 
pregnancy, early and continuous prenatal 
care, risk appropriate delivery 
procedures, and routine care after birth." 
Children's Defense Fund, The Health of 
America's Children: Maternal and Child 
Health Data Book 10 (1989).

43



facilitate enrollment in family planning 
and counseling programs.

The new regulations expressly state 
that once a patient is diagnosed as 
pregnant, she is no longer eligible to 
receive Title X subsidized services. 42 
CFR §59.8 (a) (2) .

Although it is uniformly accepted that 
responsible pregnancy testing must include 
options counseling, particularly when the 
pregnant patient is an adolescent, the 

new regulations prohibit such counseling 
and referrals. Under the new * 20

See. e . g . . Morgan Decl. at 653A.
20 Dr. Joseph D. Beasley, who 

testified before the Senate Subcommittee 
on Health, and whose study on the success 
of the Louisiana Family Planning Program 
was cited with approval by almost every 
Congressperson who testified in support of 
Title X, listed "referral to other medical 
services" as an essential component to any 
successful family planning program. 
Hearings on S. 2108 Before Subcomm. on 
Health of the Senate Comm, on Labor and

44



regulations, the patient may receive only 
a list of prenatal care facilities and 
general information about the preservation 
of fetal life. 42 CFR §59.8(2).

Limiting the information that pregnant 
patients may receive will delay poor women 
in obtaining prenatal care and in locating 
alternative services. Under current 
practice, most Title X providers 
immediately refer pregnant patients who 
wish to carry to term to a prenatal care 
service, often located in the same 
building as the family planning program. 
See Rust Decl. at 699A, Bennett Decl., at 
495A, Tiezzi Decl. at 725A. In many 
cases, the Title X health provider will 
make the first prenatal care appointment 
for the patient to ensure that the patient

Public Welfare, 91st Cong., 1st Sess. 
(Dec. 8, 1969) at 77.

45



follows through with care. The new 
regulations forbid this type of 
assistance.

Title X providers will not be permitted 
to inform pregnant patients which 
facilities in their professional judgment 
are superior. Because of her pregnancy, 
the poor woman or teen must be virtually 
abandoned by the Title X provider, even if 
she has enjoyed an ongoing relationship 
with the program as a family planning or 
counseling patient.

The mere provision of a list of 
prenatal care facilities is inadequate to 
ensure that pregnant adolescents will 
obtain prompt prenatal care. See, e.q. . 
Tiezzi Decl. at f 8(a)-(c); JA at 726- 
28A. In fact, providing such a list 
without additional counseling and 
information will almost always result in

46



delaying the adolescent's enrollment in a
prenatal care program. Teens are often 
ill-eguipped to navigate complicated 
social services systems, and are most 
prone to delay seeking follow-up health 
care. See Bennett Aff. at f 12. JA at 
498A. Impressionable teens who experience 
unintended pregnancy need nonjudgmental 
counseling "to inform them of all their 
options for pregnancy resolution and the 
associated risks and benefits of each -- 
abortion, parenthood, and adoption." 
National Academy of Sciences, Risking the 
Future, 1-2 1987.

For many pregnant adolescents who wish 
to carry their pregnancies to term, time 
is of the essence. Pregnant adolescents 
often suffer particular physical, social, 
and economic consequences of pregnancy. 
See Rosenfield Aff. at f 17(a). For

47



example, maternal mortality, toxemia, 
anemia, premature childbirth and low 
birthweight occur at significantly higher 
rates for pregnant women under the age of 
15 as compared to those 20-24 years of 
age. See Morley Aff. at f 6; JA at 685A. 
Rosenfield Aff. at f 17; JA at 685A. 
Medical risks are increased by the delay 
in prenatal care that the new regulations 
will create. See. e. q. . Bennett Decl.; JA 
at 500A.

Lack of prenatal care is a particularly 
serious problem for poor African American 
and Hispanic communities. African 
American babies are twice as likely as 
white babies to be born to mothers who 
received late prenatal care or delivered 
their babies without having ever had a 
prenatal examination. CDF, Key Facts, 
supra, at 76. Almost one African American

48



baby out of ten is born to a mother who 
received late or no prenatal care. id. 
Among African American teenage mothers 
under age 15, the proportion increases to 
two in ten. Id. Nearly 13% of Hispanic 
babies are born to mothers who received 
late or no prenatal care, compared to 4% 
of white babies.21

a. A disproportionate number of African 
American and other women of color 
suffer from serious health conditions 
that are exacerbated by pregnancy and 
will be at great risk under the new 
regulations.
Limiting the information that pregnant 

patients receive may have fatal 
conseguences for patients who suffer from 
diseases that are exacerbated by 
pregnancy. African American and other 
women of color suffer disproportionately

Children's Defense Fund, The 
Health of America's Children: Maternal and 
Child Health 13 (1988) .

49



from a variety of serious health 
conditions, such as high blood pressure, 
hypertension, diabetes, and certain 

forms of cancer,* 23 24 which may be exacerbated 

by pregnancy. These women will face long­
term health risks, or even death, when

Of women ages 25-44, from 1979- 
81, hypertension was prevalent 2.6 times 
more often in African American women than 
in white women. HHS, I Report of the 
Secretary's Task Force on Black and 
Minority Health 75 (1985) (hereinafter 
cited as HHS, Task Force.1

23 HHS, Task Force. supra. at 75. 
African American women have a 50% greater 
incidence of diabetes than their white 
female counterparts. Native American 
women are ten times more likely than white 
women to have diabetes. Hispanic women 
who reside in poor urban areas or barrios 
were four times more likely to become 
diabetic than Hispanic women who reside in 
the suburbs. HHS, Office of Minority 
Health, Closing the Gap. "Diabetes and 
Minorities" 2 (1988).

African Americans, Hawaiians, 
Chinese, and Native Americans are at the 
greatest risk for cervical cancer. Id. at 
3 .

50



Title X health practitioners fail to 
counsel them about the options for 
handling the risks of a continued 
pregnancy.

In some cases, continuation of 
pregnancy for women suffering from these 
illnesses may carry grave health 
consequences for both mothers and their 
fetuses. Chronic hypertension, for 
instance, may lead to a stroke during 
pregnancy.25 in fact, hypertension is 

associated with up to 30% of maternal 
deaths and up to 22% of perinatal deaths.26

Stroke deaths are higher among 
African Americans than among whites. HHS, 
Task Force. supra. at 110. See,
Rosenfield Aff. at fll; JA at 683A.

Both hypertension and diabetes can be 
controlled with proper medical treatment. 
Id. at 74. Nonetheless, hypertension 
accounted for more than 5% of excess 
African American deaths. Id. at 74.

n c. Task Force at 110. Rosenf ield 
Aff. at fll; JA at 683A.

51



Pregnant diabetics run the risk of 
exacerbating debilitating vascular 
changes. See Rosenfield Aff. JA at 683A.

Certain forms of cancer are also more 
prevalent among women of color than 
whites. The mortality and incidence rates 
for cervical cancer, for example, are 
approximately 2.5 times higher for African 
American women than white women. HHS, 
Task Force supra. at 92. Continued 
pregnancy for these women may be life 
threatening.

Pregnant women with sickle cell anemia, 
a disease endemic to people of African 
descent,27 may go into sickle cell shock 

and die as a result of pregnancy. Rust 
Decl. at f 17 (a)-(b); JA at 705A-706A.

27 50,000 African Americans have 
sickle cell anemia. Association for 
Sickle Cell Services Education Research 
and Treatment, Inc. Sickle Cell Anemia: A 
Family Affair (1988).

52



Perinatal mortality and spontaneous 
abortion are also risks to pregnant sickle 
cell patients. Rosenfield Aff. at f 14; 
JA at 684A. Failure to provide such 
patients with the full range of 
information and options related to their 
medical condition and their pregnancy 
violates the most basic standards of 
medical practice.

Pregnant women who are HIV-positive 
must also be apprised of the full range of 
pregnancy options and provided with more 
than a referral list to prenatal care 
providers. Tragically, Acquired Immune 
Deficiency Syndrome (AIDS) has dispropor­
tionately impacted women of color and 
their newborn infants. The incidence of 
AIDS in Latina women is almost 11 times

53



• 2 8that of white women. Women account for 

13% of all Latino AIDS death since 1980.29 

Fifty-two percent of all women with AIDS 
are African American, as are 59% of all 
children with AIDS under thirteen years 
old.30

A pregnant patient must be told of the 
risks to her health and to that of her 
child, particularly since pregnancy may 
accelerate the progression of HIV disease, 
AIDS and AIDS-related complex. See Minkoff 
Aff. at f  7; Rust Decl. at fl7(a); JA at 
7 05A. A pregnant woman who tests HIV­
positive should be counseled on how to 
protect herself and her partner. In some

2 8 Worth, D. and Rodriguez, R. , 
"Latina Women and AIDS," SIECUS Report 
Jan.-Feb. 1987 at 5.

29

30
Id.

Weston, G., "AIDS in the Black
Community," Au Courant. Fall 1986.

54



cases, it may be appropriate for the 
health provider to arrange an appointment 
for the patient at the appropriate 
referral agency, and provide the patient 
with information about support groups. 
The new Title X regulations contemplate 
abandoning such a patient, because as a 
pregnant woman, she is ineligible for 
Title X services.

Restrictions on the dissemination of 
medical information to poor women with 
grave health problems who use Title X 
facilities is particularly harmful since 
these women lack alternative sources of 
reliable health information. Withholding 
critical health information from poor 
pregnant women will sentence some women to 
death and others to long term health 

problems.

55



CONCLUSION
For the foregoing reasons, the judgment 

of the Second Circuit should be reversed.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
SHERRILYN A. IFILL 
MARIANNE ENGELMAN LADO 
CHARLOTTE RUTHERFORD 

99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

Counsel for Amici Curiae
*Counsel of Record
July 27, 1990

56



APPENDIX



la

INTEREST OF AMICI CURIAE 
THE NAACP LEGAL DEFENSE & EDUCTIONAL 

FUND, INC. ("LDF") is a non-profit 
corporation formed to assist African 
Americans to secure their constitutional 
and civil rights and liberties. For many 
years LDF has pursued litigation to secure 
the basic civil and economic rights of 
low-income African American families and 
individuals. Litigation to ensure the 
non-discriminatory delivery as well as the 
adequacy of health care and hospital 
services available to African American 
communities has also been a long-standing 
LDF concern. See e.g.. Brvan v. Koch, 627 
F. 2d 612 (2d Cir. 1980) (Challenging the
closing of Sydenham public hospital in 
Harlem under Title VI of the Civil Rights

Act of 1964) . LDF has also worked on



2a
behalf of African Americans struggling 
with the burden of poor health and 
discriminatory and inadeguate healthcare 
services.

LDF is particularly concerned with the 
growing rates of poverty among African 
Americans and with the number of single 
female-headed African American families 
that are living in poverty. LDF' s Black 
Women's Employment Program strives to 
remove obstacles to employment in 
occupations where African American women 
are underrepresented and to provide access 
to jobs with better wages, decent 
comditions, and pension and health 
benefits. Health care for low-income 
uninsured women and their families is a 
matter of great concern to LDF. Through 
its Poverty & Justice Program, LDF is 
challenging the barriers to economic



3a
advancement to help to improve the 
economic status and living conditions of 
the many in poverty.

This case implicates the full panoply 
of these important LDF concerns. It 
involves constitutional and statutory 
challenges to new regulations which 
prohibit federally-funded family planning 
clinics from providing abortion 
information services and referrals. These 
clinics' services are restricted to low 
and moderate income persons, a 
disproportionate number of whom are 
African American or are other women of 
color.

Limitations on the types of 
reproductive information and services 
provided by these clinics will 
disproportionately limit the range of 
reproductive options available to women of



4a
color. This in turn will increase the 
number of unwanted pregnancies and promote 
continuing cycles of poverty and despair, 
while creating unnecessary medical risks 
for women of color.

For these reasons, LDF has filed this 
brief Amicus Curiae in support of 
petitioners' challenges to the validity of 
the new Title X regulations.

*  *  *

THE MEXICAN AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND (MALDEF) established in 
1967, is a national civil rights 
organization headquartered in Los Angeles. 
Its principle objective is to secure, 
through litigation and education, the 
civil and constitutional rights of 
Hispanics living in the United States. 
Fundamental among those rights is the 
right to privacy which encompasses the



5a
right to choose in matters of family 
planning. That right to choose is at issue 
in this case for the vast numbers of low 
income Hispanic Women who rely on 
federally-funded family planning clinics.

k k k

THE NATIVE AMERICAN COMMUNITY BOARD, of 
South Dakota, works for the advancement of 
Native American women by working on issues 
pertinent to health education, economic 
development, and treaty rights. The NACB 
also organizes women in self-help 
development and coalition building 
concerning reproductive rights. The NACB 
is a reservation based organization 
working with Native women locally, 
r e g i o n a l l y ,  n a t i o n a l l y  and 
internationally. The NACB serves 
reservation based Native American women.



6a
We promote equality of health care, access 
to health care and believe that Native 
American Women should have access to true 
and concise information in order to be 
able to make appropriate decisions 
regarding their lives. By denying or 
withholding certain information to women 
can only compromise a life. Native 
American women suffer with high rates of 
diabetes, high blood pressure, TB, and 
other conditions which are life 
threatening especially when complicated 
with pregnancy.

*  *  *

THE NATIONAL URBAN LEAGUE founded in 1910, 
is the premier social service and civil 
rights organization in America. The 
League is a non-profit, community based 
agency headquartered in New York City, 
with 114 affiliates in 34 states and the



7a
District of Columbia. Its principal 
objective is to secure equal opportunity 
for African-Americans and other minorities 
in every aspect of American life. The 
National Urban League supports full access 
to comprehensive reproductive health 
services for African-American women and 
their families. The Title X Program also 
represents a key source of primary health 
care for low-income African-American 
women.

* * *

THE BLACK, ASIAN PACIFIC, HISPANIC, AND 
NATIVE AMERICAN CAUCUSES OF THE NATIONAL 
WOMEN'S POLITICAL CAUCUS is a bi­
partisan, grassroots, membership based 
organization dedicated to political 
representation and full participation of 
all women in government and community 
life. The Asian Pacific, Black, Hispanic



8a
and Native American Caucuses are deeply 
concerned with women's fundamental right 
to choose abortion, particularly women in 
poor communities who already suffer from 
inadequate and restricted access to health 
care services.

*  *  *

THE WOMEN OF COLOR PARTNERSHIP PROGRAM OF 
THE RELIGIOUS COALITION FOR ABORTION 
RIGHTS, located in Washington, D.C., is a 
national effort to educate women of color 
concerning public policies surrounding the 
issue of reproductive choice and its 
disproportionate affect on women of color. 
As the injustices of racism, sexism and 
classism engulf the day-to-day choices 
available to African-American, Latin 
American, Native American and 
Asian/Pacific American women, access to 
reproductive health care affectrs every



9a
element of our lives. This program seeks 
to identify and address not only 
reproductive rights issues but also 
reproductive health care concerns from the 
unique perspectives of women of color to 
include: (1) the right to choose or not 
to choose abortion; (2) family planning 
and all methods of birth control; (3) teen 
pregnancy; (4) prenatal care; (5) child 
care; and (6) medical abuses against women 
of color.

This organization is extremely 
concerned about the continued existence 
and perpetuation of illegal abortions, 
sterilization abuse, forced Caesarian 
sections, the use of Depo-provera, and the 
lack of sufficient prenatal care for women 
of color. The economics of this country 
dictates that the "haves" may choose to 
purchase whatever health services they may



10a
need or want. The "have nots" hold very 
few choices in their lives and in many 
instances must rely on the federal 
government. We are concerned about the 
numerous public policies which create a 
negative impact on the ability of women of 
color to make a difficult decision, the 
unnecessary sacrifices that she and her 
family may have to make because of a lack 
of resources and the degradation that she 
must undergo to carry out her decision. 
We believe that all women, regardless of 
race or class, should have access to a 
safe and legal abortion. Lastly, we 
believe that the right to choose abortion 
is a personal decision to be respected and 
made in consultation with a woman's 
doctor, her family with spiritual guidance 
but without governmental interference.

* * *



11a
THE AMERICAN INDIAN HEALTH CARE 
ASSOCIATION promotes the health status of 
Native Americans by supporting overall 
improvement of health care. AIHCA 
represents 36 urban Indian health 
programs, which provide health services to 
Native Americans living in urban areas. 
Native American women are amongst the 
poorest groups in the nation. Financial 
barriers to health care have contributed 
to decreased access and poorer health. It 
is important that Native American women 
retain options in their pre-natal health 
care and family planning activities. High 
rates of teenage pregnancy and 
concommitantly, increased infant mortality 
can only be exacerbated by decreased 
access to Title X funded program.

•k ^  "k



12a
THE MEXICAN AMERICAN WOMEN'S NATIONAL 
ASSOCIATION of Washington, D.C. is 
committed to improving the quality of life 
for all Hispanic women.

* * *

UNITED CHURCH OF CHRIST OFFICE FOR CHURCH 
IN SOCIETY. Standing in the Hebrew 
Christian tradition we affirm God as the 
server of life, our life, all life, life 
to the fullest. She has called us to 
share the world of Creation with her, 
giving us the privileges and 
responsibilities of fellowship in the 
wider units of society. Thus, we affirm 

the freedom with which God endowed men and 
women, but we affirm and receive this as a 
freedom bound to responsibility. At its 
best our Western legal tradition as well, 
has served the dual purpose of protecting 
human freedom and helping human beings to



13a
discharge their responsibilities to one 
another.

Our religious heritage has also 
stressed reverence for human life. 
Accordingly, the enhancement of human life 
and the protection of the rights of 
persons, particularly those who are 
oppressed because of their race, sex or 
class. As an agency of the United Church 
of Christ, we find it neither likely or 
desirable that organized society would 
disavow its responsibility in this regard.

★  "k  -k

THE NATIONAL INSTITUTE FOR WOMEN OF COLOR 
(NIWC) is a non-profit, public interest 
organization dedicated to helping women of 
color achieve eguity in all aspects of 
U.S. society, most particularly in 
educational attainment and economic
achievement. Women of color (i.e.,



14a
Hispanic, African American, Asian 
American, Pacific Islander, American 
Indian, or Alaska Native) are 
disproportionately represented among low- 
income and public assistance clients and, 
therefore, have little option but to use 
publicly funded family planning clinics. 
Women of color, disadvantaged by economic 
status caused by race/ethnicity and gender 
discrimiantion, are disadvantaged again 
when pregnancy is diagnosed in a clinic 
funded under Title X. Moreover, because 
this population often suffers from poor 
nutrition, unattended health conditions, 
and multiple disabilities (hypertension, 
Sickle Cell Anemia, for example), the risk 
of carrying a pregnancy full-term may 
endanger the mother's life. Certainly, 
the potential of greater economic distress 
brought on with the unintended birth of a



15a
child is another type of hazard. In 
effect, the restrictive regulations for 
Title X place women of color in the 
greatest jeopardy. NIWC recognizes this 
jeopardy as an issue related to its 
mission and thereby wishes to lend its 
support through the amicus brief.

k k k

THE NATIONAL BLACK WOMEN'S HEALTH PROJECT 
is a health, education and advocacy 
organization that works to improve the 
guality of life for African American 
women. It works to promote non- 
discriminatory approaches to insure that 
all African American women have access to 
health services, including abortion, that 
maximize maternal health, reduce infant 
mortality and produce healthy babies. 
Because poor African American women are 
particularly vulnerable to economic



16a
hardship, the impact of restrictions on 
health services will be particularly 
severe for them.

*  *  *

THE NEW YORK CITY COMMISSION ON HUMAN 
RIGHTS ("The Commission") is a local 
administrative agency charged with 
eliminating all prohibited forms of 
discrimination within the City of New 
York, including race, national origin and 
age discrimination in access to health 
services. N.Y.C. Admin. Code Sec. 8-101 
et seq. The Commission adjudicates claims 
of discrimiantion in access to pblic 
accommodations under local law.

The Commission takes seriously its 
public charge that all women in New York 
be afforded full access to guality health 
services free from discrimination on the 
basis of race, national origin and age.



17a
Thus, the commission is deeply concerned 
about the ways in which restrictions on 
Title X funding would disproportionately 
limit the access of young women of color 
to full and complete health care.

*  *  *

THE NATIONAL MEDICAL ASSOCIATION, founded 
in 1895, represents 16,000 Black 
physicians in the United States, including 
Puerto Rico and the Virgin Islands. The 
National Medical Association seeks to 
foster the enactment of just medical laws 
and to educate the public concerning all 
matters affecting public health, 
especially matters affecting the socio­
economically disadvantaged and the health 
care of women. The National Medical 
Association supports the common struggle 
for reproductive choice and the equality
of women.



18a

UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
WEST VIRGINIA ASSOCIATION OF )
COMMUNITY HEALTH CENTERS, )
ET AL. )

)Plaintiffs, )
)

v. ) C.A .
)

LOUIS SULLIVAN, SECRETARY, )
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )

)Defendant. )
_________________________________)

AFFIDAVIT
I, Bruce Berry, M.D., depose and say:
1. That I am Vice Chairman of the

West Virginia Section of District 4
American College of Obstetricians and
Gynecologists ("ACOG").

2. That I have been Vice Chairman
since 1986, and an active member in ACOG 
since 1973 as a Junior Fellow and a Fellow



19a
since 1978, and board certified in 
obstetrics and gynecology since 1978.

3. That I submit this affidavit in 
support of the motion to enjoin 
implementation of regulations promulgated 
by the United States Department of Health 
and Human Services under Title X of the 
Public Health Service Act. I submit this 
affidavit in my capacity as the Vice 
Chairman of the West Virginia Section of 
District 4 of ACOG, a National medical 
association of more than 27,000 physicians 
specializing in the delivery of health 

care to women.
4. That the West Virginia Section of 

ACOG has taken a position against 
implementation of the previously described 
regulations, and that the position of the 
West Virginia Section is the same as that 
set forth by the affidavit of George W.



20a
Morely, President of American College of 
Obstetricians and Gynecologists.
CCommonwealth of Massachusetts v. Otis 
Bowen. United States District Court for 
the District of Massachusetts, Civil 
Action No. 88-0253-S, February 9, 1988), 
which is attached and herein incorporated.

5. That if Title X regulations 
prohibit post-pregnancy counseling, or 
clinics lose their Title X funding, many 
poor teenage family planning clients would 
not have available to them a full range of 
pregnancy counseling services including 
options counseling. Thus denied complete 
medical care, such clients would be 
deprived of the benefits of Title X Public 
Health Services previously delivered.

6. That given the demographics of 
West Virginia, to the extent that any 
Title X clients would have sought abortion



21a
services, the provisions of these services 
will be thwarted altogether or delayed to 
a more hazardous stage of a woman's 
pregnancy.

7 . That given my understanding of who 
could be on the referral list, it appears 
that a doctor would feel an obligation to 
counsel a pregnant women on all her 
options, including abortion, that that 
doctor could not be on the referral list 
and that would caused a great ethical 
concern for the physicians in the 
community.

8. That the ramifications of the 
implementation of the regulations are 
especially devastating to the obstetrics 
and gynecological community in West 
Virginia in that in the last five years 
the number of obstetricians and 
gynecologists in West Virginia has been



22a
greatly reduced from 13 0 to 80. The 
regulations would place a heavy burden on 
the remaining obstetricians and 
gynecologist in West Virginia because it 
would force many Centers to close and 
encourage competent physicians to leave 
the State.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 22nd day of March, 1989.

/s/ Bruce Berry. M.D. 
Bruce Berry, M.D.



23a

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS,)
ET AL. )

)Plaintiffs, )
)v. ) C.A .
)OTIS R. BOWEN, SECRETARY, U.S.) 

DEPARTMENT OF HEALTH AND HUMAN) 
SERVICES )

)Defendant. )
__________________________________)

AFFIDAVIT
I, Diane M. Booth, depose and says:
1. That I am the Executive Director 

of Planned Parenthood of Central Missouri 
("PPCM").

2. That I have served in this 
position for fifteen months.

3 . That PPCM receives money under the 
U.S. Department of Health and Human 
Services' Title X family planning services



24a
program as a delegate agency of the 
Missouri Community Health Corporation.

4. That the Title X funding in fiscal
year 1987 represented seventeen percent 
(17%) ($168,000) of PPCM's operating

budget.
5. That PPCM operates four clinics - 

- in Columbia, Jefferson City, Fulton, and 
Moberly -- covering ten counties.

6. That the Columbia clinic that 
provides a full range of family planning 
services also provides abortion services 
as well as housing PPCM's administration 
offices.

7. That the Columbia clinic is the 
only facility providing first trimester 
abortion services between Kansas City and 
St. Louis.

8. That the Columbia facility 
consists of one building, with one waiting



25a
room, one reception area, one laboratory, 
one parking lot, and one entrance in 
operation (there is a second entrance to 
the building that is not in use).

9. That the Medical Director of PPCM 
provides abortion services at the Columbia 
clinic, and that some of the health 
professional staff also rotate between 
family planning and abortion services.

10. That PPCM has one personnel, 
accounting, and payroll system for all of 
its operations.

11. The PPCM currently prevents Title 
X funds from being used to fund abortion 
services by requiring staff to keep 
detailed time sheets and by allocating 
program income used for overhead costs by 
a cost allocation plan.

12. That if it were a requirement of 
the Title X program that abortion services



26a
be totally separated (including total 
physical separation), PPCM would be forced 
to find another building for its abortion 
services, hire new staff, and reconfigure 
its administrative systems —  an extremely 
expensive venture.

13. In the event that total 
separation of services is required at the 
Columbia clinic, it is likely that PPCM 
would opt not to receive Title X funding, 
thereby reducing the opportunity for low- 
income people to receive family planning 
services.

14. That discussions with a number of 
the health care professionals on my staff 
indicate that they believe a ban on post­
pregnancy counseling would force them to 
violate their medical ethics as well as 
expose them to medical malpractice 
liability.



27a
15. That it would be impossible for 

PPCM to run a Title X program with a ban 
on post-pregnancy counseling in place 
because my staff would refuse to work 
under those conditions.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 14th day of December 
1987 .

/s/ Diane M. Booth 
Diane M. Booth



28a

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS,)
ET AL. )

)Plaintiffs, )
)v. ) C .A .
)OTIS R. BOWEN, SECRETARY, U.S.)

DEPARTMENT OF HEALTH AND HUMAN)
SERVICES )

)Defendant. )
-_________________________________________________________________)

AFFIDAVIT
I, Karen Cody Carlson, depose and say:
1. That I am the Executive Director 

of Planned Parenthood of Greater Kansas 
City ("PPGKC").

2. That I have served in this 
position for two years and three months.

3 . That PPGKC receives money under 
the U.S. Department of Health and Human 
Services' Title X family planning services



29a
program as a delegate agency of the 
Missouri Community Health Corporation.

4. That the Title X funding in fiscal 
year 1987 represented nine percent (9%) 
($200,000) of PPGKC's operating budget.

5. That approximately 65% of the 
15,000 clients seen last year received at 
least some subsidization under Title X.

6. That PPGKC operates four clinics 
covering the Kansas City metropolitan area 
and another clinic in Warrensburg, 
approximately 50 miles away.

7. That the largest of the Kansas 
City clinics provides a full range of 
family planning services as well as 
abortion services up to fourteen weeks of 
pregnancy.

8. That the Medical Director of PPGKC 
performs abortions in the Kansas City 
clinic, and several of the professional



30a
staff rotates between family planning and 
abortion services.

9. That the co-located facility 
consists of one building, with one waiting 
room, one reception area, and one entrance 
in operation.

10. That PPGKC has one personnel, 
accounting, and payroll system for all of 
its operations.

11. That PPGKC currently prevents 
Title X funds from being used to fund 
abortion services by requiring clinic 
staff to keep detailed time records and by 
allocating overhead costs by budget and 
square footage as well as the salary for 
the Director of Patient Services by either 
budget or actual time spent on either 
service.

12. If the Title X regulations 
required that abortion services be totally



31a
separated (including total physical 
separation), PPGKC would be forced to find 
another building for its abortion 
services, hire new staff, and reconfigure 
its administrative systems —  an extremely 
expensive venture.

13. In the event that total separation 
of services is required, it is very likely 
that PPGKC would opt not to receive Title 
X funding and require all patients to pay 
at least a partial percentage of the 
shares for services, thereby reducing the 
opportunity for low-income people to 
receive family planning services.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 18th day of December 
1987 .

I s /  Karen Cody Carlson 
Karen Cody Carlson



32a

UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
WEST VIRGINIA ASSOCIATION OF )
COMMUNITY HEALTH CENTERS, )
ET AL. )

)Plaintiffs, )
)

v - ) C.A .____
LOUIS SULLIVAN, SECRETARY, j 
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )

)Defendant. )
— ______________________________ )

AFFIDAVIT
I, Catherine Groom, depose and say:
1. That I reside at 1415 Third

Avenue, Charleston, West Virginia 25312.
2 . That I am 25 years of age and have

been a patient at the Women's Health
Center of West Virginia, Inc (the
"Center" ) since 1983.

3 . That my expectation has always
been that I would receive the same



33a
treatment at the Center as I would from a 
private gynecologist.

4. That part of that expectation as 
to service if it was determined that I was 
pregnant, would be discussions with a 
counselor about the health consequences of 
my pregnancy, what my options and 
alternatives are, and where I could go for 
further treatment. I am especially 
concerned about the regulations because it 
is my understanding that I may be at risk 
to have another child. If I were to 
become pregnant, I would want immediate 
counseling about my options.

5. That if I were told that I was 
pregnant and was then simply handed a list 
of prenatal health care providers with no 
explanation or discussion, I would have no 
way of evaluating the names on that list 
and would have no idea which name I should



34a
go to see for counseling and information. 
I would feel frustrated and mad.

6. That I have in the past 
recommended to people whom I know that 
they use the Center precisely because the 
staff at the Center provides complete 
information and counseling to people with 
low incomes.

7. That if the Center no longer were 
to provide post-pregnancy counseling, I 
would not go to the Center, and I would 
tell people that I know not to go to the 
Center.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 22 day of March, 1989.

/s/ Catherine Groom 
Catherine Groom



35a

UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
WEST VIRGINIA ASSOCIATION OF )
COMMUNITY HEALTH CENTERS, )
ET AL. )

)Plaintiffs, )
)v. ) C.A .
)LOUIS SULLIVAN, SECRETARY, )

UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )

)Defendant. )
_________________________________)

AFFIDAVIT
I, Margie F. Hale, depose and say:
1. That I am Executive Director of 

The Women's Health Center of West 
Virginia, Inc. ("The Center").

2. That I have been its Executive 
Director since May 1987. My duties at The 
Women's Health Center are supervision of 
the day-to-day operations of the Center, 
including responsibility for personnel



36a
management, financial affairs and public 
relations.

3. That the Center serves Kanawha
County for family planning services.

4. That other than family planning
services, the Center also provides 
obstetrics and gynecological services; 
birth services; family and individual 
counseling; abortions, and case management 
for pregnant teens, which includes
counseling and assistance for those 
clients who wish to have their babies and 
keep them. Assistance includes housing, 
post birth medical care, transportation 
for pre-natal care, etc.

5. That the Center receives funds
under the United States Department of 
Health and Human Services Title X Family 
Planning Services Program as a delegate



37a
agency of the West Virginia Department of 
Health.

6. That in fiscal year 1988, the 
Center's Title X grant was $62,000, which 
represents 8.3% of the Center's $750,000 
total operating budget.

7. That the Center served 2,000 
unduplicated family planning clients 
during 1988. Because of the limited 
number of practitioners, the Center is not 
able to meet the need for family planning 
services in this area.

8. That if Title X regulations ban 
the co-location of family planning 
services and abortion services, the Center 
would terminate its family planning 
services. The Center would not conduct a 
family planning program which is prevented 
from counseling clients on the full range 
of family planning options because such



38a
counseling would violate well accepted 
medical ethics as observed by our Staff. 
Additionally, it is not economically 
feasible for the Center to open separate 
facilities for our family planning-related 
services on the one hand and our abortion- 
related services on the other.

9. That in 1988, the Center performed 
555 pregnancy tests of which 42% were 
positive. The clients who have had 
pregnancy tests frequently immediately ask 
us questions about what options are 
available to them with respect to their 
pregnancy.

10. That the health professionals on 
my staff feel that a ban on post-pregnancy 
counseling involving a full range of 
options would force them to engage in 
unethical medical practices.



39a
11. That if Title X regulations banned 

the full range of post-pregnancy 
counseling respecting options, the Center 
would find it exceedingly difficult to 
continue to provide Title X services 
because qualified health care 
professionals would not agree to work for 
the Center.

12. Our clients who are told that they 
are pregnant expect to discuss the 
consequences of their pregnancies and 
their options with my staff. If we 
provided no post-pregnancy counseling or 
limited post-pregnancy counseling, our 
clients would feel frustrated and angry 
and would likely not return to the Center 
and would tell other people not to use the 
Center's services.

13. That the Women's Health facility 
consists of two offices side by side with



40a
one unrelated office between them. One 
office is used solely for the Birthing 
Center and the other office is used for 
all other services provided by the Center, 
including family planning, gynecological 
service, counseling and abortions.

14. That the Center has one personnel 
system, one accounting system, and one 
payroll system for all of its operations.

15. That the Center has been able to 
comply with Section 1008's prohibition on 
the use of Title X Federal funds to 
advocate family planning by several 
methods: (1) the Center does not and has 
never advocated abortion as a means of 
family planning; (2) abortion and family 
planning are never offered at the same 
time; (3) separate patients records are 
maintained for family planning clients and 
abortion clients; (4) the primary staff



41a
involved in abortions on the one hand and 
family planning on the other are different 
individuals.

16. That the Women's Health Center has 
never been found to violate the Federal 
statute heretofore and our activities have 
always been consistent with the 
requirements of the Department of Health 
and Human Services.

17. That if the Title X regulations 
require that abortion services be totally 
separated physically and financially from 
the family planning services offered by 
the Center, the Center would be required 
to find another building for one or the 
other of its services, hire new staff, 
reconfigure its systems, all of which are 
beyond the financial wherewithal of the

Center.



42a
18. All Title X funds are used 

exclusively in the family planning program 
and not in the provision of abortion 
services.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 22 day of , 1989.

/s/ Margie Hale 
Margie F. Hale



43a

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, )
ET AL. )

)Plaintiffs, )
)

V. ) C .A .
)OTIS R. BOWEN, SECRETARY, U.S. ) 

DEPARTMENT OF HEALTH AND HUMAN ) 
SERVICES )

)Defendant. )
____________________________________ )

AFFIDAVIT
I, Leslie Tarr Laurie, depose and say:
1. That I am the Executive Director 

of Family Planning Council of Western 
Massachusetts ("FPCWM").

2. That I was the founder of FPCWM 
and have been its Executive Director for 
fifteen years.

3. That FPCWM receives money under 
the U.S. Department of Health and Human



44a
Services' Title X family planning services 
program directly from HHS.

4. That the Title X funding in fiscal 
year 1987 was $564,664, representing 
approximately forty percent (40%) of 
FPCWM's operating budget.

5. That FPCWM served approximately 
13,000 clients in the past year. There 
are an estimated 45,000 clients our 
service delivery area that are in need of 
affordable family planning services.

6. That FPCWM operates eleven clinics 
covering 3000 sguare miles in Western 
Massachusetts. In many of the rural 

areas, FPCWM's clinics are the only source 
of reproductive health care available.

7. That in all of its clinics, FPCWM 
provides comprehensive family planning 
services. Two of its clinic sites are co­



45a
located with other organizations that 
provide abortion services.

8 . That if Title X regulations banned 
the co-location of family planning with 
abortion services, FPCWM would be forced 
to terminate family planning services in 
two geographical areas because it would 
not be economically feasible to open 
separate facilities.

9. That in 1986, FPCWM performed 2738 
pregnancy tests.

10. That conversations with health 
professionals on my staff indicate that 
they believe a ban on post-pregnancy 
counseling would force them to engage in 
unethical practices.

11. That if Title X regulations banned 
any post-pregnancy counseling, FPCWM would 
find it exceedingly difficult to continue 
to provide Title X services because



46a
qualified health care professionals would 
refuse to work for FPCWM.

12. That our clients who are told that 
they are pregnant expect to discuss the 
consequences of their pregnancies and 
their options with our staff. If FPCWM 
provided no post-pregnancy counseling, 
clients simply given a list of prenatal 
health care services would feel frustrated 
and angry. They would most likely not 
return to FPCWM and would tell other 
people not to use FPCWM's services.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this ___ day of December 1987.

I s /  Leslie Tarr Laurie 
Leslie Tarr Laurie



47a

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF WEST VIRGINIA

WEST VIRGINIA ASSOCIATION OF ) 
COMMUNITY HEALTH CENTERS )
ET AL. )

)Plaintiffs, )
)v. ) C.A .
)LOUIS SULLIVAN, SECRETARY, )

U.S. DEPARTMENT OF HEALTH AND)
HUMAN SERVICES )

)Defendant. )
_________________________________)

AFFIDAVIT
I, Susan B. Walter, depose and say:
1. That I am the Executive Director 

of Shenandoah Community Health Center of 
Intercounty Health, Incorporated.

2. That I have been its Executive 
Director for 3-1/2 years.

3 . That I received a Master in Social 
Work from West Virginia University and 
have worked as an administrator in the



48a
community health field for the past nine 
years.

4. That Shenandoah Community Health 
Center is a community health center 
providing comprehensive health care 
services to all in the community 
regardless of their ability to pay. 
Patients served by Shenandoah Community 
Health Center reside in Berkeley, 
Jefferson, Morgan, Mineral, Hampshire, and 
Hardy counties of West Virginia. Between 
June through November each year Shenandoah 
Community Health Center also provides 
health care services to migrants and 
seasonal farmworkers in those same West 
Virginia counties and in northwestern 
Virginia and Maryland.

5. That Shenandoah Community Health 
Center's focus is on prevention, 
education, and managed care.



49a
6. That in 1988 Shenandoah Community 

Health Center served 12,729 patients with 
47,907 patient visits for medical care, 
social services, and WIC nutrition 
services. 2,825 of these patients were 
migrant and seasonal farmworkers with 
limited or no fluency in English or access 
to health care.

7. That the Shenandoah Community 
Health Center receives Title X funding 
through the West Virginia State Department 
of Health, which in turn receives its 
Title X funding from the U.S. Department 
of Health and Human Services.

8. That most family planning services 
provided to the clients seen by Shenandoah 
Community Health Center are subsidized, at 
least in part, by Title X.

9. That last year Shenandoah 
Community Health Center provided Title X



50a
family planning services to 1,446 clients 
with over 2,950 visits. 725, 50%, of 
these clients were 19 years of age and 
under.

10. That in 1988, Shenandoah Community 
Health Center performed approximately 
1,200 pregnancy tests.

11. That Shenandoah Community Health 
Center health professionals indicate that 
they believe a ban on post-pregnancy 
counseling would force them to engage in 
unethical practices.

12. That if Title X regulations banned 
any post-pregnancy test counseling, 
Shenandoah Community Health Center would 
find it exceedingly difficult to continue 
to provide Title X services because 
qualified health care professionals could 
not violate their professional ethics by 
withholding information from patients and



51a
by not responding to patients' requests 
about their options.

13. That Shenandoah Community Health 
Center could not afford to organize the 
physical, financial, personnel and record 
keeping separation required by the new 
Title X regulations.

14. That it is my understanding that 
by not providing a continuity of 
comprehensive health care information to 
our patients, Shenandoah Community Health 
Center would violate the intent of Public 
Health Service 329 and 330 funding, major 
funding sources for Shenandoah Community 

Health Center.
15. That I, as an Executive Director 

of a community health center, am pledged 
to advocate for the needs of the medically 
underserved and am responsible for 
ensuring the provision of quality



52a
comprehensive health care services to all 
Shenandoah Community Health Center 
patients. Denying a continuum of
information and services to a particular 
group of patients would be discriminatory 
and would violate my leadership and 
personal integrity.

I declare under penalty of perjury that 
the foregoing is true and correct. 
Executed on this 21st day of March, 1989.

I s /  Susan B. Walter
Susan B. Walter, M.S.W.
Executive Director



53a
STATE OF WEST VIRGINIA 
COUNTY OF BERKELEY:

Subscribed and sworn before me this 
21st day of March, 1989.

June N. Cutlip, Notary Public 
My commission expires August 21, 1991.