New York v. Sullivan Brief for Petitioners
Public Court Documents
January 1, 1990
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Brief Collection, LDF Court Filings. New York v. Sullivan Brief for Petitioners, 1990. ce0fdd7c-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ea2527cc-2a35-4ab0-8919-11d0b8c7ab2d/new-york-v-sullivan-brief-for-petitioners. Accessed April 29, 2025.
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No. 89-1392
I n t h e
Supreme (Enurt of the llniteb States
O c t o b e r T e r m , 1990
T H E S T A T E O F N E W Y O R K , T H E C IT Y O F N E W Y O R K , T H E N E W
Y O R K C IT Y H E A L T H AND H O SP IT A L S C O R P .,
Petitioners,
vs.
D R . L O U IS SU L L IV A N , or his successor, S E C R E T A R Y O F T H E U N IT E D
S T A T E S D E P A R T M E N T O F H E A L T H AND HUMAN S E R V IC E S ,
R espondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR PETITIONERS
V i c t o r A . K o v n e r
C orporation Counsel fo r the
City o f N ew York
100 Church Street
New York, New York 10007
(212) 374-3171
L e o n a r d J . K o e r n e r
L o r n a B a d e G o o d m a n
G a i l R u b i n
H i l l a r y W e i s m a n
Assistant C orporation Counsels
Attorneys fo r Petitioners
T he City o f N ew York and
T he N ew York City H ealth and
H ospitals C orporation
R o b e r t A b r a m s
A ttorney G eneral o f the
State o f N ew York
120 Broadway
New York, New York 10271
(212) 341-2240
O . P e t e r S h e r w o o d
Solicitor G eneral
S u z a n n e M . L y n n
Assistant A ttorney G en eral
C hief, Civil Rights Bureau
(Counsel o f R ecord )
D o n n a I . D e n n i s
C y n t h i a F . K r e u s i
S a n f o r d M . C o h e n
Assistant A ttorneys G en eral
A ttorneys fo r P etitioner
The State o f N ew York
QUESTIONS PRESENTED
1. Do new regulations promulgated by DHHS under Title
X of the Public Health Service Act which prohibit abortion
counseling, referral and advocacy in programs funded under
the Act and require physical separation of Title X-funded
facilities from facilities engaging in abortion-related services,
violate the First Amendment?
2. Does the regulations’ prohibition of abortion counseling
and referral in a Title X-funded program violate the woman’s
constitutionally protected privacy right to make a fully informed
decision on whether or not to continue her pregnancy?
3. Do the regulations’ ban on abortion counseling and refer
ral in Tide X-funded programs and the requirement of physical
separation violate congressional intent underlying Title X?
4. Are the new regulations arbitrary and capricious because
they reverse longstanding agency policy in the absence of any
intervening change in circumstances and because the change
in policy was unquestionably politically motivated?
11
PARTIES
The parties to the proceeding in the United States Court of
Appeals for the Second Circuit are:
1. The State of New York, the City of New York and the New
York City Health and Hospitals Corporation, plaintiffs-
appellants in the court below.
2. Dr. Louis Sullivan, as Secretary of the United States
Department of Health and Human Services, defendant-appellee
in the court below.1
' Pursuant to Fed. R. App. P. Rule 43(c), Dr. Sullivan was substituted for Otis
R. Rowen, who was Secretary of Health and Human Services at the time this
action was filed.
I l l
TABLE OF CONTENTS
Questions Presented for R ev iew .................................. i
P arties.................................................................................... ii
Table of Authorities......................................................... vii
Opinions B elow .................................................................. 1
Jurisdiction........................................................................... 2
Constitutional, Statutory and Regulatory
Provisions Involved............................................................... 2
Statement of the Case ............................................................. 3
Summary of Argument............................................................. 8
A rgum ent..................................................................................... 10
I. THE REGULATIONS EXCEED HHS’
STATUTORY AUTHORITY AND ARE
ARBITRARY AND C A PR IC IO U S............................... 10
A. The Regulations Prohibiting Abortion
Counseling and Referral Are Contrary To
The Intent Of Congress As Well As
Arbitrary And C apricious........................................ 11
1. The Regulations Are Contrary To The
Plain Language Of Section 1008 Of
Title X ................................................................... 11 2
2. The Legislative History of Section
1008 Is Consistent With Its Plain
M eaning ................................................................. 14
a. Contemporaneous H isto ry ...................... 14
b. Subsequent H istory ................................... 16
Page
IV
Page
3. The Regulations Are Entitled To Little
D eference...................................................... 19
4. The Regulations Are Arbitrary And
Capricious .................................................... 23
B. The Requirement Of Physical And
Financial Separation In Section 59.9 Of
The Regulations Is Both Contrary To The
Intent Of Congress And Arbitrary And
C apricious............................................................. 26
1. Congress Did Not Authorize The
Physical Separation Requirem ent......... 26
2. The Physical Separation Requirement
Is U njustified............................................... 30
c. The Regulations Raise Serious
Constitutional Problems For Title X ........... 31
II. THE REGULATIONS ARE
U N CO N STITU TIO N A L......................................... 32
A. The Regulations Violate First Amendment
R ights...................................................................... 32
1. Section 59.8 Contains Content-and
View-Point Based Discriminatory
Restrictions On Speech In Violation
Of The First A m endm ent....................... 32
2. Section 59.10 Is A Viewpoint
Discriminatory Restriction On Speech
That Violates The First Amendment . . 41
3. Section 59.9 Violates The First
Amendment By Burdening Non-Title
X Funded Speech ....................................... 42
V
Page
B. Section 59.8 Violates The Woman’s
Constitutional Privacy Right to Decide
Whether To Continue Her Pregnancy . . . . 47
Conclusion........................................................................... 50
TABLE OF AUTHORITIES
A lbem arle Paper Co. v. M oody, 422 U.S. 405
(1 9 7 5 ) ................................................................................ 22
A m erican Council o f the Blind v. Boorstin, 644 F.
Supp. 811 (D .D .C . 1986) ......................................... 39
Andrus v. G lover Constr. C o ., 446 U.S. 608
(1 9 8 0 ) ............................................................................... 11, 12
Arkansas Writers' Project v. Ragland, 481 U.S.
221 (1987) ...................................................................... 38, 40
Austin v. M ichigan C ham ber o f C om m erce, 110
S. Ct. 1391 (1990) ....................................................... 45
B ecker v. Schw artz, 46 N.Y.2d 401, 413 N.Y.S.2d
895, 386 N .E.2d 807 (1978) ..................................... 43
Bethesda H ospital Ass’n v. Bow en, 108 S. Ct.
1255 (1988) .................................................................... 11
Bd. o f Educ. v. Pico, 457 U.S. 853 (1 9 8 2 ).............. 36
Bd. o f Governers o f th e F edera l Reserve System v.
Dim ension Financial C orp ., 474 U.S. 361
(1 9 8 6 ) ................................................................................ 19
Blum v. Yaretsky, 457 U.S. 991 (1 9 8 2 ).................... 37
B ob Jon es Univ. v. United States, 461 U.S. 374
(1 9 8 3 ) ................................................................................ 17
Boos v. Barry, 108 S. Ct. 1157 (1988)....................... 34
Bow en v. A m erican Hosp. Ass'n, 476 U.S. 610
(1 9 8 6 ) ................................................................................ 19, 20,
23, 27
V II
Cases Page
V l l l
Burlington Truck Lines, Inc. v. United States,
371 U.S. 156 (1 9 6 2 ) .................................................... 23
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),
cert, den ied , 409 U.S. 1064 (1972) ....................... 32
Carey v. Population Services In t i , 431 U.S. 678
(1 9 7 7 ) ............................................................................... 41
Chevron U.S.A., Inc. v. N ational Resources
D efense Council, 467 U.S. 837 (1984).................. 19, 26
Chrysler Corp. v. Brow n, 441 U.S. 281 (1978) . . . 16
City o f Akron v. Akron Center fo r R eproductive
H ealth , 462 U.S. 416 (1 9 8 3 ).................................... passim
C om m odity Futures Trading C om m ’n v. Schor,
478 U.S. 833 (1 9 8 6 ) .................................................... 20
C onsolidated Edison Co. v. Pub. Serv. C om m ’n,
447 U.S. 530 (1 9 8 0 ) .................................................... 34, 38
Consum er Product Safety C om m ’n v. GTE
Sylvania, In c ., 447 U.S. 102 (1980)....................... 12, 16
Cornelius v. NAACP L eg a l D efense and
Education Fund, 473 U.S. 788 (1985).................. 39
Cruzan v. Missouri D ep ’t o f H ealth, 58 U .S.L .W .
4916 (June 25, 1990) .................................................. 32
D eBartolo C orp. v. F lorida G u lf Coast Bldg, and
Constr., 108 S. Ct. 1392 (1 9 8 8 ).............................. 31
D oe v. Bolton , 410 U.S. 179 (1973)........................... 49
D ole v. United States Steelw orkers o f A m erica,
110 S. Ct. 929 (1990).................................................. 11, 19
Page
IX
EEO C v. Associated Dry G oods C orp ., 449 U.S.
590 (1981) ....................................................................... 20
FC C v. L eagu e o f W om en Voters, 468 U.S. 364
(1 9 8 4 ) ................................................................................ 35, 38,
39
FE C v. M assachusetts Citizens fo r L ife , In c ., 479
U.S. 238 (1 9 8 6 ).............................................................. 45
F edera l Energy Regulatory C om m ’n v.
Mississippi, 456 U.S. 742 (1982)............................. 37
G eneral E lec. Co. v. G ilbert, 429 U.S. 125 (1976) 22
G reen v. Bock Laundry M ach. C o ., 109 S. Ct.
1981 (1989) .................................................................... 11
G risw old v. Connecticut, 381 U.S. 479 ( 1 9 6 5 ) . . . . 32
G rove City C ollege v. Bell, 465 U.S. 555 (1 9 8 4 ).. 18
Harris v. M cR ae, 448 U.S. 297 (1980) ..................... 38, 47
H illsborough County v. A utom ated M edical
Laboratories, In c., 471 U.S. 707 (1 9 8 5 ) .............. 27
H obb ie v. U nem ploym ent A ppeals C om m ’n o f
F lorida, 480 U.S. 136 (1987) ..................................... 46
H offson v. O rentreich, 144 Misc. 2d 411 (Sup.
Ct. N.Y. Co. 1989)....................................................... 32
I.N .S. v. C ardoza-Fonseca, 480 U.S. 421 (1987) . . 11, 19
K M art Corp. v. C artier, In c ., 108 S. Ct. 1811
(1 9 8 8 ) ................................................................................ 11
Kleindienst v. M andel, 408 U.S. 753 (1972)............. 36
Page
X
L in dah l v. O ffice o f Personnel M anagem ent, 470
U.S. 768 (1985 )............................................................. 16
L u khard v. R eed , 481 U.S. 368 (1 9 8 7 ) .................... 12
Lyng v. In t i Union, United Auto W orkers, 485
U.S. 360 (1988 )............................................................. 47
M aher v. R oe, 432 U.S. 464 (1 9 7 7 )........................... 37, 38,
47
M assachusetts v. Bow en, 679 F. Supp. 137 (D.
Mass. 1988) .................................................................... 7, 45
M assachusetts v. S ecy o f H ealth and Human
Services, 899 F.2d 53 (1st Cir. 1990).................... passim
M otor V ehicle M anufacturers Ass’n v. State Farm
Mut. Auto. Ins., 463 U.S. 29 (1 9 8 3 ) .................... passim
NAACP v. Button, 371 U.S. 415 (1 9 6 3 ) .................. 45
N ational Ass’n o f Greeting Card Publishers v.
United States Postal Services, 462 U.S. 810
(1 9 8 3 ) ............................................................................... 14
N ew York v. Bow en, 690 F. Supp. 1261
(S.D.N.Y. 1988) ........................................................... 1, 7, 42
N ew York v. Sullivan, 889 F.2d 401 (2d Cir.
1 9 89 ).................................................................................. passim
N LRB v. A erospace C o ., 416 U.S. 267 (1974) . . . . 16
N LRB v. Drivers, 362 U.S. 274 (1 9 6 0 ) ......................... 31
N LRB v. United F ood and C om m ercial W orkers
Union, 484 U.S. 112 (1987)....................................... 19, 20
North Haven Bd. o f Educ. v. Bell, 456 U.S. 512
(1 9 8 2 ) ................................................................................ 16
Page
XI
Perry v. Sindermann, 408 U.S. 593 (1972 ).............. 46
Perry Educ. Ass’n v. Perry L oca l E ducators’ Ass’n,
460 U.S. 37 (1 9 8 3 ) ....................................................... 39
Piedm ont ir Northern Ry. v. Com m ission, 286
U.S. 299 (1 9 3 2 )............................................................. 13
Pittson C oal Group v. Sebben , 109 S. Ct. 414
(1 9 8 8 ) ................................................................................ 12
Planned Parenthood Ass’n - C hicago Area v.
K em piners, 531 F. Supp. 320 (N.D. 111. 1981)
vacated and rem anded on other grounds, 700
F.2d 1115 (7th Cir. 1983), on rem and, 568 F.
Supp. 1490 (N.D. 111. 1 9 8 3 ) .................................... 40, 46
Planned Parenthood o f Cent. <b No. Arizona v.
Arizona, 718 F.2d 938 (9th Cir. 1983) appeal
a fter rem and, 789 F.2d 1348 (9th Cir.), a f f ’d
sub nom . B abbitt v. Planned P arenthood, 479
U.S. 925 (1 9 8 6 )............................................................. 46
Planned Parenthood o f Central Missouri v.
D anforth , 428 U.S. 52 (1975 ).................................. 34
Planned P arenthood F e d ’n o f Am. v. Bow en , 680
F. Supp. 1965 (D. Colo. 1988), ap p ea l pending
(10th C i r . ) ....................................................................... 7
Regan v. Taxation w ith R epresentation , 461 U.S.
540 (1983) ....................................................................... 35, 37,
38, 39,
41, 44,
45
R endell-B aker v. K ohn, 457 U.S. 830 (1 9 8 2 ) ........ 37
R oe v. W ade, 410 U.S. 113 (1973) ........................... 47, 48
Rust v. Bow en , 690 F. Supp. 1261 (S.D.N.Y.
1 9 8 8 ).................................................................................. 7
Page
XU
S chloendorff v. Society o f New York H ospital, 211
N.Y. 125, 105 N.E. 92 (1914).................................... 32
Sherbert v. Verner, 374 U.S. 398 (1963).................. 46
Speiser v. R andall, 357 U.S. 513 (1 9 5 8 ) .................. 46
Sullivan v. Z ebley, 110 S. Ct. 885 (1990)................ 30
Thornburgh v. A m erican C ollege o f Obstetricians
i? Gynecologists, 476 U.S. 747 (1986 ).................. 34, 47,
48
T rafficante v. M etropolitan L ife Ins. C o., 409
U.S. 205 (1 9 7 2 )............................................................. 20
United States v. K okinda, 58 U .S.L .W . 5013
(June 27, 1 9 9 0 ) ............................................................. 39
United States v. R utherford, 442 U.S. 544 (1979) . 17
United States Postal Service v. Council o f
G reenburgh Civic Assn., 453 U.S. 114 (1981) . . 39
Valley Fam ily Planning v. North D akota, 489 F.
Supp. 238 (D.N.D. 1980), a f f ’d on other
grounds, 661 F.2d 99 (8th Cir. 1 9 8 1 ) .................. 14, 46
Village o f H offm an Estates, 455 U.S. 489 (1982) . 45
Virginia State Bd. o f Pharm acy v. Virginia
Citizens Consum er Council, In c ., 425 U.S. 748
(1 9 7 6 ) ................................................................................ 36
W ebster v. R eproductive H ealth Services, 109 S.
Ct. 3040 (1 9 8 9 )............................................................. 38, 39,
47
W halen v. R oe, 429 U.S. 589 (1977 )......................... 47, 49
W ooley v. M aynard, 430 U.S. 705 (1977) ............. 34
Z auderer v. O ffice o f D isciplinary Counsel, 471
U.S. 626 (1 9 8 5 )............................................................. 36
Page
X IU
Federal Statutes, Regulations, Guidelines, and Rules
28 U .S.C . § 1 2 5 4 (1 )......................................................... 2
42 U .S.C . § 3 0 0 (a ) ........................................................... 2, 11, 37
42 U .S.C . § 300a ( a ) ......................................................... 2, 26
42 U .S.C . § 300a-3(a) .................................................... 3
42 U .S.C . § 300a-4(a),(c) .............................................. 3, 4, 8,
42
42 U .S.C . § 300a-6 ........................................................... 2 , 5 , 8 ,
12
42 U .S.C . § 701 ................................................................ 43
42 U.S.C.A . § 300(a) (West 1 9 8 2 ) .............................. 3, 17
42 U.S.C.A . §300z-10 (West 1982) ........................... 13
Pub. L. No. 91-572 §2(1), 84 Stat. 1504 (1970) . . 27
Pub. L. No. 93-45, 87 Stat. 91 (1973)....... 17
Pub. L. No. 94-63, 89 Stat. 304 (1975)..... 17
Pub. L. No. 95-83, 91 Stat. 383 (1977)..... 18
Pub. L. No. 95-613, 92 Stat. 3093 (1978)................ 18
Pub. L. No. 97-35, 95 Stat. 358 (1981)..................... 18
Pub. L . No. 98-512, 98 Stat. 2409 (1984)................ 18
53 Fed. Reg. 2922-44 (Preamble to Regulations)
(1988) ................................................................................ passim
52 Fed. Reg. 33212 §59.8(a) (1987)........................... 25
37 Fed. Reg. 26594 (1972)
Page
21
XIV
36 Fed. Reg. 18465 §§ 59.5 (1 9 7 1 ) ........................... 20, 21
42 C .F .R . §§ 59.2, 59.5, 59.7, 59.8, 59.9, 59.10
(1 9 8 8 ) ............................................................................... passim
U.S. D ep ’t o f H E W Program Guidelines fo r
Project Grants f o r Fam ily Planning Services § §
7.4, 8.0, 8 .6 , 9.4 (1981) ........................................... 4, 5, 6,
22
U.S. D ep ’t o f H E W Program G uidelines fo r
Project Grants fo r Fam ily Planning Services
(1 9 7 6 ) ............................................................................... 22
State Statutes
N.Y.S. Educ. Law §§ 6506-6509 (McKinney 1985) . . 43
N.Y.S. Pub. Health Law § 2800 (McKinney 1985) . . 43
N.Y.S. Pub. Health Law § 2805-d(l) (McKinney
1 9 85).................................................................................. 43
N.Y.S. Pub. Health Law § 2807-b (McKinney
1985).................................................................................. 27
N.Y. Comp. Codes R. & Regs. tit. 8 § 29.2 (1989) . 43
N.Y. Comp. Codes R. & Regs. tit. 10 § § 751.4,
751.9 (1987) .................................................................... 32, 43
Legislative History and Hearings
S. Rep. No. 1004, 91st Cong., 2d Sess., reprinted
in 116 Cong. Rec. 24094 (1970)................................. 14
S. Rep. No. 29, 94th Cong., 1st Sess., reprinted in
1975 U.S. Code Cong. & Admin. News 469 . . . . 17
Page
XV
S. Rep. No. 63, 94th Cong., 1st Sess., reprinted,
in 1975 U.S. Code Cong. & Admin. News 469,
528 .................................................................................... 28
S. Rep. No. 822, 95th Cong., 2d Sess., reprinted
in 124 Cong. Rec. 16454 (1978).............................. 18
H.R. Rep. No. 1472, 91st Cong., 2d Sess.,
reprinted in 1970 U.S. Code Cong. & Admin.
News 5068, 5 0 7 4 ........................................................... 14, 27
H.R. Rep. No. 161, 93d Cong., 2d Sess. (1974) . . 28
H.R. Rep. No. 1161, 93d Cong., 2d Sess. (1974) . 17, 28
H.R. Rep. No. 118, 95th Cong., 1st Sess (1977) . . 28
H.R. Rep. No. 191, 95th Cong., 2d Sess. (1978). . 28
H.R. Rep. No. 159, 99th Cong., 1st Sess. (1985) . 17, 18
H.R. Rep. No. 403, 99th Cong., 1st Sess. (1985) . 19
H.R. Conf. Rep. No. 1667, 91st Cong., 2d Sess.,
reprinted in 1970 U.S. Code Cong. & Admin.
News 5081-82 ................................................................ 15, 16
H.R. Conf. Rep. No. 1524, 93d Cong., 2d Sess.,
(1 9 7 4 ) ................................................................................ 17, 28
116 Cong. Rec. 37367 (1970) ........................... 15
116 Cong. Rec. 37369 (1 9 7 0 ) ........................... 15
116 Cong. Rec. 37370 (1 9 7 0 ) ........................... 40
116 Cong. Rec. 37375 (1 9 7 0 ) ........................... 16
Page
XVI
116 Cong. Rec. 37379 (1 9 7 0 ) ....................................... 15
116 Cong. Rec. 37381 (1970) ....................................... 4
121 Cong. Rec. 9789-90 (1975).................................... 17
124 Cong. Rec. 31241-44 (1978).................................. 29
124 Cong. Rec. 37046 (1978) ....................................... 28, 29
Administrative Materials
Memorandum from J. Mangel, Deputy Assistant
General Counsel to L. Heilman, M .D ., Deputy
Assistant Secretary for Population Affairs (April
20, 1971) ......................................................................... 21, 29
National Center for Family Planning Services,
Health Services and Mental Health
Administration, Department of Health
Education and Welfare, A Five-Y ear Plan fo r
the D elivery o f Fam ily Planning Services
(October 1971) ............................................................. 13, 21
Memorandum from C. Conrad, Sr. Atty., Pub.
Health D iv., to E. Sullivan, Office for Family
Planning, (April 14, 1978)......................................... 20, 22
Memorandum from C. Conrad, Sr. Atty., Pub.
Health D iv., to E. Sullivan, Office for Family
Planning, (July 15, 1979)............................................. 20, 22
Memorandum from L. Belmonte, Regional
Program Consultant, Office for Family
Planning (May 25, 1 9 7 4 ) ........................................... 22
Memorandum from L. Heilman, Md., Deputy
Assistant Sec’y for Population Affairs to H.
Connor, M .D ., Regional Health Adm’r
(November 19, 1 9 7 6 ) .................................................. 20, 22
Page
XVII
General Accounting Office, Restrictions on
A bortion and L obby in g Activities in Fam ily
Planning Program N eed C larification (1982) . . . passim
Articles
J.D . Forrest, “The Delivery of Family Planning”
Services in the United States”, 20 Fam ily
Planning” Perspectives 88 (1987) ........................... 6
Miscellaneous
W ebster’s Third New International D ictionary
(1 9 7 1 ) ................................................................................ 12
Stedm an ’s M edical D ictionary F ifth U nabridged
L aw y er’s Edition (1987)............................................. 12
The Sloane-D orland Annot. M edical-Legal
D ictionary (1 9 8 7 ) ......................................................... 12
D orlan d ’s Illustrated M edical D ictionary (1981) . . 12
Sutherland Statutory Construction § 64.08 (Sands
4th ed. 1 9 8 6 ).................................................................. 13
Current Opinions o f the Council on E th ical and
Ju d ic ia l A ffairs o f the A m erican M edical
Association, Op. 3.04, 8.07 (1986)......................... 13, 34,
35
Letter from Rep. John D. Dingell to Otis R.
Rowen (October 14, 1987)......................................... 16
Letter from Rep. Christopher H. Smith, et. a l.,
to Donald T. Regan (August 1, 1 9 8 6 ).................. 24, 25
Letter from Secretary Otis R. Rowen to Hon. Vin
Weber (August 19, 1986)........................................... 25
Page
No. 89-1392
In the
Bnprtmt Gtourt af tl|t United States
O c t o b e r T e r m , 1 9 9 0
T H E ST A T E O F N E W Y O R K , T H E C IT Y O F N EW
Y O R K , T H E N E W Y O R K C IT Y H E A L T H
AND H O SPIT A L S C O R P .,
Petitioners,
vs.
D R . L O U IS SU LLIV A N , or his successor, SE C R E T A R Y
O F T H E U N IT E D S T A T E S D E P A R T M E N T O F
H E A L T H AND HUMAN S E R V IC E S ,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR PETITIONERS
OPINIONS BELOW
The decision of the district court is reported as New York v.
Bow en , 690 F. Supp. 1261 (S.D.N.Y. 1988), and is reproduced
in the appendix to the petitions for certiorari at 9-32a. The
opinion of the United States Court of Appeals for the Second
Circuit is reported as N ew York v. Sullivan, 889 F.2d 401 (2d
Cir. 1989), and is reproduced in the appendix to the petitions
for certiorari at 35-67a.
2
JURISDICTION
The judgment of the Court of Appeals was entered on
November 1, 1989, and the petition for certiorari was filed pur
suant to 28 U.S.C. § 1254(1) on March 1, 1990. The petition was
granted on May 29, 1990. 110 S. Ct. 2559.
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
United States Constitution, Amendment I:
Congress shall make no law. . . abridging the freedom
of speech. . . .
United States Constitution, Amendment V:
No person shall. . . be deprived of life, liberty, or pro
perty, without due process of law. . . .
Title X of the Public Health Service Act, 42 U.S.C. § 300(a):
The Secretary is authorized to make grants to and
enter into contracts. . . to assist in the establishment
and operation of voluntary family planning projects
which shall offer a broad range of acceptable and ef
fective family planning methods and services. . . .
Title X of the Public Health Service Act, 42 U.S.C. § 300a-6:
None of the funds appropriated under this subchapter
shall be used in programs where abortion is a method
of family planning.
Title X of the Public Health Service Act, 42 U.S.C. § 300a(a):
The Secretary is authorized to make grants, from
allotments made under subsection (b) of this section,
to State health authorities to assist in planning,
establishing, m aintaining, coordinating, and
evaluating family planning services. No grant may be
made to a State health authority under this section
unless such authority has submitted, and had
approved by the Secretary, a State plan for a coor
dinated and comprehensive program of family plan
ning services.
3
Title X of the Public Health Service Act, 42 U.S.C. § 300a-3(a):
The Secretary’ is authorized to make grants to public
or nonprofit private entities and to enter into contracts
with public or private entities and individuals to assist
in developing and making available family planning
and population growth information (including educa
tional materials) to all persons desiring such informa
tion (or materials).
Title X of the Public Health Service Act, 42 U.S.C. § 300a-4:
A grant may be made or contract entered into under
section 300 or 300a of this title for a family planning
service project or program only upon assurances
satisfactory to the Secretary that —
(1) priority will be given in such project or pro
gram to the furnishing of such services to per
sons from low-income families; . . .
Grants for Family Planning Services, 42 C.F.R. §§ 59.2, 59.5,
59.7, 59.8, 59.9, 59.10.
STATEMENT OF THE CASE
The Title X Program and the C hallenged Regulations
In 1970 Congress enacted Title X of the Public Health Serv
ice Act, 42 U.S.C. §§ 300-300a-41 (1982), to provide low-income
women with access to family planning services. Title X is the
largest source of federal support for family planning and repro
ductive health care, funding over 3900 clinics nationwide and
serving nearly 4.5 million low-income women per year. See Mor-
ley U 6 (224-25JA).2 In addition to providing information and
education on “a broad range of acceptable and effective . . .
methods” of spacing children, 42 U.S.C.A. § 300(a) (West 1982),
2 Materials appearing in the Joint Appendix to this brief will be referred to as
(“____ JA”). The Appendix is jointly filed by petitioners the State of New York
et al. and by petitioners Rust et al. Materials appearing in the appendix to the
petition for certiorari will be referred to as (“____ a”). Materials appearing in the
appendix to the Second Circuit Court of Appeals will be referred to as (“------ A”).
4
Title X clinics dispense some general medical care and refer pa
tients for all services not provided by the clinics.3
The program was created in “recognition] of a basic human
right, the right to freely determine the size of one’s family, the
timing of one’s children.” 116 Cong. Rec. 37381 (1970). Through
Title X Congress intended to provide access to family planning
services for low-income women so that they could have the same
range of reproductive choice as women of greater means. 42
U.S.C. § 300a-4(c)(l).
Title X has operated successfully for two decades, and is par
ticularly important to the delivery of health care in New York
State,4 serving precisely those women Congress intended to reach.
The overwhelming majority of patients are poor women, most
of whom have incomes below 150 % of the poverty line, Gesche
1 6 (171JA); Henshaw 1 18 (194JA); Fink 1 3 (160JA), and a
substantial portion are adolescents, Gesche 1 7 (171JA). It is a
population in acute need of medical information and services,
suffering from disproportionately high rates of teenage pregnan
cy, infant mortality and sexually transmitted diseases. See , e.g.,
Joseph 11 7, 8 (199JA); Bennett 1 7 (496A); Coombs 1 10
(142-44JA); Morgan 1 4 (218JA).5 But in February 1988, for
3 See HEW, Program Guidelines for Project Grants for Family Planning Ser
vices (1981) §§ 8.3, 9.1-3, 9.4 (35-36A,39A). See 42 C.F.R. § 59.5(b)(1) (1988).
Congress in fact envisioned the Title X clinics as providing an entry point in
to the general health care system, by identifying undiscovered health problems
and by offering referrals for all treatment needs. See 116 Cong. Rec. 37370
(1970) (Statement of Rep. Bush) (222A).
* There are two direct Title X grantees in New York State: the New York State
Department of Health (NYSDOH) and the Medical and Health Research
Association of New York City (MHRA), petitioner in the companion case to
this one. Gesche 1 4(170JA); Fink 1 3(160JA). Together the NYSDOH and
MHRA subgrant Title X funds in excess of $8 million to 40 delegate agencies,
Gesche 11 4-5(170-171JA); Fink 1 4(160JA), which serve approximately 200,000
women throughout the state Gesche 1 6(171JA).
5 In New York’s urban areas, the percentage of women infected with AIDS is
among the highest in the nation. See Joseph 11 7-8 (199JA); Minkoff 11 5-6
(647A). One of every 60 women giving birth in New York City is HIV positive,
with the rate rising to one in 50 in Manhattan and the Bronx. (Gesche Exh. F)
(NYSDOH, Newborn Seroprevalence Study (1988)) (563A). In New York State, in
1988 alone, 2300 HIV-positive women were expected to give birth, with approxi
mately 1000 of these infants being infected by the virus. Gesche 1 1 7 (175JA).
5
blatantly political reasons, the Secretary of HHS promulgated
new regulations that are entirely at odds with the First Amend
ment, constitutional privacy guarantees, and the letter and spirit
of Title X.
Section 1008 of Title X provides: “[n]one of the funds appro
priated under [Title X] shall be used in programs where abortion
is a method of family planning.” 42 U.S.C. § 300a-6. For 17 years,
HHS had consistently interpreted this to mean that Title X pro
viders may not perform abortions, but may, and indeed must,
provide nondirective counseling to pregnant patients. See, e.g .,
1981 Guidelines § 8.6 (71a). In an abrupt about-face, the Secre
tary has reread this section to mean that family planning pro
grams may no longer whisper the word “abortion” to their
patients. Abortion — a legal alternative to an unwanted
pregnancy — may not be mentioned, even in response to a direct
inquiry, in the context of an intimate conference between physi
cian and patient, and even if medically indicated for the in
dividual involved.
In enacting the new regulations, HHS has chosen to stifle the
speech of private health care professionals and the rights of their
patients to receive unbiased medical information. The new
regulations interfere with and damage the doctor-patient rela
tionship on its most basic level, and, in effect, perpetrate a hoax
on a young and vulnerable population.
The Regulations
Section 59.8(a)(1) prohibits all counseling about and referral
for abortion, regardless of the woman’s medical circumstances.
Sections 59.8(a)(2) and (b)(4) require that every pregnant
woman, even the woman who has decided not to continue her
pregnancy, be provided with a “list of available providers that
promote the welfare of the mother and unborn child.” This refer
ral list must include providers who do not perform abortions
— regardless of their medical qualifications — but may not in
clude providers whose “principal business is the provision of
abortions,” § 59.8(a)(3), (b)(3) and (4). The sole exception to
this mandatory referral for prenatal care is when “emergency
care is required.” § 59.8(a)(2). Finally, if a woman asks about
abortion, the regulations tell the provider to advise her that “the
project does not consider abortion an appropriate method of
6
family planning and therefore does not counsel or refer for abor
tion.” §59.8(b)(5).
Section 59.10 further prohibits activities that HHS deems to
“encourage, promote or advocate abortion”, including lobbying
for legislation to increase the availability of abortion, paying dues
to an organization that advocates abortion, or disseminating
educational materials on abortion. Thus, clinics would be barred
from making appointments for pregnant clients with abortion
clinics, § 59.10(b)(2); offering clients a brochure advertising an
abortion dinic, §59.10(b)(l); or discussing abortion in lectures or
workshops on sex education, family planning or reproductive
health. § 59.10(a)(2).
Section 59.9 requires that clinics attain complete physical and
financial separation between approved Title X-funded and disap
proved non-Title X-funded services. The Secretary had always
previously held that § 1008 had no effect on activities funded by
non-Title X sources. Thus, grantees were permitted to use private
funds for other activities, including the provision of abortions,
without the necessity of any physical separation. Under the new
regulations, the Secretary is to look at various factors such as
the existence of separate treatment, examination and waiting
rooms and separate personnel, to determine on an ad hoc basis
whether programs have achieved “program integrity”.
For many low income women, Title X clinics are the sole
source of reproductive care - and sometimes of any land of health
care, as Congress was aware and as HHS has acknowledged.6
Thus, the net effect of the new regulations is censorship: an at
tempt by HHS to prevent poor women, with limited resources,
from finding out about the existence and availability of a
medically and legally acceptable option.
6 See 1981 Guidelines § 9.4. Title X clinics in New York as throughout the
nation serve as one of the few sources of regular health care for poor women.
See Randolph 1 10, 12 (244-45JA); Drisgula 1 18 (153JA); Potteiger 1 16 (91a);
Tiezzi 5 8(a)(94a); Merrens 5 5 (284JA). A 1988 study by the Alan Guttmacher
Institute found that Title X family planning services often constitute the only
link to the general health care system for thousands of poor and teenage
women. J.D. Forrest, “The Delivery of Family Planning Services in the United
States”, 20 Family Planning Perspectives 88 (1987).
7
History o f the Litigation
In February 1988 the State and City of New York sued in the
district court for the Southern District to enjoin the regulations,
alleging that they were contrary to congressional intent underly
ing Title X, that they were arbitrary and capricious, and that
they violated the constitutional privacy rights of women and the
First Amendment rights of women and their health care providers.
Subsequently, it was consolidated with another action simulta
neously brought by various private health care providers and
patients, see Rust v. Bow en, 690 F. Supp. 1261 (S.D.N.Y. 1988).7
On June 30, 1988 the district court granted summary judgment
in favor of HHS and dismissed plaintiffs’ consolidated
complaints.
On November 1, 1989 a divided panel of the court of appeals
affirmed. New York v. Sullivan, 889 F. 2d 401 (2d Cir. 1989).
While recognizing that the regulations were a departure from
longstanding agency policy, the majority found that they were
consistent with the statutory language and legislative intent. Id.
at 407-10. It did not engage in an analysis of whether the regula
tions were arbitrary and capricious. Id. at 410. It also conclud
ed that the regulations did not impermissibly burden women’s
privacy rights. Id . at 410-12. It conceded that the regulations
“may hamper or impede women in exercising their right of
privacy in seeking abortions”, but determined that “the prac
tical effect of such a denial on the availability of such services
is constitutionally irrelevant”. Id. at 411. Similarly, it held that
the ban on abortion counseling, referral and advocacy did not
violate the First Amendment, as the government may refuse to
subsidize the exercise of fundamental rights, including speech,
and it was not viewpoint discriminatory. Id. at 412-14.
7 Two other actions challenging the regulations were filed at about the same
time as the instant one. See Planned Parenthood Fed’n of Am. c. Bowen, 680
F.Supp. 1465 (D. Colo. 1988) (preliminary injunction), 687 F. Supp. 540 (D.
Colo. 1988) (permanent injunction), appeal pending, No. 88-2251 (10th Cir.);
Massachusetts v. Bowen, 679 F. Supp. 137 (D. Mass. 1988), aff’d, Massachusetts
v. Sec’y of Health and Human Services, 899 F.2d 53 (1st Cir. 1990) (en banc).
Both actions resulted in the regulations being stricken on constitutional and
statutory grounds. The decision of the First Circuit, therefore, directly con
flicts with the decision of the Second Circuit.
8
The concurring judge, while finding the regulations to be per
missible under the statute, expressed two concerns: first, that
the separation requirement of § 59.9 authorizes the Secretary
to deny funding based on the non-Title X activities of Title X-
funded personnel and, second, that the compelled concealing
of information about abortions and inadequate referrals would
harm vulnerable patients. Id. at 414-15.
The dissenting judge found that the counseling and referral ban
was viewpoint discriminatory in that it “require[d] the grantee to
emphasize prenatal care and prohibited] it from identifying any
entity as a provider of abortions”. Id. at 416. Moreover, she found
that the content restriction was “all the more pernicious” in that
it deprived women of their right to choose whether or not to have
an abortion. Id. Finally, she concluded that the regulations were
arbitrary and capricious because the turnaround in policy was
not justified by any facts in the record before the agency, and
because it was blatantly political. Id. at 417-18.
On November 21, 1989, the Second Circuit unanimously en
joined enforcement of the regulations and stayed its mandate
pending disposition of the case by this Court (68-69a). Thus,
petitioners continue to receive grant funds under the terms of
the preexisting regulations.
SUMMARY OF ARGUMENT
The Secretary of HHS, in a dramatic reversal of agency policy,
promulgated new regulations under Title X of the Public Health
Service Act, 42 U.S.C. §§ 300-300a-41, purporting to reinter
pret the statute’s prohibition against funding “programs where
abortion is a method of family planning.” 42 U.S.C. § 300a-6
(§ 1008 of the Act). Where former agency policy allowed, and
in fact required, Title X health professionals to counsel preg
nant women on all options including abortion, new § 59.8 for
bids neutral speech about abortion and mandates speech pro
moting prenatal care in the counseling context, while new § 59.10
prohibits other activities by Title X recipients that are deemed
to “encourage, promote or advocate abortion”. Where former
agency policy required only financial separation of Title X
funded and independently funded abortion-related activities,
new § 59.9 mandates that Tide X programs be physically as well
9
as financially separate from facilities engaging in abortion-
related activities. These regulations contravene congressional in
tent underlying Title X, are arbitrary' and capricious, and violate
free speech guarantees of the First Amendment and privacy
guarantees of the due process clause of the Fifth Amendment.
First, the abortion counseling and referral ban goes far beyond
§ 1008, which only forbids funds for the provision of abortions.
Section 1008, on its face and in the context of the statute as a
whole, does not restrict the provision of neutral information
about abortion, and in fact such a restriction would run counter
to the aims of the program to provide high quality reproduc
tive health care to low-income women. Contemporaneous and
subsequent legislative history confirm that in enacting § 1008,
Congress meant only to guard against abortion being used as
a substitute for contraception, and that medically appropriate
counseling and referral services were to be included as part of
the “comprehensive family planning services” offered under Tide
X. The prior history of administrative enforcement demonstrates,
too, that § 1008 was not intended to prevent the provision of
truthful information about abortion.
The physical separation requirement similarly contravenes
congressional intent. Congress repeatedly expressed its belief that
Title X services were best offered in an integrated health set
ting, i.e., coordinated with providers of other health care ser
vices. Physical separation undermines that intent by requiring
cosdy duplication of resources, or even closings of facilities, thus
reducing clinics’ ability to serve their intended patients.
Second, the regulations are arbitrary and capricious because
they are not the result of any intervening change in cir
cumstances, are not rationally related to the evidence before
the agency, and have been conceded by the Secretary to be
politically motivated.
Third, the regulations are unconstitutional. By suppressing
speech about abortion and mandating speech about prenatal
care in the informed consent dialogue, the Secretary has im
permissibly infringed upon the First Amendment rights of the
physician and the patient. The counseling, referral and advocacy
ban is unquestionably viewpoint-discriminatory, censoring any
1 0
speech about abortion which is neutral or nonpejorative and
compelling pro-childbirth speech. Because the counseling and
referral bans are “aimed at the suppression of dangerous ideas”,
they are not saved by the fact that they are in the guise of a
government funding decision. The separation requirement like
wise violates free speech guarantees by impermissibly burdening
the independently-funded expressive activities of Title X
grantees.
Lastly, the counseling and referral bans impermissibly in
terfere with the woman’s privacy right to make a fully informed
decision whether or not to terminate her pregnancy. Speech
restrictions such as these do not merely leave the woman in the
same position as if there were no funded family planning
services, but affirmatively mislead her, and erect obstacles to
the exercise of her constitutional rights.
ARGUMENT
I. THE REGULATIONS EXCEED HHS’ STATUTORY
AUTHORITY AND ARE ARBITRARY AND
CAPRICIOUS
For 17 years following enactment, the Secretary has im
plemented Title X in full recognition of the fact that Congress,
while not intending to fund abortions, expected that women
using Title X funded facilities might receive counseling and refer
ral for abortion, and that Title X funding for family planning
services would be an integral part of programs by states, localities
and private entities to provide such services. The Secretary also
recognized that the limitation on Title X funding of abortion
should in no way limit or interfere with the programs with which
the Title X funded program was to be coordinated, even if the
non-Title X funded programs provided for abortion. The
Secretary has now abandoned these understandings of his
responsibilities under Title X. In promulgating the new regula
tions, he has exceeded his authority and violated virtually every
established principle of statutory construction.
1 1
A. The Regulations Prohibiting Abortion Counseling And
Referral Are Contrary To The Intent Of Congress As Well
As Arbitrary And Capricious
1. The Regulations Are Contrary To The Plain
Language o f Section 1008 o f Title X
The starting point for interpreting a statute is its language.
Because the Court assumes that the ordinary meaning of the words
used expresses the legislative purpose, the language of the statute
is conclusive unless there is clearly expressed legislative intent to
the contrary. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987).
In discerning the plain meaning of the statute, the Court must
look not only at “the particular statutory language at issue” but
also at “the language and design of the statute as a whole.”
K M art Corp. v. Cartier, Inc., 108 S. Ct. 1811, 1817 (1988); see
also Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 405-06 (1988);
Dole v. United Steelworkers o f America, 110 S.Ct. 929, 935 (1990).8
Considered on its own and in the context of Title X as a whole,
the text of § 1008 provides a fully sufficient basis for deciding
this case. Under Title X, the Secretary is empowered to make
grants and enter into contracts “to assist in the establishment and
operation of voluntary family planning projects which shall offer
a broad range of acceptable and effective family planning m eth
ods and services .” 42 U.S.C. § 300(a). (emphasis added). With
§ 1008, Congress addressed the place of abortion within Title X
8 The court of appeals below failed to heed basic principles of statutory con
struction when it concluded that § 1008 “specifically excludes” counseling and
referral for abortion from the scope of Title X. New York v. Sullivan, 889 F.2d
at 408. Nowhere in § 1008, or in the statute as a whole, is abortion counseling
and referral “specifically excluded”. On the contrary, the only category specifi
cally excluded by § 1008 is the “method” of “abortion” and not talk about abor
tion. Second, the Second Circuit failed to consider the “ordinary usage”, see
Green v. Bock Laundry Mach. Co., 109 S. Ct. 1981, 1994 (1989) (Scalia, J.,
concurring), of the terms “method of family planning” and “abortion.” Third,
the Second Circuit's overly broad reading of § 1008 contravenes the rule that
additional statutory exceptions should not be implied where certain exceptions
have been explicitly enumerated. Andrus v. Glover Constr. Co., 446 U.S. 608,
616-17 (1980). Finally, the Second Circuit failed to construe § 1008 in con
junction with the statute as a whole, see K Mart, 108 S. Ct. at 1817, by not
honoring the statutory distinction between “methods” and “services.”
12
in clear, precise language. As an exception to “the broad range
of acceptable and effective family planning methods and ser
vices” that Title X recipients were required to offer, § 1008 states:
“None of the funds appropriated under this subchapter shall
be used in programs where abortion is a m ethod of family plan
ning.” 42 U.S.C. § 300 a-6 (emphasis added).
Taken alone, the words of § 1008 denote only that Congress
wanted to exclude the abortion procedure from the range of fami
ly planning methods funded under Title X. The word “abortion”
commonly refers in both general and medical usage to the act or
procedure of terminating a pregnancy.9 See Webster's Third New
International Dictionary 5 (1971); Stedm an’s M edical Dictionary
Fifth Unabridged L aw yer’s Edition 3-4 (1987). A “method” is “a
procedure or process for attaining an object.” See W ebster’s 1422-
23. Likewise, in the medical community, the term “method” refers
to a procedure or technique, and in particular to the procedure
of an operation. See The Sloane-D orland A nnotated M edical —
L egal D ictionary 448 (1987) (“method” defined as “the manner
of performing any act or operation; a procedure or technique”);
see also D orland’s Illustrated M edical D ictionary 808 (1981);
Stedm an’s 867. Thus, in their ordinary context, the words of
§ 1008 spell out a restriction on the funding of a particular pro
cedure, that is, abortion. It does not set forth an additional re
striction on the mere provision of information relating to abortion.
Moreover, by requiring Title X programs to provide both fami
ly planning “methods” and “services,” Congress treated the two
as distinct concepts. Section 1008 excludes only a particular fami
ly planning m ethod — abortion — from the Act’s scope Nothing
in the statute authorizes a similar restriction on the range of
comprehensive family planning “services” to be provided. When,
as here, Congress explicitly enumerated certain exceptions, this
Court has often refused to enlarge the list by implication. See,
e.g ., Consum er Product Safety C om m ’n v. G TE Sylvania, Inc.,
447 U.S. 102, 109 (1980); Andrus v. G lover Constr. Co., 446 U.S.
608, 616-17 (1980). Had Congress wished to exclude abortion
• It is appropriate for the Court to consider dictionary definitions of the words
Congress used. See, e.g., Pittson Coal Group v. Sebben, 109 S. Ct. 414, 420
(1988); Lukhard v. Reed, 481 U.S. 368, 374-75 (1987).
13
counseling and referral from its scope, it certainly could have
made its intention known. See, e.g., Adolescent Family Life Act,
42 U.S.C.A. § 300 z-10 (West 1982).
The rule of narrow construction of statutory exceptions is par
ticularly apt in interpreting a remedial statute, Piedmont 6- North
ern Ry. Co. v. Commission, 286 U.S. 299, 311-12 (1932), see also
3 Sutherland Statutory Construction § 64.08 at 217 (Sands 4th
ed. 1986) (grant-in-aid statutes remedial in character), especially
where it has been carefully crafted to effectuate a delicate com
promise. Thus, while the statute expresses a preference for
preventive family planning over abortion, it leaves Title X physi
cians free to provide a full range of acceptable and effective fami
ly planning services. A medically appropriate family planning
program must offer counseling and referral services, including
counseling and referral for abortion. See Current Opinions o f
the Council on Ethical and Judicial A ffairs o f the American
M edical Association Op. 8.07 (1986). Sammons H 3 (261JA).
The regulations conflict with the plain meaning of § 1008 in yet
another way. They interpret “programs where abortion is a meth
od of family planning” to embrace programs where any form of
counseling or referral for abortion takes place. Yet it is clear that
Congress was concerned with the specific possibility of funding
abortions as a substitute for preventive family planning, not with
the possibility of providing information about any and all uses of
abortion.10 In departing from the plain meaning of § 1008, the
Secretary has fundamentally misconstrued congressional intent.0
10 Congressional fears of abortion becoming a method of family planning were
never borne out. There is no evidence that Title X providers have ever counseled
pregnancy termination as a “family planning option” equivalent to diaphragms,
intrauterine devices (IUD’s), or oral contraceptives. Instead, Title X programs,
like all high quality providers of reproductive health services, treat abortion
as a backup to contraceptive or human failure and as an option when pregnan
cy termination is medically indicated. See, e.g., Felton 5 13a (88a); see also
Rust 1 17a (254-55JA); Tiezzi 1 8a (272-73JA).
u Until recently, HHS heeded the words of § 1008 when interpreting that pro
vision. See National Center for Family Planning Services, Health Services and
Mental Health Administration, Dep't of HEW, A Five-Year Plan for the
Delivery of Family Planning Services, (Oct. 1971) (“Within the context of
(Footnote continued)
14
2. The Legislative History o f Section 1008 Is Consist
ent W ith Its Plain M eaning
a. Contem poraneous History
Congress’ intention that the services provided by Title X grantees
be broad in scope permeates the legislative history. For example,
a contemporaneous Senate Report states that the legislation’s
purpose is “to make comprehensive, voluntary family planning
services” available to all persons who desire them. S. Rep. No.
1004, 91st Cong., 2d Sess. 3, reprinted in 116 Cong. Rec. 24094
(1970). This Report also emphasizes that “family planning [is
not] merely a euphemism for birth control. It is properly a part
of comprehensive health care and should consist of much more
than the dispensation of contraceptive devices.” Id. at 24095-96.
The legislative sources also reveal that Congress specifically
intended the comprehensive services funded by Title X to include
counseling and referral. Thus, the Senate Report declares that
a “successful family planning program” must offer “[mjedical
services” that include “consultation, examination, prescription,
and continuing supervision, supplies, instruction, and referral to
other m edical services as needed.” S. Rep. No. 1004, 91st Cong.,
2d Sess. 10, reprinted in 116 Cong. Rec. 24094, 24096 (1970) (em
phasis added). Similarly, the House Report accompanying the le
gislation, under the heading “Services,” anticipates: “In all pro
jects, inform ation would be provided on the fu ll range o f fam ily
planning m ethods. . . .” H.R. Rep. No. 1472, 91st Cong., 2d Sess.
10, reprinted in 1970 U.S. Code Cong. & Admin. News 5068,
5074 (emphasis added).
The Conference Report, a legislative source entitled to great
weight, N ational Ass’n o f Greeting Card Publishers v. United
family planning service programs, abortions are not viewed as a method of
fertility control, but as a service that should be available in accordance with
local laws only in the event of a human or contraceptive failure”) (41-42JA);
see also Memorandum from H EW (July 25, 1979) (Attachment A to Amicus
Brief for HHS, Valley Family Planning v. North Dakota, 661 F.2d 99 (8th Cir.
1981) (No. 80-1471). (“Indeed, we think that where such a referral [for abor
tion] is necessary because of medical indications, abortion is not being con
sidered as a method of family planning at all, but rather as a medical treat
ment possibly required by the patient’s condition...”) (73a).
15
States Postal Serv., 462 U.S. 810, 832 n.28 (1983), confirms that
§ 1008 is a narrow prohibition, not intended to interfere with
Title X ’s expansive scope:
It is, and has been, the intent of both Houses that the
funds authorized under this legislation be used only
to support preventive family planning services,
population research, infertility services, and other
related m edical, in form ational, and educational a c
tivities. The conferees have adopted the language con
tained in § 1008, which prohibits the use of such funds
fo r abortion , in order to make clear this intent.
H.R. Conf. Rep. No. 1667, 91st Cong., 2d Sess. 8-9, reprinted in
1970 U.S. Code Cong. & Admin. News 5081-82 (emphasis added).
Moreover, the floor statement by Representative Dingell, author
of § 1008, establishes that it was directed only at the abortion
procedure. Rep. Dingell explains that he designed § 1008 to prevent
Title X, through operation of the Supremacy Clause, from becoming
the vehicle through which that procedure was legalized nationwide:
The criminal codes of most States sanction abortion
only in certain strict and clearly-circumscribed cases.
Even the broadest interpretation of these laws would
not lead one to the conclusion that they in any way
allow for such a procedure as an accepted method of
family planning. For the Congress o f the United States
to appropriate funds fo r a procedure w hich w ould
violate the criminal law o f a vast majority o f American
jurisdictions would b e to raise constitutional questions
o f a m ost serious n atu re . . . .
116 Cong. Rec. 37369 (1970); See also id. at 37367“
“ Rep. Dingell’s remarks also indicate that he did not offer § 1008 in order
to curtail medically necessary abortions. 116 Cong. Rec. at 37379 n. 64. If
Rep. Dingell viewed medically necessary abortions as outside § 1008’s pro
scription, he surely could not have viewed counseling and referral for medically
necessary abortions as forbidden by the Act.
The Secretary has cited an isolated statement made on the floor by Rep.
Dingell in which he referred to the Committee’s intent that “abortion is not to
(Footnote continued)
1 6
In addition, the Conference Report establishes that § 1008 was
not intended to restrict the use by Title X projects of non-Title
X funds. The Report is emphatic: “[Section 1008] does not and
is not intended to interfere with or limit programs conducted
in accordance with State or local laws and regulations which are
supported by funds other than those authorized under this legisla
tion.” H.R. Conf. Rep. No. 1667, 91st Cong., 2d Sess. 8-9, reported
in 1970 U.S. Code Cong. & Admin. News 5082. By defining §
1008 to apply to “all activities conducted by the federally funded
project,” Pr., 53 Fed. Reg. 2922 (317A), whether the activities are
federally or non-federally funded, the regulation barring all abor
tion information contravenes this directive not to burden
separately-funded activities.
b. Subsequent History
Postenactment legislative history, while not accorded the weight
of contemporary legislative history, can provide evidence of
legislative intent in some circumstances. North Haven Bd. o f
Educ. v. Bell, 456 U.S. 512, 530-35 (1982). One of these cir
cumstances is congressional reenactment without change of a
statute that has been the subject of an administrative interpreta
tion. NLRB v. Aerospace Co., 416 U.S. 267, 274-75 (1974). “ ‘Con
gress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when
it reenacts a statute without change’ ”. Lindahl v. O ffice o f Per
sonnel Management, 470 U.S. 768, 782 n.15 (1985) (citations omit
ted). An agency is presumed to have correctly discerned legislative
intent when Congress reenacts a statute after the agency’s con
struction has been “fully brought to [its] attention,” North Haven,
456 U.S. at 535; and an agency’s interpretation is entitled to
be encouraged or promoted in any way through this legislation.” 116 Cong.
Rec. 37375 (1970), cited in Pr., 53 Fed. Reg. 2923 (318A). Nothing in Rep.
Dingell’s lengthy statement, however, suggests an intent to prohibit the pro
vision of neutral, objective abortion information and referral services.
Moreover, in comments on the new regulations, he abjured any intent to bar
counseling and referral for abortion, and chastised the Secretary for “misusing]
. . . my floor statement from the debate.” Letter from John D. Dingell to Otis
R. Bowen (Oct. 14, 1987) (137-39JA).
At any rate, even the contemporaneous remarks of a legislator who spon
sors a bill are not controlling in analyzing legislative history. Consumer Prod
uct, 447 U.S. at 118; Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979).
17
substantial deference especially when it “involves issues of con
siderable public controversy.” United States v. Rutherford, 442 U.S.
544, 554 (1979). Both enhancing factors are present in this case
Few issues have been as closely followed and hotly debated,
in and out of Congress, as abortion. In that sense, this case
resembles Bob Jones Univ. v. United States, 461 U.S. 574, 599-601
(1983), in which this Court viewed Congress’s failure to modify
Internal Revenue Service rulings on racially discriminatory
schools as ratification of the rulings. Consequently, Title X has
been the subject of unusually close scrutiny by members of Con
gress. See, e.g ., 121 Cong. Rec. 9790 (1975) (“The Committee
has also been watching the administration of these programs
very closely.”) (statement of Sen. Cranston). Congress also has
repeatedly been made aware through annual agency reports13
and General Accounting Office (“GAO”) Audits that HHS in
terpreted Title X to allow grants to programs that counsel or
refer for abortion.14 In light of this history, it is sheer fancy to
maintain that Congress was not aware of HHS’ policies on abor
tion counseling and referral in Title X programs.
Congress reauthorized Title X six times without change,15 and
declined to use any of those opportunities to change agency
13 Pursuant to the statute, Congress has received and reviewed reports from
the agency throughout the life of the statute 42 U.S.C.A. 300a-6a. Beginning
in 1974, Congress required the agency to prepare and submit Five Year Plans
to Congress for annual review. Congress has repeatedly reviewed and referred
to these Five Year Plans and in fact has given the agency specific directions
for their improvement. See H.R. Rep. No. 1161, 93d Cong., 2d Sess. 15 (1974)
(261A); H.R. Conf. Rep. No. 1524, 93d Cong., 2d Sess. 59-60 (1974); S. Rep.
No. 29, 94th Cong., 1st Sess, 60-62, reprinted in 1975 U.S. Code Cong. & Ad
min. News 469, 522-25; H.R. Rep. No. 159, 99th Cong., 1st Sess. 7-8 (1985)
(279A); see also 121 Cong. Rec. 9789-90 (1975).
14 A GAO report issued in 1982 expressly noted that the Department had long
taken the position that a Title X grantee could provide information about abor
tion services; provide the name, address, and telephone number of abortion
providers; inspect facilities to determine their suitability to provide abortion
services; and pay dues to organizations that advocate the availability of abor
tion services. GAO, Restrictions on Abortion and Lobbying Activities In Family
Planning Programs Need Clarification 12 (1982) (107JA).
15 Title X was reauthorized in 1973. Pub. L. No. 93-45, 87 Stat. 91 (1973);
again in 1975, Pub. L. No. 94-63, 89 Stat. 304, 306-07 (1975); again in 1977,
(Footnote continued)
18
policy.16 In fact, the committee reports accompanying the
reauthorizations demonstrate that Congress intended abortion
counseling and referral to be among the services offered by T i
tle X clinics. In 1974, the House Report accompanying the ex
tension of Title X emphasized the importance of providing com
plete information about all the available services and of obtain
ing full and informed consent from the individuals served. H.R.
Rep. No. 1161, 93d Cong., 2d Sess. 18-19 (1974). In 1975, the
Senate Committee Report accompanying the reauthorization
of Title X for the following year reiterated that any medical pro
cedure or service funded by Title X required full explanation,
disclosure of alternatives, and an offer to answer inquiries. S.
Rep. No. 29, 94th Cong., 1st Sess. 62, reprinted in 1975 U.S. Code
Cong. & Admin. News 469, 524-25.
In 1978, a Senate Report accompanying reauthorization re
quired discussion of the option of abortion as part of the fami
ly planning services funded under Title X. The Senate Report
emphasizes that informed consent to family planning must in
clude discussion of “the risks of various alternatives, such as
voluntary sterilization, abortion, and other options chosen volun
tarily.” S. Rep. No. 822, 95th Cong., 2d Sess. 39, reprinted in
124 Cong. Rec. 16454 (1978).
In 1985, Congress extended Title X ’s funding by continuing
resolution. The House Report accompanying the resolution
adopted HHS’s 1981 Program Guidelines and interpreted § 1008
to permit, and Title X to require, nondirective counseling on
the option of abortion. The House Report explicitly declared that
Pub. L. No. 95-83, 91 Stat. 383 (1977); in 1978, Pub. L. No. 95-613, 92 Stat.
3093 (1978); in 1981, Pub. L. No. 97-35, 95 Stat. 535 (1981); and in 1984, Pub.
L. No. 98-512, 98 Stat. 2409 (1984). See also H.R. Rep. No. 159, 99th Cong.,
1st Sess. 2 (1985) (summarizing history). Since 1985 the Title X program has
been funded through a series of continuing resolutions.
“ Contrary to the contention of the court below, 889 F.2d at 408, reauthoriza
tion without change of a federal grant statute, like any other reenactment,
can imply ratification of an agency construction, and is strongly probative
of legislative intent when Congress was aware of the agency interpretation.
See Grove City College e. Bell, 465 U.S. 555, 568-69 n.19 (1984).
19
[n]o agency shall be considered to be in violation of
the language [of Title X] . . . if a pregnant woman
is offered information and counseling regarding her
pregnancy; those requesting information on options
for the management of an unintended pregnancy are
to be given non-directive counseling on the follow
ing alternative causes of action, and referral upon re
quest: a. prenatal care and delivery; b. infant care,
foster care or adoption; c. pregnancy termination.
H.R. No. 403, 99th Cong., 1st Sess. 6 (1985). It is clear from
this and other committee reports that Congress specifically con
sidered and approved the provision of abortion-related infor
mation services in clinics funded under Title X.
3. The Regulations are Entitled to L ittle D eference
Because the language, structure and history of the statute un
equivocally express Congress’ intention to permit abortion
counseling and referral, this Court should not defer to HHS’
newly hatched interpretation of the statute. See Dole, 110 S. Ct.
at 934-38; see also Board o f Governors o f the Federal Reserve
System v. Dim ension Financial Corp., 474 U.S. 361, 368 (1986)
(“[t]he traditional deference courts pay to agency interpreta
tion is not to be applied to alter the clearly expressed intent of
Congress”); Chevron U.S.A., Inc. v. Natural Resources D efense
Council, Inc., 467 U.S. 837, 842 (1984) (“If the intent of Con
gress is clear, that is the end of the matter”).
Even if the Court views congressional intent on the counsel
ing and referral issue as ambiguous, however, it should not ac
cord much weight to the newly devised administrative construc
tion proffered by HHS. It is well-established that regulations
that are neither consistent nor longstanding are entitled to lit
tle deference. See, e .g ., Bow en v. A m erican Hosp. Ass’n, 476
U.S. 610, 646 n.34 (1986); C ardoza-Fonseca, 480 U.S. at 446-47
n.30; N LRB v. United Food It C om m ercial Workers Union, 484
U.S. 112, 124 n.20 (1987).17 The regulations challenged here
17 Chevron, which predates the cited cases, does not alter this principle. In
Chevron, this Court found that an agency’s continuing revision of regulations
governing industrial air pollution was in response to an objective change of
(Footnote continued)
20
reverse a longstanding agency policy that permitted nondirec
tive counseling and referral for abortion. This prior interpreta
tion, and not the newly minted one devised by HHS, provides
persuasive evidence of congressional intent.18
Not once, in the 17 years after the enactment of Title X, did
the Secretary even suggest that § 1008 restricted family plan
ning services so as to bar the provision of information about or
referral for abortion. Departmental interpretations under both
Republican and Democratic administrations were consistently
to the contrary.19
The agency first promulgated regulations to govern the pro
gram in 1971, during President Nixon’s administration. 36 Fed.
conditions within the industry. The change in regulations did not, therefore,
lessen the deference accorded to the agency. This case, however, does not in
volve any objective change of conditions within the field of family planning.
18 First, it was adopted contemporaneously with the passage of the statute.
See NLRB v. United Food, 484 U.S. at 124 n.20; Commodity Futures Trading
Comm'n v. Schor, 478 U.S. 833, 846 (1986). Second, the government agency
charged with administering the law (originally, HEW ) was active in the
legislative process and consequently had special knowledge of what the
legislature intended. See Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 41-42 (1983). Third, the agency’s contemporaneous con
struction had remained consistent for 17 years. See EEOC v. Associated Dry
Goods Corp, 449 U.S. 590, 600 n.17 (1981); Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205, 210 (1972); cf. Bowen v. American Hosp. Ass’n, 476
U.S. at 646 n. 34.
" In fact, since 1971, HHS has repeatedly explained why § 1008 does not pro
hibit abortion-related referral and counseling in Tide X projects. First, because
nondirective counseling of pregnant women regarding available options and
“mere referral” for abortion are simply informational, they do not “promote
or encourage” abortion. See Memorandum from C. Conrad, Senior Attorney,
Pub. Health Div., to E . Sullivan, Office for Family Planning (Apr. 14, 1978)
(56JA). Second, referral of clients for abortion when contraception fails or
when abortion is medically indicated does not violate § 1008 because in such
instances abortion is not “a method of family planning.” Memorandum from
C. Conrad, Senior Attorney, Pub. Health Div., to E . Sullivan, Office for Family
Planning (July 25, 1979) (63JA). Third, nondirective counseling is not only
permitted under § 1008 but is required by the Code of Ethics of the AMA.
Memorandum from L. Heilman, M.D., Deputy Assistant Secretary for Popula
tion Affairs, to H. Connor, M.D., Regional Health Adm’r (November 19, 1976)
(74a).
21
Reg. 18465 (1971). Giving shape to the comprehensive nature of
the program, the agency required all Title X grantees to provide
“medical services related to family planning including . . . neces
sary referral to other medical facilities when medically indi
cated,” and “social services related to family planning, including
counseling . . . ” 36 Fed. Reg. 18465,18466 (1971) § 59.5(d). Title
X grantees were also specifically required to make provision for
“coordination and use of referral arrangements with other pro
viders of health care services. . . Id. at 18466 § 59.5(i). These
contemporaneous regulations also acknowledge that the funding
prohibition of § 1008 is limited to the abortion procedure. 37
Fed. Reg. 26594 (1972) § 59.5(a)(9) (“Projects will not provide
abortions as a method of family planning”) (emphasis added).
Until early 1988, these regulations remained virtually unchanged.
Furthermore, the first Five Year Plan that the Secretary sub
mitted to Congress indicated that referrals for abortions would
be appropriate in some circumstances:
Within the context of family planning services pro
grams, abortions are not viewed as a method of fer
tility control but as a service that should be available
in accordance with local laws only in the event of a
human or contraceptive method failure.
HEW National Center for Family Planning Services, Health
Services and Mental Health Administration, A Five Year Plan
f o r Fam ily Planning Services 319 (1971); id. at 318.
Interdepartmental interpretations confirmed that § 1008 was
a narrow prohibition. Only months after Title X was enacted,
the Office of General Counsel wrote that § 1008 prohibited only
the provision of abortions.20 Contrary to the Secretary’s revisionist
view that “requirements for options counseling and abortion
referral were first announced in 1981,” Pr., 53 Fed. Reg. 2923
(318A), the first Program Guidelines issued by HHS under Title
X specifically directed grantees to provide “pregnancy counsel
ing” as appropriate and referral “for any needed services
" See Memorandum from J. Mangel, Deputy Asst. General Counsel, HEW, to
L. Heilman, M.D., Deputy Asst Sec’y for Papulation Affairs (Apr. 20, 1971) (39JA)
(“. . . inasmuch as the collection of data does not itself involve the provision
of abortions, section 1008 would not, from a literal reading appear applicable”).
22
not furnished through the facility.” 'Program Guidelines fo r Project
Grants fo r Family Planning Services 16 (1976) (emphasis added).
There is no exclusion of abortion from these counseling and refer
ral requirements; in fact, the 1976 Guidelines specifically di
rected grantees to discuss abortion with a patient when a preg
nancy was discovered with an IUD in place. Id. at 15.
These requirements were retained and reinforced in the 1981
Guidelines.* 11 The 1981 Guidelines list services that “must be pro
vided” by Title X recipients as including (1) referrals for
“pregnancy management,” (2) “education on the benefits and
risks of the various contraceptive alternatives,” and (3) at the
patient’s request, “information on options for the management
of an unintended pregnancy,” including “non-directive counsel
ing” on “[pjrenatal care and delivery,” “[ijnfant care, foster care,
or adoption,” and “[pjregnancy termination”. 1981 Guidelines
§§ 7.4, 8.0, 8.6 (emphasis in original). HHS interpretive opin
ions have reiterated this view. For example, in a 1978 legal opin
ion, HHS concluded that under § 1008 a Title X project may
“[sjupply information to those who do not want to continue their
pregnancies, and may be interested in obtaining abortions,” and
“[rjefer clients to doctors to obtain abortions.” Memorandum
from C. Conrad, Office of Gen. Counsel, to E. Sullivan, Office
for Family Planning (Apr. 14, 1978) (56JA).22
11 In the past, this Court has considered agency guidelines in determining
legislative intent. See General Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976)
(citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975)). The court
of appeals in this case accorded no discernible weight to HHS program
guidelines.
11 See also Memorandum from L. Belmonte, Regional Program Consultant,
Office for Family Planning (May 25, 1979) (“[t]he provision of information
on abortion services and the mere referral of a patient to another provider
for such a procedure are permissible”) (75a); Memorandum from L. Heilman,
M.D., Deputy Assistant Secretary for Population Affairs, to H. Connor, M.D.,
Regional Health Adm’r (Nov. 19,1976) (74a). The agency later confirmed that
Title X required “referral to a provider who might recommend or provide an
abortion in cases where such a referral is necessary because of the patient’s
medical condition or the condition of the fetus . . . [A] project could not —
consistent with § 59.5(d) — refuse as a matter of policy to make such refer
rals in any case, regardless of the medical indications therefor.” Memoran
dum from C. Conrad, Senior Attorney, Pub. Health Div., to E . Sullivan, Of
fice for Family Planning, (July 25, 1979) (62JA).
23
4. The Regulations Are Arbitrary and Capricious
Not only do the agency’s regulations frustrate the goals of
Congress, they also reverse a 17 year old policy permitting non
directive counseling and referral for abortion without ar
ticulating an adequate, reasoned basis for the change. As this
Court has held, “[ajgency deference has not come so far that
we will uphold regulations whenever it is possible to ‘conceive
a basis’ for administrative action”. An agency must “explain the
rationale and factual basis for its decision”. Bowen v. Am erican
Hosp. Ass’n, 476 U.S. at 626-27.
When an agency changes its course, it must provide a “reasoned
analysis for the change,” M otor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983), and a “rational con
nection between the fact found and the choice made.” Id. at
43, quoting Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962). This Court should carefully examine the
Secretary’s interpretation to see if the agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise
M otor Vehicle M frs., 463 U.S. at 43. If the Secretary’s explana
tion and rationale are deficient, the regulations should be
stricken as arbitrary and capricious.
The Secretary articulated two bases for his radical change
in interpretation of § 1008. First, he claims that § 1008 requires
a prohibition on nondirective counseling and referral for abor
tion. Pr., 53 Fed. Reg. 2923 (318A). As the foregoing discussion
shows, such is not the case. See supra pp. 11-19. Second, the
Secretary concludes, in the exercise of his “general administrative
discretion”, that the current guidelines “do not faithfully and
effectively maintain the prohibition contained in § 1008.” Id.
He cites two grounds for this conclusion: (1) that the language
in prior guidelines fails to offer “clear and operational guidance”
to grantees for preserving the distinction between Title X pro
grams and abortion as a method of family planning; and (2) that
24
the Office of the Inspector General (“O IG ”) and the GAO had
urged the Secretary — five years earlier — to give more for
malized direction to grantees on the prohibition in § 1008. Id.
In 1982, the GAO reported that the specifics of the Depart
ment’s abortion policy were contained only in legal opinions
issued by its Office of General Counsel, id. at 2934 (107JA); that
only some of the clinics reviewed for the report had received
copies of the legal opinions, GAO Report at ii (86JA); and that
the Secretary therefore should clarify the Department’s policy
by incorporating it into the program regulations and guidelines.
Pr., 53 Fed. Reg. 2924 (319A); GAO Report at 22 (121JA). The
OIG agreed that the Department should provide “specific pro
gram guidance regarding the scope of § 1008.” Pr., 53 Fed. Reg.
2924 (319A). The GAO Report specifically concluded that there
was “no evidence that Title X funds had been used for abor
tions or to advise clients to have abortions”, and “no indications
that any women were advised or encouraged to have abortions.”
GAO Report (84, 86JA).
The facts underlying the Secretary’s decision thus are con
tained in reports finding that Title X clinics do not advise or
encourage clients to have abortions, and finding that the Depart
ment’s legal opinions should be formalized and disseminated.
Yet, rather than following these recommendations, the Secretary
revamped the Department’s seventeen-year old interpretation
and issued a total ban on nondirective counseling and referral.
There is no rational connection between the facts in the record
and the Secretary’s decision. M otor Vehicle Mfrs., 463 U.S. at 43.
In addition, the new regulations conflict with a letter the
Secretary wrote one year before the Proposed Rules were pub
lished in the Federal Register. On August 1, 1986 five members
of Congress — after meeting with HHS and getting “no action”
— wrote the Reagan Administration urging it to require HHS
to change the regulations so that anti-abortion counseling centers
could qualify for grants. Letter from Rep. Christopher H. Smith,
et al., to Donald T. Regan (Aug. 1, 1986) (98-99JA). The
Secretary himself responded, explaining that the restrictions
would be changed so that anti-abortion grantees would no longer
be required to counsel and refer for abortion, but “grantees who
wish to provide counseling and referral on all pregnancy
25
options, including abortion, will still be permitted to do so. . .
Letter from Secretary Otis R. Bowen to Hon. Vin Weber (Aug.
19, 1986) (139A).
One year later, in the Proposed Rules, the Secretary was still
responding to the concern that organizations that refuse to
counsel or refer for abortion were ineligible for Title X grants,
but without explanation, his response had veered from perm it
ting nondirective counseling and referral for abortion to pro
hibiting it. 52 Fed. Reg. 33212; Section 59.8(a) (20-21A). In the
Final Rules, the Secretary again failed to explain his revisionist
position. 53 Fed. Reg. 2929 (324A). In light of the 1986 letter,
the Secretary was obliged, at the very least, to consider whether
the regulations could be modified to perm it counseling and refer
ral for abortion without requiring it. See M otor Vehicle M frs. ,
463 U.S. at 46. No such explanation or consideration appears
in the record.
It is clear that the administrative record cannot rationally
form the basis for the Secretary’s about-face. W hat really
prompted the Secretary to act was political pressure to bring
the Title X program into line with the Reagan Administration’s
position on abortion. See Letter from Rep. Christopher H. Smith,
et al., to Donald T. Regan (Aug. 1, 1986) (98-99a). Indeed, the
Secretary has conceded that the new regulations are the result
of a shift in the political climate. See Tr. of oral argument at
52 (394A), id. at 54 (396A). HHS does not even disavow the pa
tent bias of the regulations in favor of childbearing and against
abortion. Pr., 53 Fed. Reg. 2943 (338A).
Various provisions of the new regulations are so overbroad
that they reflect only a desire to placate political critics. For
example, a Title X clinic must refer pregnant clients for prenatal
care by distributing a list of providers that promote the welfare
of mother and unborn child, § 59.8(a)(2), regardless of their
medical or professional capabilities. § 59.8(a)(3). Indeed, the
regulations go so far as to forbid Title X clinics from providing
the yellow pages of an ordinary telephone book to a patient re
questing information on abortion. See New York v. Sullivan,
889 F.2d at 415, 416-17 (Cardamone, J., concurring and Kearse,
J., dissenting); 53 Fed. Reg. 2942 (337A). Any explanation for
these regulations would be so “implausible that it could not be
26
ascribed to a difference in view or the product of agency ex
pertise.” M otor Vehicle M frs., 463 U.S. at 43.
Although an agency may, in some circumstances, “properly
rely upon the incumbent administration’s view of wise policy
to inform its judgments,” Chevron, 467 U.S. at 865 (emphasis
added); M otor Vehicle Mfrs., 463 U.S. at 59 (Rehnquist, J.,
dissenting), it must not rely on factors Congress had not intended
it to consider. Id. at 42-43. HHS has utterly failed here to justify
the total reversal of its 17 year old policy.
B. The Requirement Of “Physical And Financial Separation”
In Section 59.9 Of The Regulations Is Both Contrary To
The Intent Of Congress And Arbitrary And Capricious
1. Congress Did Not Authorize The Physical Separa
tion Requirem ent
The program integrity regulations require that a program
receiving Title X funds be physically separated from programs
that engage in activities prohibited by the statute or the
Secretary’s new regulations. The Second Circuit treated this
separation requirement as if it were a “specific restriction^ em
bodied in” the statute. New York v. Sullivan, 889 F.2d at 410.
Nothing in the language of § 1008, however, indicates that T i
tle X programs must be physically isolated from other health
care programs. On the contrary, the statute requires state
authorities to submit a plan “for a coordinated and com prehen
sive program of family planning services”. 42 U.S.C. §300a(a)
(1982) (emphasis added). The segregation requirement of the
new regulations in fact contradicts this requirement, as the First
Circuit recognized. Mass. v. S ecy , 899 F.2d at 59-60.
The legislative history confirms the statutory language As dis
cussed above, the original Conference Report expressly noted that
§ 1008 was not intended to burden programs supported by funds
other than Title X. See supra p. 16. To the extent that independently
supported programs may provide abortion-related services, the
Secretary’s separation requirements interfere with and limit those
programs in a manner directly contrary to Congress’ express in
tent. In addition, the regulations run afoul of the congressional
27
desire to avoid burdening programs funded by private sources
or a state.23
Thus, the separation requirement obstructs the statutory goal
of “making comprehensive voluntary family planning services
readily available to all persons desiring such services.” Pub. L.
No. 91-572, § 2(1), 84 Stat. 1504 (1970). Many Title X programs
share facilities and personnel with programs that provide abor
tions or services that the Secretary now deems violate § 1008.24
The new regulations would require many clinics either to give
up their Title X funding or terminate family planning services
altogether. See Gesche 1 18 (175-76JA); Fink 1 13 (165-67JA).
By contracting the scope of available family planning services
the new regulations directly contradict Congress’ stated desire
to expand those services.
The legislative history of Title X also demonstrates that Con
gress intended to achieve the goal of expanded access to family
planning services by integrating, to the maximum extent feasi
ble, family planning and other health care programs. See, e.g .,
H.R. Rep. No. 1472, 91st Cong., 2d Sess. 10 (1970) (“The project
D New York was cognizant of this scheme and also desired to establish and support
financially an efficient and coordinated delivery system. For example, under
state law, grants made by NYSDOH to family planning and other health care
providers must be awarded on the basis of a competitive process where consid
eration is given to factors such as the project’s ability to increase and improve
access to health care services for poor and underserved populations. N.Y.S. Pub.
Health Law § 2807-b. The new regulations will in fact make impossible efforts
to maximize services and improve access, since family planning providers under
New York law must provide nondirective counseling and abortion referrals
and will thus be ineligible for Title X funds. See Part II, A, 3, infra.
Congressional intent to preempt or impair state regulation in areas of tradi
tional state concern, especially in areas of health care and medical regula
tion, must be supported by a clear indication of intent and will not be in
ferred. Bowen v. American Hosp. Ass’n, 476 U.S. at 644. See also Hillsborough
County u. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985)
(noting the “presumption that state or local regulation of matters related to
health and safety is not invalidated under the Supremacy Clause”). Here, Con
gress has expressed its intent that programs run in accordance with state and
local laws not be interfered with by Title X.
14 In 1982, for example, HHS estimated that 74 organizations receiving Title
X funds also performed abortions at clinics co-located with the Title X clinics.
GAO Report (85JA).
28
grants under this legislation would permit the establishment of
coordinated, community-based programs in hospitals and public
or private health agencies. . . . Some projects would be hospital
based. . . others would use outpatient clinic services”) (emphasis
added). The separation requirement is utterly inconsistent with this
legislative preference for integrated family planning programs.
Subsequent legislative history confirms that Congress did not in
tend to build a wall around Title X projects. In 1974, a House Com
mittee Report commended HHS for capturing “the intent of the
legislation to make family planning services widely available” by
beginning “the integration of comprehensive family planning serv
ices into other health care settings . . . highlighting] the preven
tive health nature of family planning services and the value of such
services as an integral part of ambulatory health care.” H.R. Rep.
No. 1161, 93d Cong., 2d Sess. 15-16 (1974).“
Furthermore, the Report of the Senate Labor and Public Welfare
Committee for the 1975 reauthorization of Title X declared:
The Committee encourages the use of funds otherwise
authorized by this bill for the provision of family plan
ning services, not only in specialty clinics, but, where
such facilities do not exist or are impractical, in entities
devoted to comprehensive health care for low-income
families. . . . [I]t is essential that there be close coordina
tion and, wherever possible, integration of family plan
ning services into all general health care programs.
S. Rep. No. 63, 94th Cong., 1st Sess. 65-66 (1975), reprinted in 1975
U.S. Code Cong. & Admin. News 469, 528; see also H.R. Rep. No.
191, 95th Cong., 2d Sess. 30 (1978); H.R. Rep. No. 118, 95th Cong.,
1st Sess. 10 (1977); H.R. Rep. No. 161, 93d Cong., 2d Sess. 21 (1974).
Although Congress has been repeatedly advised that the integra
tion of Title X projects with general health care facilities results
in some Title X programs being located “down the hallway” from
abortion providers, 124 Cong. Rec. 37046 (1978) (statement of Rep.
” The Conference Committee on the 1974 reauthorization of Title X was even
more explicit on the need for integration to facilitate the statutory goal of wide
access to family planning services: “[T]he conferees believe that family planning
services under Title X are most effectively provided in a general health setting
and thus encourage coordination and integration into programs offering
general health care” H.R. Conf. Rep. No. 1524, 93d Cong., 2d Sess. 58 (1974).
29
Rogers), it has steadfastly maintained the policy favoring integra
tion. In fact, a 1978 amendment proposed by Rep. Dornan,
which would have been identical in effect to § 59.9 of the new
regulations, was defeated. 124 Cong. Rec. 37046 (1978).
In the past, HHS has interpreted § 1008 to have no effect on
activities funded by sources other than Title X. During the first
year of the program’s operation, HHS issued an opinion letter
making clear that Title X-funded organizations could continue
to use non-federal funds for whatever activities they wished,
including the provision of abortions.
We do not believe the word program,’ as used in § 1008,
was intended to be so comprehensive as to include any
and all family planning activities carried on by an ap
plicant for Title X funds. For example, we do not
believe that a hospital offering abortions for family
planning purposes, consonant with State law, would
be disqualified from receiving Title X funds. . .
Memorandum from J. Mangel, Deputy Assistant Gen. Counsel, to
L. Heilman, M.D., Deputy Assistant Secretary for Population Af
fairs (Apr. 20, 1971) (38JA); see also 124 Cong. Rec. 31241-42 (1978).
This conclusion was consistent with the agency’s belief that
Title X required “coordination and use of referral arrangements
with other providers of health care services, local health and
welfare departments, hospitals, voluntary agencies, and health
services projects supported by other Federal programs.” 42 C.F.R.
§ 59.5(b)(8)(1986). Thus, the agency has never required separate
facilities or any of the other indicia of “separation” listed in § 59.9.
Indeed, the GAO report itself rejected the notion that physical
separation was necessary for compliance with § 1008. Id. at 14
(108-09JA).
Despite clear congressional intent to the contrary, § 59.9 makes
it impossible for Title X projects to make unrestricted use of non-
Title X funds or to integrate within a general health care set
ting.26 Such a restrictive interpretation of § 1008 has been rejected
“ Although the Preamble to the new regulations protests that only Title X
funds are affected, e.g., Pr., 53 Fed. Reg. 2925, 2942 (320, 337A); but see id.
at 2922 (317A) (“section 1008 extends to all activities conducted by the federally
(Footnote continued)
30
by Congress and previously had been eschewed by the agency.
Because the separation requirement “cannot be reconciled with
the statute [it] purports] to implement,” Sullivan v. Zebley, 110
S. Ct. 885, 890 (1990), the Secretary has exceeded his statutory
authority.
2. The Physical Separation R equirem ent Is Unjustified
The Secretary’s call for a physical “wall of separation” be
tween Title X facilities and those offering abortion-related ser
vices, Pr., 53 Fed. Reg. 2922 (317A), is entirely new and, as with
the radical reversal of the counseling and referral rules, this ex
pansion of the previous policy must be justified by reasoned
analysis in the record. M otor Vehicle M frs., 463 U.S. at 42.
In the Proposed Rules, the Secretary defined the requirements
of “separateness:” separate waiting, consultation, examination
and treatment rooms; separate names, addresses, telephone
numbers, receptionists, exits, and entrances; and separate finan
cial, accounting, personnel and medical record systems. § 59.9(a).
The comments criticized the Proposed Rules because they im
posed prohibitive costs for duplicating facilities and personnel;
they would force interruptions in service by requiring providers
to change locations and hire new personnel, and in some cases
would force providers out of the Title X business because of
various state restrictions on duplicative facilities; and because the
rules unreasonably fragmented the provision of medical services.
53 Fed. Reg. 2939 (334A).
Rather than specifically addressing or rebutting any of these
concerns, the Secretary tried to end-run the issue by revising the
Final Rules to eliminate the illustrative examples and to provide
for compliance decisions on a case-by-case basis. Id. at 2940 (335A).
However, the Final Rules still permit the Secretary to base his
compliance decision on any or all of the factors criticized. § 59.9.17 * 27
funded project, not just the use of federal funds for abortions within the pro
ject”), the plain terms of the regulations state otherwise. Section 59.9 imposes
substantial restrictions on the use of non-Title X funds by requiring physical
separation of activities performed with those funds from a Title X project.
27 Section 59.9 lists several factors for consideration, but provides that the rele
vant factors are not limited to those listed.
31
For example, although the failure to have a separate entrance
and exit — a requirement that “caused the most concern regard
ing costs” under the Proposed Rule - no longer would constitute
a per se violation, the Secretary will still consider it as a factor.
53 Fed. Reg. 2940 (335A). Yet the Secretary offered no rebuttal
to the comments suggesting that costs for providing separate en
trances and exits would be significant and even prohibitive.
Similarly, although the co-siting of a Title X clinic and a pro
gram that provides genetic screening and counseling — the “ex
ample typically cited” in the comments opposed to the regula
tions — would not constitute a per se violation, it could still
be considered as a factor. Id. at 2941 (336A).
The Secretary directly undercuts his own rationale for the
physical separation requirements — that § 1008 “mandates”
separation — by claiming that the case-by-case approach will
be implemented with a “greater understanding and sensitivity”
to the costs imposed. Id. at 2940 (335A). Clearly, these re
quirements are not “mandated” if they can be disregarded at the
Secretary’s discretion. The administrative record contains no sup
port for the Secretary’s broad physical separation requirements,
and they should be stricken as arbitrary and capricious.
C. The Regulations Raise Serious Constitutional Problems
For Title X
Even if the agency’s interpretation is otherwise permissible, it
is not entitled to deference where it raises serious constitutional
problems. In such a case, this “cardinal principle” of statutory
construction requires that the statute be construed so as to avoid
the constitutional problems, unless the construction would plain
ly contradict congressional intent. D eBartolo Corp. v. F lorida
G ulf C oast Bldg, and Constr., 108 S. Ct. 1392, 1397 (1988) and
cases cited therein. In applying this rule, the Court should uphold
the agency’s interpretation only if there is the “clearest indica
tion in the legislative history” of support for the agency’s con
struction. N LRB v. Drivers, 362 U.S. 274, 284 (1960); D eBar
tolo, 108 S. Ct. at 1398-99. Given the constitutional problems
here, and the absence of congressional support for the limitations
on counseling and referral or the new requirements of physical
and financial separation, the regulations should be rejected.
32
II. THE REGULATIONS ARE UNCONSTITUTIONAL
A. The Regulations Violate First Amendment Rights
1. Section 59.8 Contains Content- and Viewpoint-
Discriminatory Restrictions on Speech In Violation
o f the First A m endm ent
Section 59.8 represents an unlawful intrusion by the federal
government into the highly private and personal dialogue be
tween a pregnant woman and the Title X physician.28 By suppres
sing speech about abortion and compelling speech about child
birth, HHS seeks to transform what should be a free exchange of
information and ideas tailored to the needs of the individual
patient into a tool for promoting the federal government’s anti
abortion ideology. In so doing, the federal government has im
permissibly infringed on the First Amendment rights of the phy
sician to convey, and the patient to receive, medical information.
Physician-patient communications serve important public and
private values underlying the First Amendment. Full com
munication enables the patient to choose a course of treatment
most suited to his or her needs, i.e., it promotes personal
autonomy.29 For society, the critical interest in public health can
only be assured by protecting the free flow of medical informa
tion between doctor and patient. Thus, “the State may not, con
sistently with the spirit of the First Amendment, contract the
spectrum of available knowledge.” Griswold v. Connecticut, 381
U.S. 479, 482 (1965). The public health and the individual’s
interest in self-determination can be served only if doctor and
” Much, if not most, counseling of pregnant women in Title X clinics is per
formed by health professionals other than physicians; however, it is the quali
ty of the counseling and not the identity of the person giving it which is im
portant. City of Akron v. Akron Center for Reproductive Health, 462 U.S.
416, 447-49 (1983). Moreover, physicians under whose supervision Title X
counselors work remain ultimately responsible for the informed consent pro
cess. See N.Y. Comp. Codes R. & Regs. tit. 10, §§ 751.4, 751.9 (1987); Hoffson
v. Orentreich, 144 Misc. 2d 411, 414 (Sup. Ct. N.Y. Co. 1989).
” It is basic to American jurisprudence that “[e]very human being of adult
years and sound mind, has a right to determine what shall be done with his
own body.” Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert, denied,
409 U.S. 1064 (1972) (quoting Schloendorff v. Society of New York Hospital,
211 N.Y. 125 (1914)). Cf. Cruzon v. Missouri Dep’t of Health, 58 U.S.L.W. 4916,
4920 (June 25, 1990).
33
patient can freely communicate Suppression of information about
abortion and compulsion of speech about childbirth forces physi
cians to violate principles of sound medical practice to the detri
ment of their patients’ health, and promotes uninformed decision
making by women.
Section 59.8 ensures that as little information as possible about
abortion gets to the pregnant woman, so as to maximize the chances
that she will carry her pregnancy to term. It requires that regardless
of her medical circumstances, a woman diagnosed as pregnant must
be provided with “a list of available providers that promote the
welfare of mother and unborn child”. § 59.8(a)(3). This list can
not be used “as an indirect means of encouraging nor promoting
abortion . . . such as by weighing the list of referrals in favor of
health providers which perform abortions”. Thus, although prenatal
care providers who may perform some abortions can appear on
the list, no abortion provider “whose principal business is the pro
vision of abortions” can be included. Id.30 Moreover, the referral
list must include prenatal care providers who neither perform abor
tions nor offer abortion counseling. Id. A direct request from the
woman for information about or referral for abortion must be met
with a statement to the effect that “the project does not consider
abortion an appropriate method of family planning”, but that the
project can help her obtain prenatal care, together with a proffer
of the aforementioned list. § 59.8(b)(5). Finally, the physician must
in every instance provide the woman with “information necessary
to protect the health of mother and unborn child until such time
as the referral appointment is kept.” § 59.8(a)(2).31 * Indisputably,
this is viewpoint-based discrimination.33
30 This requirement effectively eliminates from the list all providers that would be
affordable to low-income women Henshaw 1 3-4(82a). Seventy percent of abor
tions nationally and 73.5 percent of those in New York are performed at clinics that
“priixapally” provide abortions. Henshaw 1 4 (82a). Other providers, such as hospitals,
charge much more for abortion services and would thus not be a realistic alter
native for most Title X patients. See Drisgula 1 28 (156JA); Gordon 1 7 (181-82JA).
31 These instructions belie the Secretary’s claim that they are needed to ensure
that Title X monies be used only for “preconceptional” family planning. See § 59.2.
Prenatal counseling, as well as referral to prenatal care providers, is an indispen
sable part of the script mandated by § 59.8.
33 The restrictions do not have to require “[argumentation pro or con as to the
advisability of an abortion”, to be viewpoint-discriminatory, as the court of
(Footnote continued)
34
Dictating the content of the dialogue is a profound violation
of the health care provider’s First Amendment rights. Compel
ling physicians to convey a distorted message to their patients
either by withholding medically necessary information or by
reciting medically unnecessary information, intrudes on their
ability to exercise their best medical judgment and places them
in the “undesired and uncomfortable straitjacket” which this
Court repeatedly has deplored. Planned Parenthood o f Central
Missouri v. D anforth, 428 U.S. 52, 67 n.8 (1975).
Like the statute invalidated in Thornburgh v. Amer. College
o f Obstetricians <b Gynecologists, 476 U.S. 747 (1986), the
Secretary’s restrictions “attempt to wedge [the government’s]
message discouraging abortion into the privacy of the . . .
dialogue between the woman and her physician.” Id. at 762. The
regulations specify an entire area about which the physician may
dispense no information whatsoever, “regardless of whether in
his judgment the information is relevant to [the patient’s] per
sonal decision.” City o f Akron v. Akron Center fo r Reproductive
H ealth, Inc., 462 U.S. 416, 445 (1983). Moreover, compelling
physicians to be the unwilling bearer of the government’s anti
abortion message violates their First Amendment rights. See
Wooley v. Maynard, 430 U.S. 705 (1977); see also Akron, 462 U.S.
at 472 n.16 (O’Connor, J., dissenting) (recognizing that a serious
First Amendment question arises from compelling speech by a
health provider in an informed consent dialogue).* 33
appeals suggested. 889 F.2d at 414. The regulations do require the physician,
if asked by the woman about abortion, to say something expressing disapproval
of the idea, § 59.8(b)(5). But even if the regulations were simply seen as ex
cluding all mention of abortion, they would run afoul of free speech guarantees,
since “[t]he First Amendment’s hostility to content-based regulation extends
not only to restrictions on particular viewpoints, but also to prohibition . . .
of an entire topic.” Consolidated Edison Co. v. Pub. Serv. Comm’n, 447 U.S.
530, 537 (1980). See also Boos v. Barry, 108 S. Ct. 1157, 1163 (1988).
33 The fact that these speech restrictions force physicians to deviate from sound
medical practice, and to disregard medical ethics, highlights their imper
missibility. Mainstream medical opinion recognizes the necessity for full dis
closure of all alternatives so the patient may give a truly informed consent.
The Current Opinions of the Council on Ethical and Judicial Affairs of the
American Medical Association (AMA) state: “The physician has an ethical
(Footnote continued)
35
It is no answer to the coercive effect of the speech restrictions
of § 59.8 that Title X grantees can speak about abortion through
independently funded affiliates. See 53 Fed. Reg. at 2935; cf. id.
at 2925 (330A). For while it is true that the government may im
pose a wider variety of funding restrictions when the recipient re
mains free to effectuate its free speech rights through an in
dependently funded affiliate, Regan v. Taxation with Representa
tion, 461 U.S. 540, 545 (1983); FCC v. League o f Women Voters,
468 U.S. 364, 400-01 (1984), here, formation of an affiliate does
nothing to protect the precise First Amendment rights at issue By
its very nature, physician-patient communication is an intensely
private affair which requires the exchange of information between
particular individuals at a particular time Permitting the physi
cian on some other occasion to speak freely to some other patient
through an affiliate affords no protection to the Title X patient.34
obligation to help the patient make choices from among the therapeutic alter
natives consistent with good medical practice” Opinion 8.07. Sammons 1 3
(261-62JA); Katz 1 9 (208JA). The Standards of the American College of Obstetri
cians & Gynecologists (ACOG) state that “the physician should counsel the pa
tient about her options of continuing the pregnancy to term and keeping the
infant, continuing the pregnancy to term and offering the infant for legal adop
tion, or aborting the pregnancy.” Morley 1 19 (230JA). In 1982 the President’s
Commission for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research wrote: “[A] physician is obliged to mention all alternative
treatments, including those he or she does not provide or favor, so long as they
are supported by respectable medical opinion.” Katz 1 11 (Exh. B) (209JA). The
requirement that the referral list be undifferentiated also violates well-established
standards of medical ethics. Opinion 1 3.04 states that referrals should be based
on a physician’s judgment that what would be in the best medical interests of
the patient. (284A).
The Secretary claims that a requirement of abortion counseling will conflict
with some health professionals’ ethical beliefs and that there is “no absolute ethical
imperative upon physicians to counsel or refer for abortion” Pr., 53 Fed. Reg.
2932 (327A). In fact, while physicians may have a right not to provide treatment
they find morally objectionable, they do not have a right to withhold informa
tion about treatment from their patients. Sammons 115 (267JA).
14 Even the Title X physician’s First Amendment right to speak through an af
filiate could be chilled by the regulations. Section 59.9, which requires physical
and financial separation of Title X-funded and independently-funded facilities
engaging in abortion related activities, uses the existence of separate personnel
as one of the indicia of separation to be examined by the Secretary. Thus doc
tors, already gagged at Title X clinics, may be understandably reluctant to pro
vide any abortion counseling outside of the Title X setting.
36
Suppression of abortion-related speech also violates the rights
of patients because the First Amendment encompasses the right
to receive information and ideas. Board o f Education v. Pico,
457 U.S. 853, 866 (1982); see also Kleindienst v. M andel, 408 U.S.
753, 763 (1972). It is antithetical to the values underlying the
First Amendment for government to seek to promote its message
by preventing its intended audience from hearing the ‘opposing’
or disfavored idea. This Court rejected just such a “paternalistic”
approach in Virginia State Bd. o f Pharm acy v. Virginia Citizens
Consum er Council, Inc., 425 U.S. 748 (1976), stating that the
“alternative [approach] is to assume that this information is not
in itself harmful, that people will perceive their own best interests
if only they are well enough informed and that the best means
to that end is to open the channels of communication rather than
close them . . . ” Id. at 770.
The pregnant woman’s First Amendment right to receive in
formation about abortion is especially urgent because she is
dependent upon her doctor to give her the information she needs
to make a truly informed choice. Cf. Zauderer v. O ffice o f
Disciplinary Counsel, 471 U.S. 626, 641-42 (1985). Central to the
physician-patient relationship is trust; the woman must be able
to rely upon her doctor’s advice. Katz 11 7, 8 (207JA). Given
the fact that the population served by Title X clinics is dispropor
tionately poor and/or young, the fiduciary duty of the physician
to the patient becomes even more critical. See Gesche 11 6-7
(171JA); Pasternack 1 14(f) (674A); Rust 115 (253-54JA); S. White
1 13 (87a); M. White 1 6 (279-80JA); Murray 1 6 (235JA); Mer-
rens 115 (95a). As the concurring judge in the court of appeals
acknowledged, many women, unaccustomed to regular repro
ductive health care, will be affirmatively misled by the incomplete
counseling into believing they have no alternative to carrying the
pregnancy to term. See 889 F.2d at 415 (Cardamone, J., concur
ring). See also Virginia Bd. o f Pharm acy, 425 U.S. at 763.
The consequences of receiving incomplete or misinformation
are all too real for the pregnant woman. Women with condi
tions such as diabetes, heart disease, cancer, and AIDS, will be
deprived of necessary counseling and information, e.g., that abor
tion is an option which will directly affect their health. Sam
mons 11 8-9 (263-64JA); Rosenfield 11 10-15 (681-84A); Morley
37
1 17 (228-29JA).35 Moreover, certain maternal disorders such as
diabetes or rubella greatly increase the risk of prenatal mortality
and morbidity. Medical ethics dictate that such women should be
given information on the abortion option, given the severe risks
certain diseases pose for the fetus. Sammons 1 10 (264-65JA); Rosen-
field 15 19-20 (686-87A). Even those women who want abortion
and are knowledgeable enough to see past the physician’s silence
could be harmed by the delay incurred in finding a provider, as
it is well established that abortions performed at later stages of
pregnancy are more hazardous. Morley 1 12 (227JA).
There is no doubt that the speech restrictions of § 59.8, if ap
plied to unsubsidized family planning clinics, would constitute an
impermissible infringement of First Amendment freedoms. Yet the
fact that these restrictions on speech occur in the context of a govern
ment funded program does not render them any the less unlawful.
The Secretary’s attempt to structure a funded informed consent
dialogue to exclude all mention of abortion, when the generally
accepted practice would be to include it, goes far beyond a mere
refusal to fund abortion procedures. The suppression of speech here
is designed to steer the woman toward a govemmentally approved
course of action which may be contrary to her best medical in
terests. While a governmental preference for childbirth over abor
tion may be legitimate, promotion of that interest through unin
formed decisionmaking most assuredly is not.36 Thus, Maher v. Roe,
35 The regulation’s exception to the referral ban in cases of “emergency",
§ 59.8(a)(2), is not sufficient to override these serious health concerns. To judge
from the illustration in § 59.8(b)(2), “emergency" is meant to encompass only
those conditions, such as ectopic pregnancies, which constitute an immediate
threat to the woman’s health. Many of the aforementioned diseases do not im
mediately threaten the woman’s life, but are nonetheless serious. See Rosenjield
1 21(a) and (b) (687-88A).
36 Whether the federal government could fund a network of federal clinics, staffed
by federal employees, and require them to mouth the official line on abortion
is not the issue here. Receipt of Tide X funds does not transform the clinics into
instruments of the federal government. Tide X authorizes grants to any “public
or nonprofit private entity" meeting the statutory eligibility requirements, 42 U.S.C.
§ 300(a) and the staff working in the clinics continue to be private, state or county
employees. See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982); Blum v. Yaret-
sky 457 U S. 991, 1006-09 n.19 (1982). See also Federal Energy Regulatory
Comma v. Mississippi, 456 U.S. 742, 777 (1982) (O’Connor, J., concurring in
(Footnote continued)
38
432 U.S. 464 (1977) and Harris v. M cRae, 448 U.S. 297 (1980),
which stand for the proposition that the federal government may
make “a value judgment favoring childbirth over abortion, and
. . . implement that judgment by the allocation of public funds”,
M aher, 432 U.S. at 474, are inapposite.37
In Arkansas W riters’ Project v. Ragland, 481 U.S. 221 (1987),
this Court held that the government could not exempt certain
publications but not others from a sales tax because “official
scrutiny of the content of publications as the basis for imposing
a tax is entirely incompatible with the First Amendment’s
guarantee of freedom of the press.” Id. at 230. The Court so held
despite the fact that the distinction was viewpoint-neutral and
that there was “no evidence of an improper censorial motive.”
Id. at 228. Here, by contrast, the regulations are viewpoint
discriminatory; the Secretary has candidly acknowledged that
their purpose is to suppress speech about abortion. Pr., 53 Fed.
Reg. 2929 (324A).38 For similar reasons in L eagu e o f W omen
Voters, 468 U.S. 364, this Court struck down a ban on editorializ
ing by noncommercial broadcasting stations receiving federal
funds, calling it ‘“the purest example of a “law . . . abridging
the freedom of speech, or of the press,””’ id. at 384 (quoting
C onsolidated Edison Co. v. Public Service C om m ’n, 447 U.S.
530, 546 (1980) (Stevens, J., concurring)). While Congress may
choose to use its spending powers to “subsidize [ ] some, but
not all speech”, Regan, 461 U.S. at 548, it may not “discriminate
the judgment in part and dissenting in part) (states and their agencies do not
become “field offices of the national bureaucracy” by their receipt of federal
monies).
37 Several Justices of this Court recently noted that a serious controversy would
arise if government regulations prohibited publicly employed health profes
sionals from giving specific medical advice to pregnant women. See Webster
v. Reproductive Health Serv., 109 S. Ct. 3040, 3060 (O’Connor, J., concur
ring), 3068-69 n.l (1989) (Blackmun, Brennan and Marshall, J J., concurring
in part and dissenting in part).
38 Even the dissenters in Arkansas Writers conceded that should the govern
ment manipulate subsidies so as to produce a “significant coercive effect . . .
the courts [would] be available to provide relief’ and recommended “a more
stringent, prophylactic ru le .. . when the subsidy pertains to the expression
of a particular viewpoint on a matter of political concern.” Id. at 237 (Scalia,
J., and Behnquist, C.J., dissenting).
39
invidiously in its subsidies in such a way as to “‘ai[m] at the sup
pression of dangerous ideas.’” Id. at 548 (citations omitted). See
also L eagu e o f Women Voters, 468 U.S. at 407 (Rehnquist, J.,
dissenting).39
The consequences for the woman and the physician of restrict
ing speech in an informed consent dialogue are more immediate
and palpable than the consequences of an editorializing ban on
the listening and viewing audience, or of a tax exemption denial
on certain magazine publishers. The women who rely on Title
X-funded clinics for their reproductive health care may have
no alternative facilities.40 Women, including those for whom
abortion is medically indicated, may not know that they have
received incomplete information until it is too late. Some women
who want abortions may be cowed into foregoing their right
to choose abortion because they think the government (or the
physician) disapproves. See Mass. v. S ecy , 899 F.2d at 73.
Since the counseling and referral bans significantly impair First
Amendment rights, they cannot survive scrutiny unless they are
supported by a compelling state interest and are narrowly tailored
39 The principle that government may not allocate its resources in a viewpoint
discriminatory way also applies where the government subsidizes speech by
allowing speakers access to a channel of communication, even when that chan
nel is not a traditional or even limited public forum. Cornelius v. NAACP
Legal Defense and Education Fund, 473 U.S. 788, 806 (1985); id. at 833
(Stevens, J., dissenting); cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983); see also United States v. Kokinda, 58 U.S.L.W. 5013 (June
27, 1990); United States Postal Serv. v. Council of Greenburgh Civic Ass’n,
453 U.S. 114, 131 n.7, 132 (1981). The language of Title X and history of ad
ministrative enforcement make it clear that the federal government, at the
very least, has designated Title X projects nonpublic forums for discussion
of pregnancy options. And while the government may reserve these nonpublic
forums for their “intended purposes, communicative or otherwise, . . . the
regulation on speech [must be] reasonable and not an effort to suppress ex
pression merely because public officials oppose the speaker’s view.” Perry Educ.
Ass’n, 460 U.S. at 46. See also American Council of the Blind v. Boorstin, 644
F. Supp. 811 (D.D.C. 1986).
40 Government speech in the Title X context may distort the marketplace of
ideas because of its dominance in the field. Cf. Webster v. Reproductive Health
Serv., 109 S. Ct. at 3052 n.8 (1989).
40
to serve that interest. See, e.g., Arkansas Writers’, 481 U.S. at 231.
Here, the government’s interest is not merely to encourage
childbirth over abortion, but to suppress information about abor
tion so that uninformed women will carry their pregnancies to
term. Promoting ignorance about the exercise of a constitutional
right is not a legitimate, let alone compelling, governmental in
terest. See Planned Parenthood Ass’n Chicago Area v. Kempiners,
568 F. Supp. 1490, 1499 (N.D. 111. 1983).41
Even if the federal government has articulated a sufficient in
terest for the regulations, they are nonetheless unconstitutional
because they are not narrowly tailored. The ban on abortion in
formation, argues the Secretary, is necessary because any speech
about abortion in a counseling context tends to promote or en
courage abortion. See Pr., 53 Fed. Reg. 2933 (328A). Yet the
evidence shows that Title X grantees engage only in nondirec
tive counseling. See, e.g., Tiezzi 1 8(a) (272-73JA); Merrens f 7
(635-36A); GAO report at 15-16 (112JA). Moreover, the ban on
abortion-related speech and the mandatory pro-childbirth speech
apply in all instances. Since the statutory ban applies only to
“abortion as a method of family planning”, these strictures sweep
too broadly. Speaking about abortion to a woman whose health
would be endangered by pregnancy or who has been the victim
of rape or incest, or who has experienced contraceptive failure,
is in no sense encouraging the use of abortion as a “method of
family planning”.
In sum, no governmental interest can justify regulations de
signed to conceal abortion information from all women, expos
ing women to unnecessary health risks and forcing physicians and
41 Neither can the regulations be justified by the federal government’s interest
in limiting its funding to “preventive” or “preconceptional” family planning.
See § 59.2. First, there is nothing in the statute which supports such a narrow
definition of family planning. In fact, Congress envisioned Title X as an en
try point into the general health care system, see 116 Cong. Rec. 37370 (1970)
(statement of Rep. Bush) (222A), and HHS still encourages Title X clinics to
provide, where possible, medical services designed for general health
maintenance, such as screening for breast cancer and sexually transmitted
diseases. See supra note 3. Second, this purported concern is contradicted by
the mandatory prenatal counseling provision of § 59.8(a)(2) and the man
dated referral to prenatal care providers.
41
other health professionals to violate commonly accepted standards
of medical practice and ethics. “[A]n attempt to persuade by in
flicting harm on the listener is an unacceptable means of convey
ing a message that is otherwise legitimate” Carey v. Population
Serv. Inti, 431 U.S. 678, 715 (1977) (Stevens, J., concurring).
2. Section 59.10 Is A Viewpoint Discriminatory Restric
tion On Speech That Violates The First Amendment
Under § 59.10(a) of the regulations, a project may not use Title
X or its own funds to “encourage, promote, or advocate abortion
as a method of family planning.” (336A). Proscribed activities in
clude lobbying, providing speakers, or using legal action to “en
courage, promote or advocate abortion”; paying dues to any group
that “as a significant part of its activities” advocates abortion as
a method of family planning; or developing and disseminating any
information that advocates abortion as a method of family plan
ning. Id.
Like § 59.8, these proscriptions are directed solely at speech ad
vocating a particular viewpoint; the regulation does not prohibit
Title X projects from engaging in anti-abortion lobbying or speaking
out against abortion in any way. In fact, the Secretary is quite can
did in admitting that § 59.10 “does exhibit a bias in favor of
childbirth and against abortion as a method of family planning.”
See Pr., 53 Fed. Reg. 2943 (338A). As noted above, such viewpoint-
based discrimination is presumptively invalid under the First
Amendment.'*2
Section 59.10 differs from the statute upheld in Regan in at
least two ways. First, § 59.10 is viewpoint-based. Second, this
regulation does not permit Title X grantees simply to establish
affiliate corporate structures that could engage in the prohibited
speech activities. Instead, § 59.9 requires absolute physical separa
tion, and would likely bar any sharing of staff or even name,
although because of the regulation’s vagueness, it is hard to be
sure Section 59.10 is thus not the least restrictive alternative for 41 *
41 The Second Circuit found that § 59.10 does not “in any way suggest that
Title X funds may be used for public anti-abortion advocacy.” New York v.
Sullivan, 889 F.2d at 412-13, a position which the Secretary argued below.
By contrast, the First Circuit found the Secretary’s argument “factually
untenable” Mass. v. Secy, 899 F.2d at 75.
42
ensuring that government funds are not spent on advocacy ac
tivities, as was the statute in Regan, because the government
could accomplish this purpose simply by requiring separate
cost-accounting.
3. Section 59.9 Violates The First A m endm ent By
Burdening Non-Title X Funded Speech
Section 59.9 mandates that Title X projects “physically and
financially separate . . . from activities which are prohibited
under § 1008 of the Act and § 59.8 and § 59.10 of these regula
tions . . . Mere bookkeeping separation of Title X funds from
other monies is not sufficient.” Thus, unless they are prepared
to lose Title X funds, grantees who want to provide abortion
counseling and referral with non-Title X resources have no alter
native but to undergo the substantial reorganization and
duplication of expenditures dictated by the new separation
requirement.
That this requirement would impose formidable financial and
organizational burdens on Title X clinics in New York State is
uncontroverted on the record.43 Title X grants typically com
prise far less than the 90 % of the grantees’ budgets, the limit
allowed by statute. 42 U.S.C. § 300a-4(a)44 As the district court
found, it is not uncommon for Title X projects to share person
nel and physical facilities with abortion clinics. New York v.
Bow en, 690 F. Supp. at 1271. The First Circuit correctly
understood that the costs of hiring extra staff and building
separate rooms, entrances or buildings, all of which the Secretary
has indicated will be taken into account, will impermissibly
43 See, e.g., Pasternack 1 14(g) (674-75A); Bennett 11 23, 30 (501A, 505A);
Fink 1 13(a) (166JA); Gesche 1 18 (175-76JA); Drisgula 1 27 (156JA); Tiezzi
1 8(e) (275JA). The district court, although it upheld § 59.9, quoted exten
sively from the providers’ affidavits on this point, conceding that it “goes much
further than prior HHS policy and imposes significant changes on Title X pro
jects.” New York v. Bowen, 690 F. Supp. at 1271.
44 None of the plaintiff organizations in this case funds its entire family-planning
budget through Title X. For example, the district court found that the Bronx
Center, a facility of plaintiff Planned Parenthood of New York City, receives
a $439,391 Title X grant, amounting to 50 % of its family planning budget.
New York v. Bowen, 690 F. Supp. at 1263.
43
burden the grantees’ non-Title X funded speech activities. Mass,
v. S ecy , 899 F.2d at 74.45
Moreover, the record below substantiates the claims by Tide
X providers that § 59.9 will generate conflicts between its re
quirements and those imposed by other public funders. All Tide
X grantees in New York, for example, also receive family plan
ning grants from the State.46 Under New York law, the NYSDOH
is obligated to carry out the State’s policy that “medical service”
of the highest quality, efficiendy provided and properly utilized
at a reasonable cost, are of vital concern to the public health.”
N.Y.S. Pub. Health Law § 2800 (McKinney 1985). Full informed
consent is an essential element of high quality medical care under
state law, as reflected in state codes of professional conduct, N.Y.S.
Educ. Law §§ 6506-6509 (McKinnev 1985), N.Y. Comp. Codes
R. & Regs. tit. 8 (NYCRR) § 29.2 (1989), NYSDOH regulations
covering family planning clinics, 10 NYCRR § 753.1, and stand
ards relating to medical malpractice. N.Y.S. Pub. Health Law §
2805-d(l) (McKinney 1985); see, e.g ., Becker v. Schwartz, 46
N.Y.2d 401, 413 N.Y.S.2d 895, 336 N.E.2d 807 (1978).
New York’s policy favoring full informed consent serves urgent
public health needs in the State For instance, the NYSDOH has
notified state-subsidized family planning providers that in view
of the AIDS crisis, they must offer HIV testing to all clients,
Gesche 1 17 (175JA), with appropriate options counseling for
those found infected. Id. Because such counseling would be speech
prohibited under § 59.8, § 59.9 requires the separation of state
supported programs from Title X programs, resulting in a drain
on the grantees’ resources and increased administrative burdens.47
48 The Second Circuit, by contrast, brushed aside these concerns, noting only
that §59.9 does not permit the Secretary to deny funding to grantees because
they engage in abortion-related activities outside their employment in the Title
X program. New York v. Sullivan, 889 F.2d at 413.
46 In fact, state funding has superceded Title X as the major source of family
planning assistance Gesche 11 10-11 (172-73JA). The $5,817,471 awarded to
NYSDOH for 1989-90 represents 24.8 percent of the total program funding
of $23,489,837. Randolph 1 6 (243JA).
47 Similarly, many Title X grantees also receive funds under the Maternal and
Child Health Services Block Grant, Title V of the Social Security Act, 42 U.S.C.
(Footnote continued)
44
The Secretary’s response to these concerns is clearly inadequate.
“[CJurrent program policy allows grant funds to be used for the
one-time costs associated with relocating a Title X clinic for the
express purpose of complying with the . . . rules.” Pr., 53 Fed. Reg.
2941 (336A). Yet common sense dictates that the costs occasioned
by the separation requirement will be ongoing because of items
such as additional salaries, insurance payments, utility bills, and
rental or mortgage payments.
Although the government may require some amount of separa
tion as a condition of funding, this Court has carefully described
the limits within which such burdens can occur. In Regan, for ex
ample, the Court upheld a requirement of separation solely because
“[t]he IRS apparently requires only that the two groups [the non
profit organization and its lobbying affiliate] be separately incor
porated and keep records adequate to show that tax-deductible con
tributions are not used to pay for lobbying.” 461 U.S. at 544 n.6.
Moreover, while TWR would have to establish a separate corpora
tion for lobbying, it would be able wholly to control its affiliate
and thus be able to speak freely through it. Id. at 553 (Blackmun,
J., concurring).
Here, § 59.9 lacks both saving qualities of the IRS rule First,
§ 59.9 requires physical as well as financial separation, and allows
the Secretary to take into account various factors in determining
grantees’ compliance, such as the existence of separate facilities and
personnel.48 The burdens occasioned by this requirement are much
§701 (1982). Women seeking services under this program receive complete op
tions counseling if fetal abnormalities are detected by amniocentesis or other
genetic testing. Thus, §59.9 requires the separation of Title V programs from
Title X programs. Gesche 11 12, 22 (173, 177JA); Bennett 1 23 (501-02A); Fink
1 13(c) (166-67JA).
48 The Secretary may not evade the burdensome nature of § 59.9 by claiming,
as he did below, that the implementation of the requirement would be on a case-
by-case approach in which no one factor would be necessarily determinative.
Grantees should not be forced to guess how much compliance is enough. Uncer
tainty about how the separation requirement will be implemented is itself a burden
on the operation of Title X clinics. Bennett 1 23 (501-02A); Rust 11 9 (257JA).
Thus, the separation requirement, as well as the counseling, referral and ad
vocacy ban are unconstitutionally vague Courts must apply a strict vagueness
(Footnote continued)
45
greater than those which have been stricken by this Court. For ex
ample, in FEC v. Massachusetts Citizens fo r Life, Inc., 479 U.S.
238 (1986), this Court struck down a ban on corporate election ex
penditures as applied to a non-profit, “pro-life” organization on the
ground that a requirement “to speak through a segregated fund”
may necessitate such “significant efforts” as to inhibit free speech.
Id. at 252 (plurality opinion). Cf. Austin v. Michigan Cham ber
o f Commerce, 110 S. Ct. 1391, 1406 n.7 (1990) (Brennan, J., con
curring) (restriction on corporate campaign expenditure permissi
ble because requirement that funds be segregated left open “avenues
of communication” and did not “burden[] significantly” corpora
tion’s ability to speak); id. at 1423 (Kennedy, J., dissenting) (abili
ty of corporation to speak through political action committee is
“far from a saving feature” because avenue left open is “more
burdensome”).
Section 59.9 also fails the second part of the Regan test: Title
X grantees will not be able to speak freely about abortion through
their affiliated facilities. Until now, many Title X grantees have
been able to refer women who wanted abortions to their co-sited
abortion facilities. Because § 59.8 forbids referrals for abortion, and
mandates exclusion from the referral list of all providers “whose
principal business is the provision of abortions” health care pro
fessionals in Title X facilities will not be able to refer patients to
their sister organizations for abortion counseling or procedures.
Thus, the First Amendment rights of health care professionals in
Title X programs to speak freely about abortion in non-Title X set
tings will be seriously impaired.'" *
standard, where, as here, government regulation interferes with fundamental
speech rights. Village of Hoffman Estates u. The Flipside, 455 U.S. 489, 498-99
(1982); NAACP v. Button, 371 U.S. 415, 432 (1963). A Title X project cannot
know what is required or prohibited by the physical separation requirement or,
for that matter, by the prohibitions against “encouraging”, “counseling” or “pro
moting” “abortion as a method of family planning” in §§ 59.8 and 59.10.
■"The Secretary has made no showing that physical separation is even necessary
to prevent federal funding of speech about abortion. See generally Massachusetts
v. Bowen, 679 F. Supp. 137, 142 (D. Mass. 1988) (summarizing evidence show
ing no need for physical separation); see also New York v. Sullivan, 889 F.2d
at 418 (Kearse, J., dissenting).
46
It is clear that the government may not condition benefits or
subsidies on the relinquishment of constitutional rights exercised
independent of government support." “[Ejven though the govern
ment may deny [a] . . . 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
constitutionally protected interests — especially, his interest in
freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597
(1972). See also Speiser v. Randall, 357 U.S. 513, 518-19 (1958);
Sherbert v. Verner, 374 U.S. 398, 404-06 (1963); H obbie v.
Unemployment Appeals C om m ’n o f F la., 480 U.S. 136, 139-41
(1987).50 51
The government may not mete out favors in a way that pro
hibits or unduly burdens the exercise of constitutional rights on
non-federal time or with non-federal funds; this includes the con
stitutional right to speak about abortion. The regulations thus
violate the First Amendment by confronting family planning
organizations with two alternatives, each of which punishes pro
tected, non-Title X funded expression.
50 The new regulations penalize independently-funded speech activities in yet
another way. Section 59.2 defines “Title X project funds” as “all funds allocated
to the Title X program, including, but not limited to grant funds, grant-related
income or matching funds.” Title X projects have always been required to sup
plement federal grants with 10% matching funds. Most Title X programs also
charge fees on a sliding scale for those clients who have the means to pay,
a portion that would be designated “grant-related income”. Therefore, in
restricting the use of “Title X project funds,” the regulations significantly limit
the projects’ use of nonfederal money. See Pr., 53 Fed. Reg. 2922 (317A).
51 Statutes prohibiting the distribution of state funds to programs that pro
vide abortion counseling, even with private funds, consistently have been held
to condition benefits impermissibly on the relinquishment of constitutional
rights. See Planned Parenthood of Cent. <Lr No. Arizona v. Arizona, 718 F.2d
938 (9th Cir. 1983), appeal after remand, 789 F.2d 1348 (9th Cir. 1986), aff’d
sub nom. Babbitt v. Planned Parenthood, 479 U.S. 925 (1986); Planned Parent
hood Ass’n v. Kempiners, 531 F. Supp. 320 (N.D. 111. 1981), vacated and
remanded on other grounds, 700 F.2d 1115 (7th Cir. 1983), on remand, 568
F. Supp. 1490 (N.D. 111. 1983); Valley Family Planning u. North Dakota, 489
F. Supp. 238 (D.N.D. 1980), aff'd on other grounds, 661 F.2d 99 (8th Cir. 1981).
47
B. Section 59.8 Violates The Woman’s Constitutional
Privacy Right To Decide Whether To Continue Her
Pregnancy
This Court has recognized that “the right of privacy, grounded
in the concept of personal liberty guaranteed by the Constitu
tion, encompasses a woman’s right to decide whether to ter
minate her pregnancy.” Akron, 462 U.S. at 419 (citing R oe v.
Wade, 410 U.S. 113 (1973)). Therefore, “a pregnant woman must
be permitted, in consultation with her physician, to decide to
have an abortion and to effectuate that decision ‘free of in
terference by the State.’” Id. at 429-30 (quoting Roe, 410 U.S.
at 163). Because the right is at its core a decisional righ tS2 53, the
woman cannot effectively exercise it unless the physician has
fully informed her of all of her options. Thus, governmental ef
forts to invade the physician-patient relationship and to pollute
the decisional process with extraneous ideological considerations
have been consistently turned aside by this Court. Akron, 462
U.S. at 445. See also Thornburgh, 476 U.S. at 762.
The court of appeals, citing M aher, 432 U.S. 464, M cRae, 448
U.S. 297, and Webster, 109 S. Ct. 3040, erroneously upheld the
regulations as a permissible condition on funding that did not
as a matter of law burden the privacy right. 889 F.2d at 410-12.
But here, unlike in M cRae and M aher, the unrebutted evidence
demonstrates that it is the regulations, and not the patients’ in
digency, that will harm Title X program clients.*3 Regardless
52 See Whalen o. Roe, 429 U.S. 589, 599-600 (1977) (the right of personal privacy
includes an “interest in independence in making certain kinds of important
decisions”).
53 The Second Circuit majority conceded that the regulations “may hamper
or impede women in exercising their right of privacy in seeking abortions,”
889 F.2d at 411, but held that this fact was “constitutionally irrelevant”. Id.
The majority erred in so holding, however, since this Court has always ex
amined conditions on funding for their actual effect on protected rights. See,
e.g., Lyng v. Inti Union, United Auto. Workers, 485 U.S. 360 (1988) (upholding
constitutionality of federal statute disqualifying households of striking workers
from eligibility for food stamps, finding it “exceedingly unlikely” that it would
actually affect associational rights). Unlike the Second Circuit, the First Cir
cuit examined the actual effects of the regulations on the privacy right. Mass,
v. Secy, 899 F.2d at 69-70.
48
of the resources or other sources of information available to these
women,54 they have come to rely upon Title X health clinics
dispensing low-cost, high quality health care, and may not seek
counseling and referral elsewhere. Instead of receiving those ser
vices they have come to rely upon, they will be given misleading
referrals, e.g ., Sammons H 13 (266-67JA); Fink 5 12(f), (g)
(165JA); Joseph H 9 (203-04JA); they will be confronted with
health professionals required to be unresponsive to the fact of
unwanted pregnancy, Rust H 20 (257-58JA); Sammons H 4
(262JA); and they will be delayed if not deterred from obtain
ing an abortion, Henshaw 12, 15, 21 (192, 193, 195-96JA);
Bennett H1 19, 20 (500A); Klepper 1 20; Rust HI 10, 13
(252-53JA ); Morley 1 12-14 (227-28JA ); Drisgula H 22
(154-55JA); Potteiger H 17 (91a). In addition, the mandatory
speech promoting childbirth can cause emotional distress to the
woman and irreparably damage the physician-patient relation
ship.55 These burdens will render many women who seek care
at a Title X clinic worse off than had they never consulted a
Title X provider. E.g., Katz H 18 (211-12JA).
For these reasons, the regulations directly contravene the right
announced in R oe and reaffirmed in Akron and Thornburgh:
54 Most Title X patients do not have the resources to “shop around” for alter
native counseling, but a minority does. While priority is given to low-income
women (100% of the federal poverty line), 42 C.F.R. §§ 59.2; 59.5(a)(6)(7),
the regulations also require grantees to provide services to women with in
comes up to 250 % of the federal poverty line on a sliding scale based on ability
to pay. 42 C.F.R. § 59.5(a)(8) (12-13A). Above this level Title X grantees pro
vide services for “reasonable cost.” Id. Thus, some patients who can pay will
be affected by the new regulations where their ability “to go elsewhere [may
be] significantly diminished because [they have] already paid what [they] could
afford to the Title X clinic”, as the First Circuit noted. 899 F.2d at 70. The
Second Circuit erred in assuming that this point had not been raised by plain
tiffs. 889 F.2d at 413-14.
55 Instructions to the pregnant woman about how to promote the welfare of
her “unborn child” would be inappropriate in cases where the woman is preg
nant by rape or incest, or where she has already indicated a strong desire not
to continue the pregnancy. In those circumstances, such speech from a physi
cian might seem to the woman irrelevant at best, and insensitive or arrogant
at worst, thereby irreparably damaging the counseling relationship. See Katz
11 6-7 (207JA).
49
the right to be free from unwarranted state interference in the
process of deciding whether or not to bear a child. The regula
tions place “unreasonable] . . . ‘obstacles in the path of the doc
tor upon whom [the woman is] entitled to rely for advice in
connection with her decision.’ ” Akron, 462 U.S. at 445 (quoting
W halen v. Roe, 429 U.S. 589, 604 n.33 (1977)). Such obstacles
violate the right to privacy because “full vindication of the
woman’s fundamental right necessarily requires that her physi
cian be given ‘the room he needs to make his best medical judg
ment.’ ” Akron, 462 U.S. at 427 (quoting D oe v. Bolton, 410 U.S.
179, 192 (1973)).
50
CONCLUSION
For the above reasons, the decision of the Court of Appeals
for the Second Circuit should be reversed.
VICTOR A. KOVNER
Corporation Counsel
f o r the City o f N ew York
100 Church Street
New York, New York 10007
(212) 374-3171
LEONARD J. KOERNER
LORNA BADE GOODMAN
GAIL RUBIN
HILLARY WEISMAN
Assistant C orporation
Counsels
Attorneys fo r Petitioners
The City o f New York
and The New York City
H ealth and H ospitals
Corporation
Respectfully submitted,
ROBERT ABRAMS
Attorney G eneral o f the
State o f New York
120 Broadway
New York, New York 10271
(212) 341-2250
O. PETER SHERWOOD
Solicitor G eneral
SUZANNE M. LYNN
Assistant Attorney G eneral
Chief, Civil Rights Bureau
(Counsel of Record)
DONNA I. DENNIS
CYNTHIA F. KREUSI
SANFORD M. COHEN
Assistant Attorneys General
Attorneys fo r Petitioner
The State o f New York
COUNSEL PRESS
11 EAST 36TH STREET, NEW YORK, NEW YORK 10016
(212) 685-9800; (516) 222-1021; (914) 682-0992; (201) 494-3366
(115711)