Natl Fam Plng Hlth v. Gonzales, Alberto

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2006 Decided November 14, 2006

No. 05-5406

NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH

ASSOCIATION, INC.,

APPELLANT

V.

ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED

STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv02148)

James L. Feldesman argued the cause for appellant. With

him on the briefs were Kathy S. Ghiladi and Robert A.

Graham.

August E. Flentje, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Peter D. Keisler, Assistant Attorney General, Kenneth L.

Wainstein, U.S. Attorney, and Robert M. Loeb, Attorney.

2

Stephen H. Aden argued the cause for appellees Christian

Medical Association and American Association of Pro-Life

Obstetricians and Gynecologists. With him on the brief was

Benjamin W. Bull.

Jay Alan Sekulow, Colby M. May and James M.

Henderson, Sr. were on the brief for amici curiae for U.S.

Representative Henry J. Hyde, et al. in support of appellees.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: At the end of 2004

Congress adopted a provision commonly known as the

Weldon Amendment (named after Representative David

Weldon), prohibiting recipients of federal grant funds from

discriminating against individuals or entities that refuse to

provide or refer for abortions. Consolidated Appropriations

Act, 2005, Pub. L. No. 108-447, § 508(d), 118 Stat. 2809,

3163. It reenacted the same provision the next December.

Departments of Labor, Health and Human Services, and

Education, and Related Agencies Appropriations Act, 2006,

Pub. L. No. 109-149, § 508(d), 119 Stat. 2833, 2879–80.

Five days after the initial enactment, the National Family

Planning and Reproductive Health Association filed suit in

district court. Its substantive claims—at least the ones making

it to the appeal—are that the amendment’s alleged vagueness

violates the First Amendment, for which it cites Rust v.

Sullivan, 500 U.S. 173 (1991), and the limits of Congress’s

spending power, for which it cites Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 17 (1981) (holding that a

statute exercising Congress’s spending power imposes legally

binding conditions on a recipient state only if it expresses the

3

binding character unambiguously). The district court found

standing but on the merits denied the requested injunction and

granted summary judgment for the government. We find no

standing.

* * *

Under Title X of the Public Health Service Act, 42 U.S.C.

§ 300, the Secretary of Health and Human Services “is

authorized to make grants to and enter into contracts with

public or nonprofit private entities to assist in the

establishment and operation of voluntary family planning

projects . . . .” Most Title X funds flow initially to state and

local governmental agencies and non-profit organizations.

These grantees function as intermediaries that in turn

distribute the funds to subgrantees who actually administer the

programs. The plaintiff association is an organization

comprised largely of Title X grantees and subgrantees,

including state and local agencies, nonprofit organizations,

clinics, and individuals employed by such entities.

The association’s vagueness theory rests in large part on

an alleged conflict between the Weldon Amendment and a

Health and Human Services (“HHS”) regulation governing

Title X funds. The regulation, most recently amended in

2000, requires all recipients of Title X funds to “offer

pregnant women the opportunity to be provided information

and counseling regarding . . . pregnancy termination.” 65 Fed.

Reg. 41,270, 41,279/1 (July 3, 2000). Neither party disputes

that the regulation was an appropriate exercise of the

Secretary’s rulemaking authority (though the government

notes, and plaintiff doesn’t contest, that in the event of

conflict the regulation must yield to a valid statute). The

Weldon Amendment, on the other hand, protects institutional

4

and individual providers that wish not to provide or refer for

abortions:

(1) None of the funds made available in this Act may be

made available to a Federal agency or program, or to a

State or local government, if such agency, program, or

government subjects any institutional or individual health

care entity to discrimination on the basis that the health

care entity does not provide, pay for, provide coverage of,

or refer for abortions.

(2) In this subsection, the term “health care entity”

includes an individual physician or other health care

professional, a hospital, a provider-sponsored

organization, a health maintenance organization, a health

insurance plan, or any other kind of health care facility,

organization, or plan.

Consolidated Appropriations Act, 2005, § 508(d).

The complaint asserts that the association’s members do

not know how to abide by the 2000 HHS regulation as well as

the Weldon Amendment and are therefore in jeopardy of

losing federal grants. Arguing that its members face

pervasive uncertainty as to their obligations under the two

provisions, it seeks declaratory relief and a preliminary

injunction against enforcement of the amendment.

* * *

Constitutional standing requires that a plaintiff show

“injury in fact,” which the Supreme Court has defined as “an

invasion of a legally protected interest which is (a) concrete

and particularized and (b) actual or imminent, not conjectural

or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (citations and internal quotations omitted).

5

An actual withdrawal of funding from the association’s

members would clearly qualify, but the association doesn’t

suggest that any such withdrawal has occurred.

The association does say, however, that its members face

an imminent threat of injury, including loss of funding,

because of the alleged conflict between the regulation and the

amendment. They claim to be in a Catch-22: If they obey the

amendment, they’ll violate the regulation, and vice versa.

Either way, they say, they are bound to violate one of the

conditions of their funding. Although of course a valid statute

always prevails over a conflicting regulation, the alleged

vagueness of the statute leaves the association uncertain

whether the amendment or the regulation will govern a variety

of situations. Compare Abbott Laboratories v. Gardner, 387

U.S. 136, 153–54 (1967), where the plaintiff firms faced the

hardship of choosing (without authoritative guidance)

between compliance with a possibly unlawful regulation at

considerable expense, and non-compliance, at the risk of

being subjected to after-the-fact enforcement that would entail

fines and reputational losses. But even if the same standard

applied to challenges to a statute as to a regulation, cf. Seegars

v. Gonzales, 396 F.3d 1248, 1254 (D.C. Cir. 2005) (noting a

possible distinction), the association falls far short of showing

the necessary likelihood of any injury.

We start by noting a background point—the association’s

complete failure to show that HHS’s enforcement mechanism

is one that would really burden a grantee that guessed wrong.

There is no suggestion in its papers that good-faith conduct

violating a grant condition would trigger an immediate

funding cut-off, much less the sort of retroactive penalty that

was involved in Abbott Labs.

Turning to the interaction of the substantive provisions

themselves, we must look separately at the Weldon

6

Amendment’s conditions on Title X grantees with respect to

individuals who refuse to refer for or provide abortions, and

organizations so refusing. We start with grantees’ obligations

to individuals.

The association asserts that if an individual caregiver

objects to providing abortion counseling to a pregnant woman

but wants to retain a pregnancy counseling job, reassigning

that caregiver to another job might amount to “discrimination”

banned by the amendment. But Congress enacted a provision

in 1974 similarly protecting exercises of individual rights of

conscience, saying that no individual could be compelled to

perform a service, in conjunction with an HHS program, that

“would be contrary to his religious beliefs or moral

convictions.” National Research Act, Pub. L. No. 93-348,

§ 214, 88 Stat. 342, 353 (codified at 42 U.S.C. § 300a-7(d)).

Despite the apparently similar potential for conflict

between the pre-Weldon conscience provisions and the

current Title X regulation (dating from 2000), they have

enjoyed a quite peaceful co-existence. Plaintiff doesn’t point

to a single instance in which the government has treated the

reassignment of a caregiver who refuses to provide abortion

counseling as “discrimination” against that caregiver, or in

which it has questioned a member’s funding because of the

way the member navigated between the regulations and the

conscience provisions. The association’s anomalous equation

of reassignment with discrimination is particularly suspect

because Congress, since 1996, has forbidden “discrimination”

against an individual who “refuses . . . to perform . . .

abortions, or to provide referrals for . . . abortions.” Omnibus

Consolidated Rescissions and Appropriations Act of 1996,

Pub. L. No. 104-134, § 515, 110 Stat. 1321, 1321-245

(codified at 42 U.S.C. § 238n(a)(1), (c)(2)). But the 1996

provision hasn’t given rise to the parade of horribles that

plaintiff hypothesizes—not even to a single horrible.

7

To support its notion that the Weldon Amendment’s

protection of individual caregivers may impose different

requirements on Title X grantees than do the earlier

conscience provisions, plaintiff points to the absence of any

reference to “conscience” in the amendment. This is a red

herring. Let us assume that under the amendment individual

caregivers may lawfully refuse to participate in abortion

provision or referral, without any adverse employment

consequences, on broader grounds than formerly—conscience

and, to state it as broadly as possible, “any other grounds.”

We cannot see how a broadening of the grounds for resisting

abortion activity would suddenly transform an

accommodating agency’s reassignment into an act of

discrimination. Plaintiff offers us no help on this.

Plaintiff has thus failed to identify any reason why the

concept of discrimination forbidden by the earlier conscience

provisions and the amendment at all hinges on the scope of

those various provisions. Furthermore, plaintiff does not

point to any desired change in its members’ conduct that

would create some new risk for their funding. Accordingly,

the association has shown no material change since 2000 in

terms of members’ obligations to respect individual views on

abortion, and the risk that its members will face the claimed

dilemma appears to be nil. See American Library Ass’n v.

Barr, 956 F.2d 1178, 1188 (D.C. Cir. 1992).

As to members’ duties to “health care entit[ies]” that are

not individuals, the association alleges that the HHS

regulation requires that recipients distribute funds only to

subgrantees that agree to provide abortion counseling,

whereas the Weldon Amendment, for the first time (with

narrow exceptions), forbids discrimination against potential

subgrantees (i.e., not individuals) that refuse to refer for

abortions. Because the Weldon Amendment appears to

extend pre-existing conscience rights to hitherto uncovered

8

entities, we do not have the benefit, in this context, of a six-

year track record. Nonetheless, we think that here too

plaintiff has failed to show the imminence of any serious

dilemma.

First, the association has about 4000 members, yet in the

period between enactment and the district court’s September

28, 2005 denial of a preliminary injunction plaintiff offered no

suggestion that any member encountered the slightest hint

from HHS that its practices might imperil its funding under

Weldon. Moreover, there are structural reasons to doubt that

the issue will ever come up. In 2000 HHS Secretary Shalala

declined to create a specific exception from the pending

regulation’s mandatory referral requirement for organizations

resisting provision of abortion counseling or referrals; she

explained that she was “unaware of any current grantees that

object to the requirement for nondirective options counseling,

so this suggestion appears to be based on more of a

hypothetical than an actual concern.” 65 Fed. Reg. at

41,273/3 (emphasis added). Nowhere in its papers has

plaintiff claimed that such grantees in fact existed. “Litigants

are . . . not entitled to an adjudication of every question they

perceive after reading through the text of legislation.”

American Library Ass’n, 956 F.2d at 1197.

The supposed dilemma is particularly chimerical here

because the association’s asserted injury appears to be largely

of its own making. We have consistently held that self-

inflicted harm doesn’t satisfy the basic requirements for

standing. Such harm does not amount to an “injury”

cognizable under Article III. National Treasury Employees

Union v. United States, 101 F.3d 1423, 1429 (D.C. Cir. 1996);

Fair Employment Council of Greater Washington, Inc. v.

BMC Marketing Corp., 28 F.3d 1268, 1276–77 (D.C. Cir.

1994). Furthermore, even if self-inflicted harm qualified as an

injury it would not be fairly traceable to the defendant’s

9

challenged conduct. Brotherhood of Locomotive Engineers

and Trainmen v. Surface Transportation Board, 457 F.3d 24,

28 (D.C. Cir. 2006); Petro-Chem Processing, Inc. v. EPA, 866

F.2d 433, 438 (D.C. Cir. 1989). Here the association has

within its grasp an easy means for alleviating the alleged

uncertainty. It could inquire of HHS exactly how the agency

proposes to resolve any of the conflicts that it claims to spot

between the amendment and the regulations. Under the

Administrative Procedure Act, the association has the right to

petition HHS to adopt a rule clarifying the responsibilities of

Title X grantees. 5 U.S.C. § 553(e). It has never done so.

Plaintiff’s briefs constantly lament that the government has

failed to answer its hypotheticals, see, e.g., Plaintiff’s Br. at

13–17, but the association refers only to questions posed to

the government’s litigation counsel. Failure to seek

clarification from the agency is especially troubling here

because HHS is entitled to deference in interpreting its own

regulation and (under many circumstances) the statutes that it

administers. National Mining Ass’n v. Babbitt, 172 F.3d 906,

911 (D.C. Cir. 1999); Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). As the

association has chosen to remain in the lurch, it cannot

demonstrate an injury sufficient to confer standing.

* * *

As plaintiff lacks standing to challenge the Weldon

Amendment, the judgment below is vacated and the case

remanded to the district court to dismiss for lack of

jurisdiction.

So ordered.