Petition — Civic Awareness of America, Ltd. v. Mathews

No. @5-1774

In the | * 976

Supreme Cot of the United States

Ocroser Term, 1975

CIVIC AWARENESS OF AMERICA, LTD., a non-profit

Wisconsin Corp., ROSE EMMONS and JOANNE KUFFEL,

Petitioners,

vs.

SECRETARY OF H.E.W., DONALD 8S. BUZARD, President of

Planned Parenthood Association of Milwaukee, PLANNED

PARENTHOOD ASSOCIATION OF MILWAUKEE and

PLANNED PARENTHOOD-WORLD POPULATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TC THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

GEORGE P. KERSL EN

231 N. Wisconsin Avenue

Milwauhes, Wisconsin 53203

CHARLES B. CANNON

135 S. LaSalle Street

Chicago, [llinois 60603

Attorneys for Petitioners

Of Counsel:

ROMAN H. PAPKA and

KERSTEN & MC KINNON

231 W. Wisconsin Avenue

Milwaukee, Wisconsin 53203

June 3, 1976

AL AEE TT EASES, ~AIES ORI eC RS E

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

TABLE OF CONTENTS

PAGE

TT TE REE ae Tot 2

SN SET NL IMME MET et 2

III aicnccinisiaiesntcnsainicicmeuidmeidedibel emacs. 2

Statutory Provisions Involved 20................ccssscsesessssssceeeees 4

eS TET TR GI hiecetsntinciss<cctesseisihcceitdinpinnctipinncilitailiae 4

A. Nature of the case, course of proceedings and

I III ciiictescnsshuncticscieinbiiacsiameamannas 4

eR IID shuticieiedinchcestniniableencsaasicdeneisniatiateainniiaialtesit 5)

Reasons for Granting the Writ ................. hoesianiataseabei 8

I. This court must resolve the important question

whether federal financing of abortion, artificial

contraception, vasectomies, sterilization and

cloning constitutes a violation of the Free Ex-

ercise and Establishment clauses of the First

SE seieinnssismnientitianiatnieididiacnia etidamaiiias 8

A. The public importance of these questions .... 8

B. What would the result in Tilton v. Richard-

son, 403 U.S. 672 (1971), have been if the

funds involved had heen granted for mar-

Flage guidance COUPSES ................-0eceeceeseeeees 11

II. The holdings of the lower courts concerning

plaintiffs’ standing to challenge the legislative

enactments as federal taxpayers or under the

Administrative Procedure Act refuse to con-

sider the extraordinary sensitive, moral and re-

ligious activities complained of _....00...2.20.22..2... 14

Bi, FRG GED | ccecccicnientintcnteniinins 14

li

PAGE

B. Standing under the Administrative Pro-

IE IIIT stcseatnietppeniasianinuitatnsbe ands acces 15

REESE Nn Noe Se Ae RCE ee Oe Ee 16

TTI ia icus con cisdlcidedisstlacelelialioieditndicianabacinnt canciadideniiiieg’ App. 1-27

Statutory Provisions Involved 20.20... App. 1

Opinion and Order of Court of Appeals. .......... App. 10

Decision and Order of District Court Dismiss-

I kala aaa App. 14

Decision and Order of District Court Denying

Motion to Convene a Three-Judge Court .......... App. 22

TABLE OF CITATIONS

Cases

Barlow v. Collins, 397 U.S. 159 (1970) oe. 16

Butchers Union yv. Cream City, 111 U.S. 746 (1884) ... = 9

Civic Awareness of America, Ltd., et ai. v. Elliot L.

Richardson, et al., 343 F.Supp. 13858 (1972) ........ 2,4

Civic Awareness of America, Ltd., et al. v. Elliot L.

Richardson, et al., 387 F.Supp. 1086 (1975) 00.02... 2,9

Data Processing Services vy. Camp, 397 U.S. 150 (1970) 16

Engle v. Vitale, 370 U.S. 421 (1962) 000. 11

Flast v. Cohen, 392 U.S. 83 (1968) ....... SESS nce 14

Frothingham vy. Mellon, 262 U.S. 477 (1923)... 14

Griswold v. Connecticut, 381 U.S. 479 (1965) .......... 8, 9, 12

Joint Anti-Fascist Refugee Committee v. McGrath, 341

A PIIIIIENIEED .:cdliisicsaniesincetapinamnintehithisapecsieinisebaueinecees 16

Lemon v. Kurtzman, 43 U.S. 602 (1971) 200... 10, 14

National Assn. for the Advancement of Colored People

v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) .... 16

PAGE

Roe v. Wade, 410 U.S. 113 (1973) 02.022... eeeeeeeeceeeeees 8,9

Schneider v. Rusk, 372 U.S. 224 (1963) 20.0.2... 16

School Dist. of Abington Twt. v. Schempp, 374 U.S. 203

(19GB) nneaenencereonvennses--sennvorvevene- -sossnsrnossenssensersssencenssceosensecs 10

Sierra Club v. Morton, 504 U.S. 727 (1972) .........2...... 16

Tilton v. Richardson, 403 U.S. 672 (1971) ~........0.22..... 2,11

Toreaso v. Watkins, 367 U.S. 48 (1961) -.....002200000..... 13

Walz v. Tax Commission, 397 U.S. 664 (1970) . ........ 13

Welsh v. United States, 398 U.S. 333 (1970) -.............. 13

Zorach v. Clausan, 343 U.S. 306 (1952) -..00 10

Statutes

PT TR witiccercenstersecnnnrenicctennmmnnsintennteienineaiionins 4

Uw Te TG DFE: | scaaeeaate Stile 2

nee App. 1

Be its Ses TIT ceiseeccescassnccinistcninviciedisnipeinitionseiesniiemapscsnnes App. 1

IE IED sinninsinspninicassnsonvetieniantecnianiteitentioneintinsiianiginieeiiell 3, 4, 6

GD TF, FED cenrernccensseterrcetintneniienenmmeentianiernmmmnnnimamoees 3, 4

Other Authorities

American Declaration of Independence _ ........................ 9, 10

First Amendment to the United States Constitution .... 3, 4,

8, 9, 12, 14

Fifth Amendment to the United States Constitution .... 15

In the

Supreme Court of the United Siates

Ocroser Term, 1975

No.

CIVIC AWARENESS OF AMERICA, LTD., a non-profit

Wisconsin Corp., ROSE EMMONS and JOANNE KUFFEL,

Petitioners,

vs.

SECRETARY OF H.E.W., DONALD 8S. BUZARD, President of

Planned Parenthood Association of Milwaukee, PLANNED

PARENTHOOD ASSOCIATION OF MILWAUKEE and

PLANNED PARENTHOOD-WORLD POPULATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Civic Awareness of America, Ltd., Rose

Emmons and Joanne Kuffel respectfully pray that a writ

of certiorari be issued to review the judgment and opinion

of the United States Court of Appeals for the Seventh

Cireuit entered in this action March 9, 1976.

2

OPINIONS BELOW

The unpublished per curiam order of the Court of Ap-

peals appears in the appendix hereto at page App. 10. The

opinions of the District Court, reported at 343 F.Supp.

1358 (1972) and 387 F.Supp. 1086 (1975), appear in the

appendix hereto at pages App. 22 and App. 14.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered March 9, 1976. This petition for cer-

tiorari was filed within 90 days of that date. This court

has jurisdiction under 28 U.S.C. See. 1254(1).

QUESTIONS PRESENTED

The questions presented in this case are:

1.

Can Congress force a person, through taxation,

to engage in the promotion and practice of a pat-

tern of sexual behavior contrary to that person’s

religious beliefs?

What would the result in Tilton v. Richardson

(1971), 403 U.S. 672, have been if the federal

funds had been granted for marriage guidance

courses?

Do government promotion and proselytizing of

a particular, innovative pattern of sexual behavior

constitute government activity in the moral and

religious sphere?

Does plaintiffs’ amended complaint seeking declar -

atory and injunctive relief to prevent grants

3

under the Social Security Act,’ and the Family

Planning Services and Population Research Act

of 1970? for abortions, artificial contraception and

similar activities on the grounds such expendi-

tures violate the Free Exercise and Establishment

clauses of the First Amendment, present substan-

tial constitutional issues so as to justify conven-

ing a three-judge court?

Do expenditures under the Family Planning Ser-

vices and Population Research Act of 1970 for

abortions constitute a violation of the following

provision of that Act:

‘*Sec. 1008. None of the funds appropriated

under this title shall be used in programs

where abortion is a method of family plan-

ning.’’

Do plaintiffs have standing, either as taxpayers

or under the Administrative Procedure Act, to

challenge expenditures under the Family Plan-

ning Services and Population Act of 1970 for

abortions as a violation of Sec. 1008 of said Act

expressly prohibiting such use of funds.

142 U.S.C. 708

242 U.S.C. 300

4

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this case which

appear in full text in the appendix hereto, at page App. 1,

are Sec. 508(a) of the Social Security Act, 42 U.S.C. Sec.

708; Sec. 1008 of the Family Planning Services and Popu-

lation Research Act of 1970, Title 42 U.S.C. Sec. 300; and

Sec. 10 of the Administrative Procedure Act, 5 U.S.C.

Sec. 702. The case also involves the First Amendment of

the Constitution of the United States.

STATEMENT OF THE CASE

A. Nature of the case, course of proceedings and disposi-

tion below.

This is a taxpayers’ suit challenging the constitutionali-

ty of provisions of the Social Security Act (Title 42, U.S.C.

Sec. 708), and the Family Planning Services and Popula-

tion Research Act of 1970 (42 U.S.C. See. 300 et seq.), and

expenditures under those acts, as an infringement upon

plaintiffs’ rights under the First Amendment to the free

exercise of religion and against laws respecting an estab-

lishment of religion.

The trial court denied plaintiffs’ application for a three-

judge court on the basis the constitutional questions raised

were insubstantial. 343 F.Supp. 1358 (1972). (App. p.

App. 22)

The complaint also charges that expenditures were be-

ing made for family planning programs involving abor-

tion, notwithstanding a statutory prohibition against such

expenditures providing:

‘*None of the funds appropriated under this title

shall be used in programs where abortion is a method

of family planning.’’*

342 U.S.C. § 300 a-6.

5

The trial judge, after dismissing the constitutional

claims, held that plaintiffs no longer had standing to chai-

lenge the statutory authority for the expenditures to sup-

port abortion, and the suit was dismissed. 387 F.Supp.

1086 (1975). (App. p. App. 14)

Plaintiffs appealed from the order denying the motion

for a three-judge court and from the order and judg-

ment dismissing the action. The Court of Appeals for

the Seventh Circuit on March 9, 1976 in an unpublished

order affirmed the District Court and adopted the District

Court’s opinion as its own. (App. p. App. 13)

B. The facts.

Plaintiff Civic Awareness is a non-profit Wisconsin cor-

poratica whose members reside in Wisconsin and in var-

ious other states, associated for the purpose of upholding

the principles of Judec-Christian civilization and oppos-

ing artificial contraception, cloning, vasectomy, abortion

and similar activities as corrosive of the morals of youth

and laws protecting public morality.

Plaintiffs Rose Emmons and Joanne Kuffel are Wiscon-

sin citizens and federal taxpayers; they are members of a

religion which holds that the human life of a person is a

gift of the Creator at the time of conception, that he is

endowed at that time with the right to life and, during his

maturity the right to transmit life; that artificial contra-

ception, cloning, vasectomy, and abortion are morally

wrong.

Defendant Secretary of HEW is charged with adminis-

tering Sec. 508(a) of the Social Security Act which pro-

vides for grants to non-profit private agencies for family

planning services; the Secretary is also charged with

administering the ‘‘ Family Planning Services and Popula-

6

tion Research Act of 1970’’ which provides, among other

things, for the making of grants and entering into con-

tracts with non-profit private agencies for family planning

projects.* The 1970 act authorizes an appropriation of $30

million for the fiscal year ending June 30, 1971; $60 mil-

lion for the year ending June 30, 1972; and $90 million for

the year ending June 30, 1973. The provisions of the

Social Security Act and the Family Planning Services and

Population Research Act of 1970 involved in this case are

attached as exhibits to the amended complaint and found

herein at App. p. App. 9 and App. p. App. 2.

In February 19.1, HEW made a grant to defendant

Planned Parenthood Association of Milwaukee (now

known as Planned Parenthood Association of Wiscon-

sin, Inc.) under Sec. 508(a) of the Social Security Act in

the amount of $224,790 for family planning. This defen-

dant is one of 182 affiliates of the defendant Planned

Parenthood-World Population and these defendants are

hereinafter referred to collectively as the ‘‘defendant

Planned Parenthood.” The purpose of the defendant

Planned Parenthood is to obtain federal financing for

artificial contraception, sexual sterilization, eradication of

all restrictions on fertility control including those based

on age and marita! status and repeal of all abortion laws.

The defendant Planned Parenthood in the year 1970

was responsible in Milwaukee for 486 vasectomies from

May 1 through December 1; 700 vasectomy referrals to

doctors in private practice and abortion counseling to more

than 500 women July through December, 1970 (Exhibit

‘*B”’ of Plaintiffs’ Amended Complaint).

*42 U.S.C. § 300 (App. p. App. 2).

7

The complaint also alleges that both the national and

local leadership of Planned Parenthood have a long rec-

ord in favor of federal subsidy and financing of abortion

on demand, sterilization, vasectomy and artificial contra-

ception.

Further the defendant Planned Parenthood is charged

by the complaint with having conducted massive nation-

wide propaganda for family planning programs strongly

urging artificial contraception, sterilization and abortion,

particularly for the poor and for so-called unwanted chil-

dren to the peint where such programs are, in fact, manda-

tory.

The complaint also charges the grants made by the de-

fendant HEW to the defendant Planned Parenthood or-

ganizations are for the fostering of artificial contraception,

vasectomy and abortion counseling, despite the provision

in the 1970 act excluding abortion.

The plaintiffs charge that the statute itself, and also the

grants already made and the threatened continuing grants,

aid in the establishment of a religion, to-wit: Secular

Humanism; the past and threatened future grants also

require plaintiffs to support a religion of human procrea-

tion and the use of federally supported genetics and selec-

tive population control all of which is contrary to their

own and to the moral standards of the people of the United

States for the greater part of its history.

REASONS FOR GRANTING THE WRIT

I.

THIS COURT MUST RESOLVE THE IMPORTANT

QUESTION WHETHER FEDERAL FINANCING OF

ABORTION, ARTIFICIAL CONTRACEPTION, VASEC-

TOMIES, STERILIZATION AND CLONING CONSTI-

TUTES A VIOLATION OF THE FREE EXERCISE AND

ESTABLISHMENT CLAUSES OF THE FIRST AMEND-

MENT.

A. The public importance of these questions.

This case challenges government financing and promo-

tion of a specific, innovative pattern of sexual behavior,

inescapably involving the government in the moral and

religious sphere.

That human sexual beiavior is an area in which the

government simply does not belong was, in effect, the

holding of Griswold v. Connecticut, 381 U.S. 479 (1965).

Griswold involved the prosecution of a Planned Parent-

hood director and a doctor under the state law prohibit-

ing use of a drug for contraception. The court struck down

the state law because it ‘‘.. . operates on an intimate rela-

tion of husband and wife... in an aspect of that relation.’’

Id. at p. 482. The court went on to characterize the field of

human sexual conduct as being ‘‘sacred.’’ Id. at p. 485.

In Roe v. Wade, 410 U.S. 113 (1973) this court struck

down certain anti-abortion laws and seriously circum-

scribed others. It did so not because abortion is gocd or

because it should be promoted by the government, but

rather, precisely because government presence in such

9

intimate and private matters, even where merely regula-

tive, is repugnant to the First Amendment. It is just as

impermissible for the government to be in the ‘‘sacred

precincts of marital bedrooms’’ (Griswold, p. 485) pro-

moting and participating in one type of activity (such as

those challenged in the instant case) as it is for the

government to be in these sacred precincts forbidding

other types of activity.

It is clear from Griswold and Roe that the proscriptions

against government activity regarding the personal inti-

macies of the home, family, marriage, motherhood and

procreation are not merely due to the privacy to which

these matters are constitutionally entitled, but also to

the moral consequences essentially involved in these activi-

ties. Sex and sexual behavior are by definition sacred and

moral matters because they deal with the creation of a

human being. The act of creation of a human being is

completely beyond the jurisdiction of the United States

Congress. Quite literally, it is in the jurisdiction of God,

the Creator:

‘‘We hold these truths to be self-evident, that all men

are created equal, that they are endowed by their

creator with certain unalienable rights, that among

these are life, liberty and the pursuit of happiness.

..’’ American Declaration of Independence.

This court has held these words to be the spirit of the

Constitution and a formal recognition of the divine source

of man and his fundamental rights. Butchers Union v.

Cream City, 111 U.S. 746, 756 (1884).

Government intervention in the sacred precincts of mari-

tal bedrooms by promotion of a particular pattern of sex-

ual behavior is especially offensive when the pattern is

innovative in character. The traditions embodied in the

10

Declaration of Independence are reflected in the language

of the Supreme Court in Zorach v. Clausan, 343 U.S. 306,

313 (1952): ‘‘We are a religious people whose institutions

presuppose a Supreme Being.’’ This was recently reaf-

firmed by this court in School Dist. of Abington Twt. v.

Schempp, 374 U.S. 203, 213 (1963). The moral and re-

ligious values of our civilization respecting sex in human

life, are in fact embodied throughout our constitutional,

statutory and common law. These include concepts of due

process and laws against various forms of indecent be-

havior. The statutes complained of in this action and ex-

penditures thereunder promote and finance kinds of sexual

behavior which traditionally have been considered heinous,

much less contrary to the traditions of our civilization and

laws. The language of Lemon v. Kurtzman, 43 U.S. 602,

624 (1971) is therefore particularly apt to the statutes and

expenditures complained of herein:

‘‘Indeed the state programs before us today represent

something of an innovation. We have already noted

that modern governmental programs have self-per-

petuating and self-expanding propensities. These in-

ternal pressures are only enhanced when the schemes

involve institutions whose legitimate needs are grow-

ing and whose interests have substantial political sup-

port. Nor can we fail to see that in constitutional

adjudications some steps, which when taken were

thought to approach ‘the verge,’ have become a plat-

form for yet further steps. A certain momentum de-

velops in constitutional theory and it can be a ‘down-

hill thrust’ easily set in motion but difficult to retard

or stop.’’ (Emphasis supplied)

The public importance of this question is enhanced by

the flagrant coercion arising from the aggressive prosely-

tizing and promotion of the various ‘‘family planning’’

programs of defendants. Despite defendants’ insistence

11

that both statutes involved in the instant case are care-

ful to insist on ‘‘voluntary participation,’’ Exhibit ‘‘H-1’’

to plaintiffs’ motion to convene a three-judge court (an

article from the January 1972 (Vol. 1, No. 1) issue of

Family Planning Digest published by the National Center

for Family Planning Services of the Department of

H.E.W.) demonstrates the contrary. This article shows

the pressure methods used by H.E.W. ‘‘Outreach’’ per-

sonnel to herd poor people into their control for ‘‘family

planning,’’ and to reach ‘‘program drop-outs’’ or persons

who ‘‘never showed up”’ and also to reach female ‘‘target’’

population or teenagers who are just beginning sexual

activity. According to the above article, ‘‘. . . this is the

stage when introduction of family planning information

into school curriculum becomes an important concern.’’

This court in Engle v. Vitale, 370 U.S. 421 (1962) noted:

‘*When the power and prestige and financial support

of government is placed behind a particular religious

belief, the indirect coercive pressure upon religious

minorities to conform to the prevailing officially ap-

proved religion is plain.’’

The legislation involved in the instant case, as described

in paragraph 10 of plaintiffs’ complaint, is particularly

designed for persons of low income. No one can reason-

ably argue in the practical world that this legislation is

not mandatory and coercive within the meaning of Engle

v. Vitale, supra.

B. What would the result in Tilton v. Richardson, 403

U.S. 672 (1971), have been if the funds invoived had

been granted for marriage guidance courses?

This court has not heretofore determined whether gov-

ernmental intervention and promotion of an innovative

pattern of sexual conduct contravenes the Free Exercise

12

and Establishment clauses of the First Amendment. The

courts below and defendants herein rely heavily upon Tilton

v. Richardson, 403 U.S. 672 (1971), contending they show

the instant plaintiffs’ constitutional claims are insubstan-

tial. The Tilton decision itself, however, demonstrates the

opposite.

In Tilton this court considered whether the Higher Edu-

cation Facilities Act of 1963 contravened the Establish-

ment and Free Exercise clauses of the First Amendment.

Upholding the Act, this court concluded the Act did not

fall within the criteria or guidelines of impermissible ‘‘gov-

ernment activity in this sensitive area of constitutional

adjudications.’’ Tilton, p. 678. Those criteria include

whether the legislation reflects a secular legislative pur-

pose, has as its primary effect the advancement or inhibi-

tion of religion, fosters excessive governmental entangle-

ment with religion, or inhibits the free exercise of religion.

If in Tilton the federal funds were to be used for mar-

riage guidance courses, no one could reasonably contend

the First Amendment would not have been violated. Simi-

larly if Planned Parenthood here wished to conduct semi-

nars in mathematics, city planning or similar matters the

instant plaintiffs would not be complaining. Unfortunately

the government and Planned Parenthood with government

funds want instead to intrude into the most sensitive area

of religion and morality, namely, the sacred precincts of

sexual conduct. Griswold, supra, says the government

should not be there and Tilton effectively holds the same

thing.

This court has not heretofore determined whether gov-

ernment intervention in and promotion of innovative sex-

ual conduct violates the First Amendment Establishment

13

Clause. The complaint in the instant case formally al-

leges secular humanism is a religion. See Torcaso v. Wat-

kins, 367 U.S. 48 (1961) and Welsh v. United States, 398

U.S. 333 (1970). This is a matter of proof, not before the

court on this petition, and Planned Parenthood and the gov-

ernment must accept the existence of this religion as a

fact for purposes of this petition.

The defendants attempt to classify the statutes chal-

lenged herein as secular statutes which only coincidentally

bear upon tenets of one religion or another. The attempt is

thus made to identify them with divorce legislation, public

support of restaurants which do not serve kosher food,

public funds for transportation and public support of de-

segration. All of the latter, however, are typical examples

of laws and traditions which are ‘‘deeply imbedded in the

fabric of our national life, beginning with the pre-revolu-

tionary colonial times,’’ and within the language of Walz v.

Tax Commission, 397 U.S. 664, 676 (1970):

‘‘Few concepts are more deeply imbedded in the fabric

of our national life, beginning with pre-revolutionary

colonial times, than for the government to exercise

at the very least this kind of benevolent neutrality to-

wards churches and religious exercises generally so

jong as none was favored over others and none suf-

fered interference.

‘‘Tt is significant that Congress from its earliest days

has viewed the religion clauses of the constitution as

authorizing statutory real estate tax exemptions to

religious bodies.’’

In contrast, the statutes and expenditures complained of

herein involve innovative federal programs, repeatedly de-

scribed in defendants’ own promotional material as re-

quiring active proselytizing and conversion to the pattern

14

of sexual behavior advanced by Planned Parenthood and

similar groups.

In this regard it must also be noted that sexual behavior

and specific patterns of sexual behavior are so much a

part of moral and religious values that government promo-

tion of a specific, innovative pattern of sexual behavior at

least constitutes action respecting an establishment of re-

ligion. See Lemon v. Kurtzman, supra, which holds gov-

ernment action may be unconstitutional as respecting an

establishment of religion, even though such action does

not reach the point of establishment of a religion.

This case therefore presents the question, not hereto-

fore decided by this court, whethe: government interven-

tion in and promotion of innovative sexual conduct such as

engaged in by defendants constitutes a violation of the Free

Exercise and Establishment clauses of the First Amend-

ment.

Plaintiffs are entitled to a hearing on these issues.

II.

THE HOLDINGS OF THE LOWER COURTS CONCERN-

ING PLAINTIFFS’ STANDING TO CHALLENGE THE

LEGISLATIVE ENACTMENTS AS FEDERAL TAX-

PAYERS OR UNDER THE ADMINISTRATIVE PRO-

CEDURE ACT REFUSE TO CONSIDER THE EXTRA-

ORDINARY SENSITIVE, MORAL AND RELIGIOUS

ACTIVITIES COMPLAINED OF.

A. Taxpayers’ standing.

The courts below concluded plaintiffs did not allege

‘‘direct injury’’ to themselves as required by this court

in the Frothingham v. Mellon, 262 U.S. 477 (1923) and

Flast v. Cohen, 392 U.S. 83 (1968) cases. According to the

15

District Court the plaintiffs herein raise no more than

‘*generalized grievances’’ about these federal appropria-

tions under the Social Security Act and the Family Plan-

ning Services and Population Research Act of 1970. This

holding ignores plaintiffs’ complaint which alleges not only

grievances relating to financial participation in what are

essentially moral and religious activities repugnant to

plaintiffs’ own moral and religious convictions but also

alleges, because of the coercive nature which the federally

financed programs have, a direct irreparable damage to

the class represented by the plaintiffs.

Frothingham and Flast require both a logical link be-

tween status as a taxpayer and the challenged legislative

enactment, and also a nexus between such status and a

specific constitutional limitation imposed on the taxing and

spending power. Plaintiffs have shown both. In this case

plaintiffs are challenging federal expenditures designed

to prevent or destroy life itself. This includes destruc-

tion of life through all stages of pregnancy, before or after

viability of the fetus, and thus destruction of ‘‘persons’’

within the meaning of the Fifth Amendment to the United

States Constitution. This is a specific limitation upon

Congress’ power. It prevents expenditures for defendants’

programs, which are not part of our country’s traditions

and which, in fact, have traditionally been regarded as

heinous. Plaintiffs’ claims are not ‘‘generalized griev-

ances’’ about the conduct of the federal government but

concern concrete specific and irreparable damage to plain-

tiffs’ class.

B. Standing under the Admini: rative Procedure Act.

Defendants and the lower courts denied plaintiffs’ access

to the federal courts under the Administrative Procedure

Act on the grounds plaintiffs cannot represent unborn

16

children as a result of their class. This court in Data

Processing Services v. Camp, 397 U.S. 150 (1970), and

Barlow v. Collins, 397 U.S. 159 (1970) held persons to have

standing to seek judicial review of federal agency actions

where (1) they allege the challenged action has caused them

‘‘injury in fact,’’ and (2) the alleged injury was to an

interest ‘‘arguably within the zone of interests to be pro-

tected or regulated’’ by the statwtes tit the agencies were

claimed to have violated. The ‘‘interests’? may be non-

economic as well as ecomomie, Sierra Club v. Morton, 504

U.S. 727 (1972). Representatives of those injured have

standing to sue. Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1951); National Assn. for the Ad-

vancement of Colored People v. Alabama ex rel. Patterson,

357 U.S. 449 (1958).

CONCLUSION

We respectfully submit that at least substantial constitu-

tional questions are raised by the complaint’s allegations

of massive federal invasion into the sphere of sexual be-

havior, nationwide federal subsidizing and establishment of

a specific, innovative pattern of sexual behavior, large scale

federal promotion and proselytizing to achieve converts

to that pattern of behavior, all rumiing counter to the be-

liefs of the plaintiffs and their class who by their taxes

are forced to support such activities.

The questions raised are ‘‘not plainly insubstantial,’’

Schneider v. Rusk, 372 U.S. 224, 225 (1963). They are

substantial and of largescale, nationwide import. They

should be decided by a three-judge court.

Moreover, the plaintiffs’ standing to assert their con-

stitutionai claims is sufficient to support, as well, their

statutory allegations, and they additionally have standing

to pursue their statutory claims both as taxpayers and

under the Administrative Procedure Act.

17

Plaintiffs therefore respectfully request that the Court

grant certiorari to the United States Court of Appeals for

the Seventh Circuit.

Respectfully submitted,

Greorce P. Kersten

231 W. Wisconsin Avenue

Milwaukee, Wisconsin 53203

Cnartes B. Cannon

135 S. La Salle Street

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

Roman H. Papxa and

Kersten & McKinnon

231 W. Wisconsin Avenue

Milwaukee, Wisconsin 53203

June 3, 1976

APPENDIX

APPENDIX

Statutory Provisions Involved

Administrative Procedure Act, 5 U.S.C., Sec. 702:

§702. Right of Review.

A person suffering legal wrong because of agency ac-

tion or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to ju-

dicial review thereof. (Pub. L. 89-554, Sept. 6, 1966, 80

Stat. 392.)

Judiciary and Judicial Procedure, 28 U.S.C., Sec. 2281

and 2282:

$2281. Injunction against enforcement of State statute;

three-judge court required.

An interlocutory or permanent injunction restraining the

enforcement, operation or execution of any State statute

by restraining the action of any officer of such State in the

enforcement or execution of such statute or of an order

made by an administrative board or commission acting un-

der State statutes, shall not be granted by any district court

or judge thereof upon the ground of the unconstitutionality

of such statute unless the application therefor is heard and

determined by a district court of three judges under sec-

tion 2284 of this title. (June 25, 1948, ch. 646, 62 Stat. 968.)

§2282. Injunction against enforcement of Federal statute;

three-judge court required.

An interlocutory or permanent injunction restraining the

enforcement, operation or execution of any Act of Congress

for repugnance to the Constitution of the United States

shall not be granted by any district court or judge thereof

unless the application therefor is heard and determined by

a district court of three judges under section 2284 of this

title. (June 25, 1948, ch. 646, 62 Stat. 968.)

App. 2

Family Planning Services and Population Research Act

of 1970 (Tydings Act, 42 U.S.C., Sec. 300 et seq.):

SUBCHAPTER VIII. — POPULATION RESEARCH

AND VOLUNTARY FAMILY PLANNING PRO-

GRAMS

§300. Project grants and contracts for family planning

services,

(a) Authority of Secretary.

The Secretary 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 fam-

ily planning projects.

(b) Factors determining.

In making grants and contracts under this section the

Secretary shall take into account the number of patients to

be served, the extent to which family planning services are

needed locally, the relative need of the applicant, and its

capacity to make rapid and effective use of such assistance.

(c) Authorization of appropriations.

For the purpose of making grants and contracts under

this section, there are authorized to be appropriated

$30,000,000 for the fiscal year ending June 30, 1971;

$60,000,000 for the fiscal year ending June 30, 1972; and

$90,000,000 for the fiseal year ending June 30, 1973 (July

1, 1944, ch. 373 title X, $1001, as added Dec. 24, 1970, Pub.

L. 91-572, §6(c), 84 Stat. 1506.)

Short Title

Section 1 of Pub. L. 91-572 provided that: ‘‘This Act

(which enacted this subchapter and sections 3505a to 3505¢

of this title, and amended provisions set out as notes under

section 201 of this title) may be cited as the ‘‘ Family Plan-

ning Services and Population Research Act of 1970’.’’

App. 3

Congressional Declaration of Purpose

Section 2 of Pub. L. 91-572 provided that:

‘*It is the purpose of this act (see Short Title note

set out hereunder)—

‘*(1) to assist in making comprehensive voluntary

family planning services reading available to all per-

sons desiring such services;

‘*(2) to coordinate domestic population and family

planning research with the present and future needs

of family planning programs ;

‘*(3) to improve administrative and operational su-

pervision of domestic family planning services and of

population research programs related to such serv-

ices ;

‘*(4) to enable public and nonprofit private entities

to plan and develop comprehensive programs of fam-

ily planning services;

‘*(5) to develop and make readily available informa-

tion (including educational materials) on family plan-

ning and population growth to all persons desiring

such information;

‘*(6) to evaluate and improve the effectiveness of

family planning service programs and of population

research ;

‘*(7) to assist in providing trained manpower need-

ed to effectively carry out programs of population re-

search and family planning services; and

‘*(8) to establish an Office of Population Affairs in

the Department of Health, Education, and Welfare as

a primary focus within the Federal Government on

matters pertaining to population research and family

planning, through which the Secretary of Health, Ed-

ucation, and Welfare (hereafter in this Act referred

to as the ‘Secretary’) shall carry out the purposes of

this Act.’’

App. 4

Section Referred to in Other Sections

This section is referred to in sections 300a-300a-4 of

this title.

§300a. Formula grants to States for family planning ser-

vices,

(a) Authority of Secretary; prerequisites.

The Secretary is authorized to make grants, from allot-

ments made under subsection (b) of this section, to State

Health authorities to assist in planning, establishing, main-

taining, coordinating, and evaluating family planning ser-

vices. 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

coordinated and comprehensive program of family plan-

ning services.

(b) Faetors determining amount of State allotments.

The sums appropriated to carry out the provisions of

this section shall be allotted to the States by the Secretary

ou the basis of the population and the financial need of the

respective States.

(c) Definitions.

For the purposes of this section, the term ‘‘State’’ in-

cludes the Commonwealth of Puerto Rico, Guam, American

Samoa, the Virgin Islands, the District of Columbia, and

the Trust Territory of the Pacifie Islands.

(d) Authorization of appropriations.

For the purpose of making grants under this section,

there are authorized to be appropriated $10,000,000 for the

fiseal year ending June 30, 1971; $15,000,000 for the fiscal

year ending June 30, 1972; and $20,000,000 for the fiscal

App. 5

year ending June 30, 1973. (July 1, 1944, ch. 373, title X,

§1002, as added Dee. 24, 1970, Pub. L. 91-572, §6(c), 84 Stat.

1506.)

Section Referred to in Other Sections

This section is referred to in sections 300a-1, 300a-4 of

this title.

$300a-1. Training grants and contracts; authorization of

appropriations.

(a) The Secretary is authorized to make grants to pub-

lic or nonprofit private entities and to enter into contract

with public or private entities and individuals to provide

the training for personnel to carry out family planning ser-

vice programs described in section 300 or 300a of this title.

(b) For the purpose of making payments pursuant to

grants and contracts under this section, there are authorized

to be appropriated $2,000,000 for the fiscal year ending

June 30, 1971; $3,000,000 for the fiseal year ending June

30, 1972; and $4,000,000 for the fiscal year ending June 30,

1973. (July 1, 1944, ch. 373, title X, $1003, as added Dec. 24,

1970, Pub. L. 91-572, §6(c), 84 Stat. 1507.)

$300a-2. Research grants and contracts; authorization of

appropriations.

(a) In order to promote research in the biomedical,

contraceptive development, behavioral, and program im-

plementation fields related to family planning and popula-

tion, 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 for projects for

research and research training in such fields.

(b) For the purpose of making payments pursuant to

grants and contracts under this section, there are author-

ized to be appropriated $30,000,000 for the fisca! year end-

App. 6

ing June 30, 1971; $50,000,000 for the fiscal year ending

June 30, 1972; and $65,000,000 for the fiscal year ending

June 30, 1973. (July 1, 1944, ch. 373, title X, §1004, as added

Dee. 24, 1970, Pub. L. 91-572, §6(¢), 84 Stat. 1507.)

£300a-3. Informational and educational materials develop-

ment grants and contracts; authorization of appropri-

ations.

(a) The Secretary is authorized to make grants to pub-

lic 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 pop-

ulation growth information (including educational mate-

rials) to all persons desiring such information (or mate-

rials).

(b) For the purpose of making payments pursuant to

grants and contracts under this section, there are author-

ized to be appropriated $750,000 for the fiscal year ending

June 30, 1971; $1,000,000 for the fiscal year ending June

30, 1972; and $1,250,000 for the fiscal year ending June 30,

1973. (July 1, 1944, ch. 373, title X, $1005, as added Dec.

24, 1970, Pub. L. 91-572, §6(c), 84 Stat. 1507.)

£300a-4. Grants and contracts.

(a) Regulations governing execution.

Grants and contracts made under this subchapter shall

be made in accordance with such regulations as the Secre-

tary may promulgate.

(b) Payment of grants.

Grants under this subchapter shall be payable in such

installments and subject to such conditions as the Secretary

may determine to be appropriate to assure that such grants

will be effectively utilized for the purposes for which made.

App.7

(c) Prerequisites.

A grant may be made or contract entered into under sec-

tion 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 persons from

low-income families; and

(2) no charge will be made in such project or pro-

gram for services provided to any person from a low-

income family except to the extent that payment will

be made by a third party (including a government

agency) which is authorized or is under legal obliga-

tion to pay such charge.

For purposes of this subsection, the term ‘‘low-income fam-

ily’’ shall be defined by the Secretary in accordance with

such criteria as he may prescribe. (July i, 1944, ch. 373,

title X, §1006, as added Dee. 24, 1970, Pub. L. 91-572, §6(c)

&4 Stat. 1507.)

$300a-5. Voluntary participation by individuals; partici-

pation not prerequisite for eligibility or receipt of other

services and information.

The acceptance by any individual of family planning

services or family planning or population growth informa-

tion (including educational materials) provided through fi-

nancial assistance under this subchapter (whether by grant

or contract) shall be voiuntary and shall not be a prere-

quisite to eligibility for or receipt of any other service or

assistance from, or to participation in, any other program

of the entity or individual that provided such service or in-

formation. (July 1, 1944, ch. 373, title X, §1007, as added

Dec. 24, 1970, Pub. L. 91-572, §6(c), 84 Stat. 1508.)

App. 8

$300a-6. Prohibition against funding programs using abor-

tion as family planning method.

None of the funds appropriated under this subchapter

shall be used in programs where abortion is a method of

family planning. (July 1, 1944, ch. 373, title X, §1008, as

added Dee. 24, 1970, Pub. L. 91-572, $6(c), 84 Stat. 1508.)

Social Security Act of 1935, 42 U.S.C., See. 708:

§708. Special project grants for maternity and infant care.

(a) In order to help reduce the incidence of mental

retardation and other handicapping conditions caused by

complications, associated with childbearing and to help

reduce infant and maternal mortality, the Secretary is

authorized to make, from the sums available under clause

(B) of paragraph (1) of section 702 of this title, grants to

the State health agency of any State and, with the consent

of such agency, to the health agency of any political sub-

division of the State, and to any other publie or non-

profit private agency, institution, or organization, to pay

not to exeeed 75 percent of the cost (exclusive of general

agency overhead) of any project for the provision of—

(1) necessary health care to prospective mothers

(including, after childbirth, health care to mothers and

their infants) who have or are likely to have conditions

associated with childbearing or are in circumstances

which increase the hazards to the health of the mothers

or their infants (including those which may cause phys-

ical or mental defects in the infants), or

(2) necessary health care to infants during their

first year of life who have any condition or are in cir-

cumstances which increase the hazards to their health,

or

(3) family planning services,

but only if the State or local agency determines that the

recipient will not otherwise receive such necessary health

App. 9

care or services because he is from a low-income family or

for other reasons beyond his control. Acceptance of family

planning services provided under a preject under this sec-

tion (and section 712 of this title) sheil be voluntary on

the part of the individual to whom such services are of-

fered and shall not be a prerequisite to the eligibility for or

the receipt of any service under such project.

(b) No grant may be made under this section for any

project for any period after June 30, 1972. (Aug. 14, 1935,

ch. 531, title V, §508, as added Jan. 2, 1968, Pub. L. 90-248,

title I11, §301, 81 Stat. 926.)

Prior Provisions

Provisions similar to those comprising this section were

contained in section 531 of act Aug. 14, 1935, ch. 531, title V,

as added Oct. 24, 1963, Pub. L. 88-156, §4, 77 Stat. 274 (for-

merely classified to section 729 of this title), prior to the

general amendment and renumbering of title V of act Aug.

14, 1935, by Pub. L. 90-248, $301.

Section Referred to the Other Sections

This section is referred to in sections 702, 105, 706 of this

title.

App. 10

Opinions Below

UNITED STATES COURT OF APPEALS

for the Seventh Circuit

Chicago, Llinois 60604

Argued December 12, 1975

March 9, 1976

Before

Hen. Walter J. Cummings, Cireuit Judge

Hon. William J. Bauer, Cireuit Judge

Hon. Joseph Sam Perry, Senior District Judge*

Civic Awareness of America, Ltd., et al.,

Plaintiffs-Appellants,

No. 79-1351

vs.

Secretary of Health, Education and Welfare, et al.,

Defendants-Appellees.

On appeal from order denying motion to convene a three-

judge court and from order dismissing action in United

States District Court for the Eastern District of Wisconsin.

No. 71 C 344

John W. Reynolds, Judge.

ORDER

The individual plaintiffs are Wisconsin residents and

citizens and taxpayers of the United States. The other

plaintiff is a non-profit Wisconsin corporation opposing

abortion. The defendants are the Secretary of the Depart-

ment of Health, Education and Welfare (‘‘HEW’’),

* Senior District Judge Joseph Sam Perry of the Northern Dis-

trict of Illinois is sitting by designation.

App. 11

Planned Parenthood Association of Milwaukee, Wisconsin,

its president Donald S. Buzard, and Planned Parenthood-

World Population, the parent national organization with

its headquarters in New York City.

In their amended complaint, plaintiffs allege that the

Secretary of HEW granted the Milwaukee association

$224,790 in February 1971 for ‘‘family planning’’ under

Section 508(a)(3) of the Social Security Act (42 U.S.C.

§$708(a)(3). Plaintiffs also allege that he planned to

grant defendants substantial funds from appropriations

under the Family Planning Services and Population Re-

search Act of 1970 (42 U.S.C. §300 et seq.) for abortion

counseling. Plaintiffs challenge the Secretary’s actions on

two grounds. They allege that the statute violates the free

exercise and establishment clauses of the First Amend-

ment. Alternatively, they contend that the grants made

by the Secretary -iolated a provision of the 1970 statute

with respect to abortion.’

Pursuant to the constitutional claim, plaintiffs sought

injunctive relicf and moved to convene a three-judge court.

In its first opinion, the district court refused to convene a

three-judge court pursuant to 28 U.S.C. $2282 on the ground

that the constitutional challenge was insubstantial. 343 F.

Supp. 1358. With regard to the statutory claim, plaintiffs

sought a declaratory judgment construing the federal stat-

utes in question so that grants could not be made under

them for ‘‘purposes of artificial contraception, vasectomy

or abortion * * *.’* In its second opinion (387 F.Supp.

142 U.S.C. § 300a-6 provides:

“None of the funds appropriated under this subchapter shall

be used in programs where abortion is a method of family plan-

ning.”

App. 12

1086), the curt held that the statutory complaint should

he dismissed because plaintiffs lacked standing to bring the

action as taxpayers or under Section 10 of the Administra-

tive Procedure Act (5 U.S.C. §702).

In its opinion on the constitutional question, the district

court carefully analyzed plaintiffs’ claims that the pay-

ments to Planned Parenthood established a religion labeled

‘*secular humanism,’’ and that the availability of counsel-

ing on certain methods of family planning restrained plain-

ffs’ free exercise of their religious beliefs. We agree with

the district court’s reasoning and adopt its opinion as our

own. See Meek v. Pittenger, 422 U.S. 349, 358-359.

We also agree with the district court that the statutory

action should be dismissed for want of plaintiffs’ standing

and again adopt its opinion as our own. See also Reich v.

City of Freeport, ........ _ pa i plaatines (7th Cir. No. 75-1027,

aceided December 24, 1975, slip op. 4-6); Korioth v. Bris-

coe, 023 F.2d 1271 (Sth Cir. 1975).

Judgment affirmed.

App. 13

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

March 9, 1976

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. William |. Bauer, Cireuit Judge

Hon. Joseph Sam Perry, Senior District Judge*

Civic Awareness of America, Ltd., et al.,

Plaintiffs-Appellants,

No. 75-1351

Vs.

Secretary of Health, Education and Welfare, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 71 C 344

John W. Reynolds, Judge.

This cause came on to be heard on the transcript of the

record from the Uaited States District Court for the East-

cern District of Wisconsin, and was argued by counsel.

On consideration whereof, it is ordered and adjudged by

this court that the judgment of the said District Court in

this cause a; pealed from be, and the same is hereby, AF-

FIRMED, with costs, in accordance with the order of this

Court entered this date.

* Senior District Judge Joseph Sam Perry of the Northern Dis-

trict of Illinois is sitting by designation.

App. 14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CIVIC AWARENESS OF AMERICA LTD., a non-profit

Wisconsin corporation, ROSE EMMONS and JOANNE

KUFFEL,

Plaintiffs,

v.

ELLIOT L. RICHARDSON, Secretary of the Department

of Health, Education and Welfare, DONALD S. BUZARD,

President of Planned Parenthood Association of Milwau-

kee, PLANNED PARENTHOOD ASSOCIATION OF

MILWAUKEE, a Wisconsin corporation, and PLANNED

PARENTHOOD-WORLD POPULATION, a foreign cor-

poration,

Defendants.

DECISION AND ORDER

Civil Action No. 71-C-344

(February 3, 1975)

This case involves a challenge to the use of federal funds

for family planning and birth control. Plaintiffs are a non-

profit corporation and individuals who oppose certain

forms of population control. They seek to prevent further

grants by defendant Elliot L. Richardson to defendants

Planned Parenthood Association of Milwaukee and Plan-

ned Parenthood-World Population (hereinafter ‘‘Planned

Parenthood”) under § 508(a)(3) of the Social Security

Act, 42 U.S.C. § 708(a)(3), and future grants under the

Family Planning Services and Population Research Act

of 1970, 42 U.S.C. § 300.

This court previously denied the plaintiffs’ motion to

convene a three-judge district court, 348 F.Supp. 1358

(1972), on the grounds that the constitutional claims raised

App. 15

were insubstantial, frivolous, and without merit. Defen-

dant Planned Parenthood has now moved to dismiss the

remaining statutory claims. Defendant Richardson has

filed an answer accompanied by an affidavit and has moved

for judgment on the pleadings or, in the alternative, for

summary judgment. The defendants contend that the

plaintiffs lack standing to sue and that, as a matter of law,

the allocations to Planned Parenthood do not violate the

statutes in question. It is unnecessary to reach their sec-

ond contention, for I find that the plaintiffs lack standing

to bring this action both as taxpayers and under the Ad-

ministrative Procedure Act.

TAXPAYER STANDING

Prior to 1968, the leading Supreme Court case on the

standing of taxpayers to challenge federal expenditures

was Frothingham vy. Meilon, 262 U.S. 447 (1923). The

plaintiff in that case challenged federal funding under the

Maternity Act of 1921 for state programs aimed ‘‘to re-

duce maternal and infant mortality and protect the health

of mothers and infants.’’ /d., at 479. She alleged that the

congressional enactment usurped power reserved to the

states under the Tenth Amendment. Thus, she claimed,

its effect would be to take her property under the guise of

increased future taxes without due process of law.

The Court denied standing, noting that a federal tax-

payer’s ‘‘interest in the moneys of the Treasury’’ is ‘‘com-

paratively minute and indeterminable,’’ and that ‘‘the

effect upon future taxation, of any payment out of the

| Treasury’s] funds,’’ * * * is ‘‘remote, fluctuating and un-

eertain.’’ Id., at 487. As a result, the Court ruled that

the taxpayer had failed to allege the type of ‘‘direct in-

jury’’ necessary to confer standing, stating at 488:

App. 16

‘«* * * The party who invokes the [judicial] power

must be able to show not only that the statute is in-

valid but that he has sustained or is immediately in

danger of sustaining some direct injury as the result

of its enforcement, and not merely that he suffers in

some indefinite way in common with people generally.

* ® #9)

In Flast v. Cohen, 392 U.S. 83 (1968), the Court re-

examined the limitations on federal taxpayer standing.

There the taxpayer-plaintiffs alleged that the First

Amendment’s Establishment Clause was violated by the

appropriation of federal funds under the Elementary and

Secondary Education Act of 1965 to assist religious

schools. The Court summarized the issue of standing as

follows at 99:

‘* * * The ‘gist of the question of standing’ is

whether the party seeking relief has ‘alleged such a

personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

depends for illumination of difficult constitutional

questions.’ Baker v. Carr, 369 U.S. 186, 204 (1962).

* * #99

The Court distinguished Frothingham and ruled that there

is no absolute constitutional bar to taxpayer suits. It then

proceeded to erect a two-tier standing test for federal tax-

payers who challenge the constitutionality of a federal

spending program. The plaintiff-taxpayer must show (1)

a ‘‘logical link’’ between his status as taxpayer and the

challenged legislative enactment, in this case under the

taxing and spending clause of Article I, Section 8, of the

Constitution; and (2) a ‘‘nexus’’ between his status and

App. 17

a specific constitutional limitation imposed on the taxing

and spending power, such as the Establishment Clause.

Id., at 102-103.

The vitality of the FYrothingham limitation on federal

taxpayer suits as well as the narrowness of the F last test

for taxpayer standing are made evident by the Court’s

recent decision in United States v. Richardson, ........ US.

iui , 94 8.Ct. 2940, 41 L.Ed.2d 678 (1974). The Court ruled

that the plaintiff-taxpayer Richardson lacked standing

since he fell short of the Flest criteria and within the

Frothingham holding. The Court reaffirmed the principle

of Frothingham precluding a taxpayer’s use of ‘‘a federal

court as a forum in which to air his generalized grievances

about the conduct of government or the allocation of power

in the Federal System.’’ Fiast v. Cohen, supra, at 106. See

also Schlesinger v. Reservists’ Committee to . cop the War,

= | ou , 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

These decisions make it apparent that the individual and

corporate plaintiffs lack standing to maintain this action

as taxpayers.’ This court’s earlier ruling determined that

the plaintiffs’ challenge to the instant expenditures under

the Establishment Clause was insubstantial, frivolous, and

without merit. The previous ruling prevents further re-

liance by the individual plaintiffs upon Fast for taxpayer

! Plaintiffs’ assertion of the continued justiciability of the statu-

tory questions has no bearing on the initial issue of the plaintiffs’

standing to raise these matters. Standing to sue is an element of the

constitution’s “cause or controversy” requirement, 2d in public ac-

tions such as this one, it is necessary to first iiquire whether the

party seeking relief is a proper party to raise the issues and litigate

them before the court.

App. 18

standing. Their statutory allegations must be tested

under the Frothingham ‘‘direct injury’’ rule. So mea-

sured, the plaintiff-taxpayers raise no more than ‘‘gen-

eralized grievances’’ about these federal appropriations;

indeed, their allegations bear a strong resemblance to those

found deficient in Frothingham. The impact on them, like

on the plaintiff in Richardson, is undifferentiated and

common to all members of the public. Hence, they lack a

personal stake in the outcome which is necessary to con-

fer standing.

The corporate plaintiff is likewise without standing to

sue as a taxpayer. Organizations whose members are in-

jured have been allowed to put forward these persons’ con-

stitutional rights in a proceeding for judicial review.

N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449,

458-460 (1958); Joint Anti-Fascist Refugee Committee v.

MeGrath, 541 U.S. 121, 149-154 (1951) (Frankfurter, J.,

concurring). We may assume arguendo that Civil Aware-

ness of America Ltd., though not itself a taxpayer, may as-

sert the constitutional rights of its member-taxpayers. See

Schlesinger, supra. Applying the Flast holding, the cor-

porate plaintiff, like its individual co-plaintiffs, fails to

satisfy the nexus test and, hence, Jacks standing te sue as

a taxpayer.

* Plaintiffs’ a fortiori argument that they continue to have tax-

payer standing to challenge a federal expenditure designed to pre-

vent or destroy life is without merit. As a general rule, litigants

may rely on constitutional rights which are personal to themselves

and may not, save in exceptional cases, assert the rights of absent

third parties, such as an unborn fetus. Ti/eston v. Ullman, 318

U.S. 44 (1943).

App. 19

ADMINISTRATIVE PROCEDURE ACT STANDING

Plaintiffs next contend that they have standing under

$ 10 of the Administrative Procedure Act (hereinafter

**A.P.A.’’), 5 U.S.C. § 702, which provides:

‘*A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.’’

In Data Processing Services v. Camp, 397 U.S. 150

(1970), and Barlow vy. Collins, 397 U.S. 159 (1970), the

plaintiffs were held to have standing under this statute to

secure judicial review of federal agency action where (1)

they had alleged that the challenged action had caused

them ‘‘injury in fact,’’ and (2) the alleged injury was to

an interest ‘‘arguably within the zone of interests to be

protected or regulated’’ by the statutes that the agencies

were claimed to have violated. The Supreme Court’s sub-

sequent interpretation of ‘‘injury in fact’’ in Sierra Club

v. Morton, 405 U.S. 727 (1972), indicates that persons suf-

fering a noneconomic injury shared by many others can

properly seek judicial review of an agency’s action, but

only if they themselves are among the injured. See also

l'nited States v. SCRAP, 412 U.S. 669 (1973).

In the present case, the plaintiffs claim to represent

‘*some of the unborn children, as part of their class. They

assert that these unborn will not be born as a result of

the instant federal expenditures, and that this fact satis-

fies both requirements for the plaintiffs to have standing

under A.P.A. § 10 to press their statutory claims. Denomi-

nating their suit a class action will not suffice in this in-

stance, for plaintiffs ‘‘cannot represent a class of [which]

they are not a part,’’ namely, the unborn. Bailey v. Patter-

son, 369 U.S. 31, 32-33 (1962); Hall v. Beals, 2396 US, 45,

48-49 (1969). ‘** * * [NJamed plaintiffs without the right

App. 20

to further represent themselves can[not] continue to rep-

resent unnamed parties allegedly in a similar situation.’’

Watkins v. Chicago Housing Authority, 406 F.2d 1234,

1236 (7th Cir. 1969). Even assuming a proper class action

here, plaintiffs’ allegations fail to satisfy the A.P.A. test

for standing. Nowhere is it shown that the unborn have an

interest ‘‘protected or regulated’’ by the Social Security

Act or the Family Planning Services and Population Act

of 1970.

Plaintiffs further allege that they, who do not use family

planning services, have standing under A.P.A. § 10 to

challenge these federal expenditures due to the reduced

availability of medical facilities and personnel which would

result from providing family planning services to others.*

Assuming that this is a harm, it is not such a direct and

specific harm sufficient to supply standing, for the Supreme

Court has stated that:

‘(* & *

A plaintiff must allege that he has been or

will in fact be perceptibly harmed by the challenged

agency action, not that he can imagine circumstances

in which he could be affected by the agency’s action.

And it is equally clear that the allegations must be

true and capable of proof at trial. * * *’’ SCRAP,

supra, at 688-689.

The plaintiffs have failed to show that the interest they

seek to protect is within the interests to be protected by

the family planning statutes in question.

In both the Sierra Club and SCRAP opinions, the Su-

preme Court stated that the A.P.A.’s standing provisions

% The plaintiffs also assert that they are injured by the coercive

impact of family planning programs on potential users of these

services. This contention is without merit, for I noted in the initial

order in this case that “Both siatutes are carefui to insist on volun-

tary participation.” 343 F.Supp. at 1361.

App. 21

should not be construed ‘‘to authorize judicial review at

the behest of organizations or individuals who seek to do

no more than vindicate their own value _ preferences

through the judicial process.’’ Sierra Club, supra, at 740;

SCRAP, supra, at 687. Since the plaintiffs fall into this

‘‘concerned bystander’’ category and have failed to estab-

lish their standing to litigate these statutory claims, the

respective defendants’ motion to dismiss and motion for

judgment on the pleadings must be granted.

For the above reasons and for the reasons set forth in

this Court’s earlier decision in this action at 348 F.Supp.

1358 (1972).

IT IS ORDERED that this action be and it hereby is

dismissed on its merits.

Dated at Milwaukee, Wisconsin, this 3rd day of Feb-

ruary, 1975.

/s/ John W. Reynolds

U.S. District Judge

JUDGMENT

(Filed February 18, 1975)

This action came on for (hearing) on defendants’ motion

to dismiss before the Court, Honorable John W. Reynolds,

United States District Judge, presiding, and the issues

having been duly (heard) and a decision having been duly

rendered, and the court having granted defendants’ mo-

tion to dismiss.

It is Ordered and Adjudged that the action be dismissed

on the merits.

Dated at Milwaukee, Wisconsin, this 18th day of Feb-

ruary, 1975.

/s/ Ruth W. LaFave

Clerk of Court

App. 22

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CIVIC AWARENESS OF AMERICA LTD., a non-profit

Wisconsin corporation, ROSE EMMONS and JOANNE

KUFFEL,

Plaintiffs,

V.

ELLIOTT L. RICHARDSON, Secretary of the Depart-

ment of Health, Education and Welfare, DONALD S.

BUZARD, President of Planned Parenthood Association

of Milwaukee, PLANNED PARENTHOOD ASSOCIA-

TION OF MILWAUKEE, a Wisconsin corporation, and

PLANNED PARENTHOOD-WORLD POPULATION,

a foreign corporation,

Defendants.

DECISION AND ORDER

Civil Action No. 71-C-344

(July 24, 1972)

This is a suit to curtail the use of federal funds for

family planning and birth control. Plaintiffs are a non-

profit corporation und individuals who oppose artificial

contraception, cloning, vasectomy, and abortion. Defen-

dants Planned Parenthood Association of Milwaukee and

Planned Parenthood- World Population (hereinafter

‘*Planned Parenthood’’) are corporations engaged in fam-

ily planning and birth control. Their activities include,

App. 23

among other things, providing on a volunteer basis vasec-

tomies and abortion counselling. Pursuant to § 508(a) (3)

of the Social Security Act, funds have been granted to

Planned Parenthood by defendant Elliot L. Richardson.

The complaint also alleges that in the future the Depart-

ment of Health, Education and Welfare may grant funds

to Planned Parenthood pursuant to the Family Planning

Services and Population Research Act of 1970.

Plaintiffs seek declaration and interlocutory injunctive

relief in order to prevent grants of federal funds for artifi-

cial contraception, vasectomies, and abortions on the

grounds that such funding is without statutory authority

and in any case contravenes the Constitution. Federal

question jurisdiction is asserted. Because of the complaint

challenges federal statutes as being unconstitutional and

seeks injunctive relief, the plaintiffs have moved to con-

vene a three-judge district court pursuant to Title 28

U.S.C. $2282. Defendants oppose this motion on the

ground that the constitutional challenge is insubstantial.

The matter having been briefed and argued before me, I

find for the defendants.

Section 508(a) of the Social Security Act (Title 42

U.S.C. § 708) provides in part as follows:

‘‘(a) In order to help reduce the incidence of

mental retardation and othcr handicapping conditions

caused by complications associated with childbearing

and to help reduce infant and maternal mortality, * * *

(funds may be granted for)

App. 24

‘*(3) family planning services,

*

*. Aeceptance of family planning services pro-

vided under a project under this section * * * shall be

voluntary on the part of the individual to whom such

services are offered and shall not be a prerequisite to

the eligibility for or the receipt of any service under

such project.”’

The Family Planning Services and Population Research

Act of 1970 (Pub.L. 91-572) (Title 42 U.S.C. § 300) reads

in part as follows:

‘*See. 2 It is the purpose of this Act—

‘*(1) to assist in making comprehensive voluntary

family planning services readily available to all per-

sons desiring such services;

‘*Sec. 1001(a) The Secretary is authorized to make

grants to and enter into contracts with public or non-

profit private entities to assist in the establishment

and operation of voluntary family planning projects.

‘*See. 1007 The acceptance by any individual of

family planning services * * * shall be voluntary

** # 9)

.

Plaintiffs contend that grants to Planned Parenthood

under these statutes violate the First Amendment’s prohi-

bition that ‘‘Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

ihereof * * *.’? In light of prior decisions of the Supreme

Court this contention is insubstantial and without merit.

Plaintiffs do not contend that Planned Parenthood them-

selves are private religious organizations, teach religion,

or even that they are controlled by such a body. Thus, this

case differs from those involving grants to parochial

schools and students, see, e.g. Lemon v. Kurtzman, 403

App. 25

U.S. 602 (1971), or grants to secular institutions operated

by religious groups, see, e.g., Bradfield v. Roberts, 175 U.S.

291 (1899) (hospital run by Roman Catholics). Rather,

plaintiffs characterize birth control as a tenet of a re-

ligion, which by their complaint they allege to exist, called

‘*secular humanism,’’ and from this they argue that gov-

crnment support of birth control is constitutionally insep-

arable from government support of the religion ‘secular

Laimanism.’’ The establishment clause ‘‘does not ban fed-

eral or state regulation of conduct whose reason or effect

merely happens to coincide or harmonize with the tenets

of some or all religions. In many instances, the Congress

or state legislatures conclude that the general welfare of

society, wholly apart from any religious considerations,

demands such regulation. Thus, for temporal purposes,

murder is illegal. And the fact that this agrees with the

dictates of the Judaeo-Christian religions while it may

disagree with others does not invalidate the regulation—so

too with the questions of adultery and polygamy. Davis v.

Beason, 135 U.S. 333; Reynolds v. United States, supra

(98 U.S. 145). The same could be s:id of theft, fraud, ete.,

heeause those offenses were also proscribed in the Deca-

logue.’’ McGowan vy. Maryland, 366 U.S. 420, 442 (1961).

In McGowan the court sustained Sunday ‘‘blue’’ laws

against an attack based on the establishment clause even

though ‘‘blue’’ laws aid certain religions in maintaining

their Sabbath and, in fact, were historically enacted for

this purpose because the modern basis for these laws is a

secular one and the aid to any religion is incidental.

>

In the case before me plaintiffs do not suggest that Con-

vress enacted the challenged statutes for any other reasons

than those contained upon the face of the statutes:

‘‘In order to help reduce the incidence of mental

retardation and other handicapping conditions caused

by complications associated with childbearing and to

App. 26

help reduce infant and maternal mortality * * *.’’

$ 508(a) Social Security Act (Title 42 U.S.C. § 708

(a)).

‘*to assist in making comprehensive voluntary fam-

ily planning services readily available to all persons

desiring such services; * * *’’ § 2 Family Planning

Services and Population Research Act of 1970 (Title

42 U.S.C. § 300).

There is nothing before me to suggest otherwise. See

Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). Instead

plaintiffs take the position that the purpose of promoting

family planning or indeed promoting any ‘‘pattern of sex-

ual behavior’’ is per se religious.

It is of course true that some activities are so steeped

in religion and limited to religious use that except in un-

usual circumstances to promote them is per se to promote

religion. In Abington School District v. Schempp, 374 U.S.

203 (1963), for instance, Bible reading in public schools at

the beginning of each school day was found to contravene

the establishment clause. However, sexual behavior or

family planning, while clearly possessing religious signifi-

cance in the minds of some citizens, just as clearly do not

find their origins, as does the Bible, in religion; are not

so steeped with religious implications as to be virtually

inseparable from religion, as is the Bible; and finally are

not, as is the Bible, limited almost solely to religious use.

Davis v. Beason, supra, and Reynolds v. United States,

supra, finding that adultery and polygamy may be for-

bidden, stand as clear Supreme Court authority to the

effect that legislation in the area of sexual activities is not

per se establishment of religion. I find the argument that

Abington as opposed to McGowan controls the case before

me to be clearly insubstantial and frivolous.

© lila

App. 27

Turning next to plaintiffs’ contention that their exer-

cise of religion is impaired, I find that this position, too,

is without merit. Both statutes are careful to insist on

voluntary participation. Thus, there is no threat that

plaintiffs will be compelled to learn about or exercise birth

control. Nor can they be heard to complain of religious re-

straint because part of their taxes go to fund Planned

Parenthood. Tilton v. Richardson, 403 U.S. 672, 689 (1971).

In light of my conclusion that plaintiffs’ constitutional

challenge is insubstantial and frivolous, it is clear, even

assuming that the other requirements of Title 28 U.S.C.

$ 2282 are met, that plaintiffs’ motion to convene a three-

judge court must be denied. Jdlewild Bon Voyage Liquor

Corp. v. Epstein, 370 U.S. 7138 (1962). However, in that

this action challenges government grants to Planned

Parenthood upon statutory as well as constitutional

grounds, my decision today disposes of only a cause of

action and not the entire case before me.

IT IS THEREFORE ORDERED that plaintiffs’ mo-

tion to convene a three-judge court be and it hereby is de-

nied.

IT IS FURTHER ORDERED that defendants shall file

a brief in support of their previously filed motion to dis-

miss no later than twenty-one days from the daie of entry

of this order. Plaintiffs may file a responding brief no

later than forty-two days from the date of the entry of this

order. Defendants shall have, forty-nine days from the

cate of the entry of this order to respond. Unless other-

wise ordered, the motion to dismiss will be decided upon

the briefs filed without oral argument.

Dated at Milwaukee, Wisconsin, this 24th day of July

1972.

/s/ John W. Reynolds

U.S. District Judge