Amicus Curiae Brief — Bowen v. Kendrick

Supreme Court brief1988

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ZOUEPH F. SPANO

Nos. 87-253, 87-431, 87-462 and 87-775

IN THI

Supreme Court of the United States

OcTOBER TERM, 1987

Oris R. Bowen, SECRETARY OF HEALTH AND HUMAN SERVICES.

Appellant,

CHAN KENDRICK, et al.,

Appellees.

Oris R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES,

Appellant,

Vv.

CHAN KENDRICK, et al.,

Appellees.

CHAN KENDRICK, et al.,

Cross-Appellants,

Otis R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES

Cross-Appellee.

UNITED FAMILIES OF AMERICA, '

Appellant,

Vv.

CHAN KENDRICK, et al..

Appellees.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAE

NOW Legal Defense and Education Fund,

National Abortion Rights Action League

(List of Amici continued on inside front cover)

IN SUPPORT OF APPELLEES AND CROSS-APPELLANTS

SARAH FE. BURNS

Counsel of Record

SARA L. MANDELBAUM

NIARSHA LEVICK

NOW Legal Detense and Education Fund

99 Hudson Street. 12th Floor

New York, N.Y. 10013

(212) 925-6635

and,

1333 H Street, NW, lth Floor

Washington, D.C. 20005

(202) 682-0940

American Association of University Women,

American Humanist Association,

Americans for Religious Liberty,

Black Women’s Agenda,

B'nai B'rith Women, Inc.,

Center for Law and Social Policy,

Committee to Defend Reproductive Rights,

Equal Rights Advocates,

National Emergency Civil Liberties Committee,

National Organization for Women,

National Women’s Health Network,

National Women’s Political Caucus,

Northwest Women’s Law Center,

United States Student Association,

Voters for Choice,

Women’s Law Project,

Women’s Legal Defense Fund,

Zero Population Growth

TABLE OF CONTENTS

Page

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

INTEREST OF AMICI CURIAE 1

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT

ARGUMENT

I. THAT CURRENT GRANTEES, LIKE GRANTEES 1

EXAMINED AT TRIAL, ARE PROMOTING

RELIGION DEMONSTRATES THE CONSTITU-

TIONAL DEFECT INHERENT IN THE STATUTE.

II. THE AFLA TRAMMELS THE FREE SPEECH 16

AND PRIVACY RIGHTS OF THOSE WHO HAVE

CONTACT WITH THE PROGRAMS.

A. By Its Very Terms, Section 300z-10 17

Requires Viewpoint-based Discrim-

ination In Violation Of the First

Amendment.

1. That the censorship of speech 17

at issue here occurs as a con-

dition on government funding

does not alter its invidious

nature.

2. The AFLA scheme results in gov- 26

ernment-funded misinformation

that is designed to misguide and

intimidate adolescents.

B. The AFLA Unconstitutionally Burdens 35

Young Women's Right of Choice in

Matters of Contraception and

Reproduction.

The AFLA unconstitutionally 36

interferes with informed consent

of program participants.

The AFLA's funding scheme imper- 39

missibly coerces the minor's

reproductive life decisionmaking.

CONCLUSION 63

APPENDICES

A. Letters of Consent to the Filing of the

Brief Amici Curiae

B. Interest of Amici Curiae

Cc. Certificate of Service by Counsel of

Record

D. Index to Lodged Documents

TABLE OF AUTHORITIES

CASES: Page

v. Schempp, 374

U.S. 203 (1963) . «© « «© « «

W s' t v. Ragland, 107

S.Ct. 722 (1987). . .

Bankers Ass'nv. Shultz, 416 U. s. “21 (1974).

Bellotti v. Baird, (Bellotti I) 428 U.S.

132 (1976) he «© © © © @€ © @ e« e

Be t Vv , (Bellotti II) 443 U.S.

~~~". «4 6 « « « « «40, 48, 533

, 631

F.2d 1030 (D.C.Cir 1980). ...

Board of Education, Island Trees Union

Free School District v. PASO, 473

U.S. 853 (1982) .....

Bolger v. Youngs Drug Products Corp. , 436

U.S. 60 (1983) ...... 25, 35, 39

SAXSY Yo SR. 447 U.S. 445 (1980) ..

plation Serv. Int'l, 431 U.S.

a78 (1977) .. 31, 35, 39, 45, 48,

City of Akron v. Akron Center for

Reproductive Health, 462 U.S. 416

(1983)... . « 35-38, 42,

Coates v. Cincinnati, "402 ‘U. S. 611 (1971).

Colautti v. Franklin

, 439 U.S. 379

(1979) o ° e s . . . 29, :

Vv. NAACP _ Le gal Defense

, 473 U.S. 7s

(SPeese cs oe ec te te ew te tlt ew lt

s ction, 368

U.S. 278 (1961) . . «© «© «© «© © « «

Doe v. Bolton, 410 U.S. 179 (1973)...

Eisenstadt v. Baird, 405 U.S.438 (1972)

Engel _v. Vitale, 360 U.S. 421 (1962)

Edison Co. v. Public Serv. Comm'n of New

York, 447 U.S. 530 (1980)

iii

59-61

Everson v. Board of Education, 330 U.S. 1

(1947). o . 8 o . . o 2 . . . . . . . 10

Federal Communications Comm'n v. League

of Women Voters, 468 U.S. 364 (1985)

ee we ce ee ae ee er oe er ee ar a ae ae 25, 32

swo v. Conne cut, 381 U.S. 479

. if asa

Harris v. McRae, 448 U.S. 297 (1980) . .20, 48

H.L. Matheson, 450 U.S. 398

(1980). ee oe «© 0 6 o 068, SS, 3D

Kleindienst v. Mandel, 408 U.S. 753 (1972). 33

Maher v. Ro 432 U.S. 464 (1977) .. 18, 48

Martin v. Struthers, 319 U.S. 141 (1943) . 33

Metromedia, Inc. v. San Diego, 453

UeS. 490 (19G2) « «© «© © © © © © © 8 8 oka

anned Pare ° v. A ona, 718 F.2d

938 (9th Cir. 1983), aff'd in part,

rev'd in part after remand, 789 F.2d

1348 (9th Cir.), aff'd mem. sub nom.

abbitt v nned enthood, 107

S.Ct. 391 Sit a oe 6 @¢ © ee 6 le 8688

anne arentho anfort 428 U.S

S2 (1976) ..« ° 7 «© « «38-9, 48, 61

Planned Parenthood Vv. ‘Kempiners, 531

F. Supp. 320, 332 (N.D. Ill. 1981),

vacated and remanded on other

grounds, 700 F.2d 1115 (7th Cir.),

: mn remand, 568 F. Supp. 1490

eo .¢¢ 8 6 8 ¢ 6 eee © & ele

Police 't of Chicago v. Mos , 408

7 92 (1972) e « saa

Regan v. Taxation With “Re presentation,

8k eS fF ee eee

Roe v. Wade, 410 U.S. 113

(1973) e o o . . . 7 = Ve 31, 35, 60, 61

Scnneider v. State, 308 U.S. 147 (1939). . .61l

\ 3 Vv eo a, 394 U.S. 557 (1969). . 33

Thornbu Mxan_¥ - ACOG, 106 S.Ct. 2169 (1986)

° . e. . . . . . . . . 33. 38, 45, 62

Thornhill v. Alabama, 310 U.S. 88 (1940) . 34

Time, Inc. v. Hill, 385 U.S. 374 (1967). . 34

Valley Family Planning v. North Dakota,

489 F. Supp. 238 (D.N.D. 1980),

aff'd on other grounds, 661 F.2d 99

(8th cir. 1981) 7 > . oO *. . _ « . . . 34

Virginia Pharmacy Board v. Virginia

Consumer Council, 425 U.S. 748

(1976) . . — —_ > e . . > > >. a. .* . . oan

CONSTITUTIONS

U.S. Const. amend. I....... . 17 passim

U.S. Const. amend. V....... . 35 passim

STATUTES

Adolescent Family Life Act ["AFLA"}, 42

U.S.C. Secs. 3002-300z2-10 (1981). .passim

CONGRESSIONAL MATERIAL

nanc

An Ov

Resources, 98th Cong., 2nd _ Sess.

Conside Lo e authori ion o

Title X of the Public Health Service

Act, the Population Research and

Vo ° ams:

Hearings Before the Senate Sub-

2nd Sess. (1984) . . . . . . . . . . . 27

Examination on the Role of the Federal

Government in Birth Control,

ortion Refe e ion

: earings ore enate

Committee on Labor and Human

Resources, 97th Cong., lst

Sees. (1981). .«-s«-e«eee ec eee «e

S. Rep. No. 161, 97th Cong., lst

Sess. (1981). . « «© «© © «© «© © «© «© 04,

OTHER MATERIALS

Adler, Sex Roles and Unwanted Pregnancy

scent and Adu Women, 12

Professional Psychology 63 (1981)

Education Research Group, Teen Pregnancy:

Impact on the Schools (R. Weiner,

ed. 1987) e > . . . > . > oO . . 7 . .

Hofferth, The Effects of Program and

olicies o doles ancy and

, reprinted in 2 Risking

the Future: Adolescent Sexuality,

Pregnancy, and Childbearing 225

(Hofferth & Hayes, eds. 1987)

Lebold, Grimes and Cates, Mortality From

Abortion and Childbirth: Are the

Populations Com mparablal 248 J.A.M.A.

188 (1982)...

Morgan, tate V tions in een

, 2 Population Research and

Policy Review 72 (1983)

Pope Paul VI, Humanae Vitae (July 25,

1968) as published in The Papal

Encyclicals 1958-1981

~55

- 50

~31

Tauer, °

America 276 (June 1983)

Teen Pregnancy:

Impact on the Schools; A

Special Report from the Education

Research Group, 50

1987)

vii

(R.

sion

Adoles-

Making in Sexually Active Adoles~

cents, 18 Nursing Clinics of North

. 51-3,

Weiner,

ed.

55-56

INTEREST OF AMICI CURIAE

The interest of the amici curiae are set

forth in Appendix B attached to this brief.!

Amici curiae are deeply concerned about the

governmental promotion of religion and by the

discrimination among religions built into the

federal Adolescent Family Life Act. Amici are

also concerned that the AFLA restricts and

coerces women in their reproductive deci-

sionmaking by silencing educational and health

care professionals who would otherwise provide

young women and their parents with full and

accurate information about women's options

with respect to contraception and abortion.

This restriction and coercion affects poor

1 The interests of each amicus curiae

are set forth in detail in Appendix B. In

accordance with Rule 36.2 of the Rules of this

Court, amici file this brief with the consent

of all parties. Letters of consent, fac-

similes of which appear in Appendix A, are

being filed with the Clerk of the Court.

women particularly harshly.

STATEMENT OF THE CASE

Amici curiae adopt the Statement of the

Case as set forth by the appellees and cross-

appellants Kendrick, et al., in whose support

amici file.

SUMMARY OF ARGUMENT

The issue before the Court is whether the

Adolescent Family Life Act ("AFLA"), designed

to involve religious groups, community groups,

and families in teaching and _ counseling

programs to curb sexual activity and pregnancy

among adolescents, can pursue these goals by

forbidding funded groups to provide, directly

or indirectly, abortion counseling or referral

without establishing religion. Amici curiae

Support and adopt the arguments set forth by

appellees and cross-appellants Kendrick et

al., urging affirmance of the district court's

finding that the AFLA is unconstitut: nal on

establishment clause grounds, and seek to

highlight that the AFLA grantees' provision of

"prevention" and "care" services has involved

and continues to involve’? religiously-guided

teaching and inculcation of religious doc-

trine.

Amici curiae also urge affirmance on

alternative grounds, see Bankers Ass'n v.

Shultz, 416 U.S. 21 (1974), free speech and

due process, because the AFLA is designed to

steer adolescent participants as they exercise

their fundamental rights in reproductive

decisionmaking by silencing "prevention" and

"care" service providers and censoring the

information with which adolescent participants

make decisions. Accordingly, amici urge this

2 Amici curiae have lodged with this

Court ten (10) copies of published documents

obtained from current AFLA grantees together

with affidavits authenticating the sources of

the documents. Those documents are referred

to herein as L.D. ("Lodged Documents")

followed by the appropriate pace number as

they appear in the lodged document.

Court to strike down the statute as a whole,

not just sever the portions of the AFLA

involving religious groups.

ARGUMENT

The central issue before the Court is

whether government funding of religious

organizations to disseminate information

inspired by religious doctrine is unconstitu-

tional.® The information delivered through

the program concerns a topic that all parties

to and participants in this case agree is of

great public importance -- the sexual activity

and reproductive decisionmaking of adoles-

’ Ancillary to, but part of, that issue

is the impossibility of severing the language

which unconstitutionally affiliates government

with religious organizations from the remain-

der of the statute, since the entire statute

was conceived and executed expressly to teach

morals and vaiues. See Brief of Appellees and

Cross-Appellants Kendrick et al. For a full

discussion of the establishment clause case

law and issues implicated in this case, amici

curiae refer this Court to the Brief of

Appellees and Cross-Appellants Kendrick et al.

cents. The information provided through the

Adolescent Family Life Act, 42 U.S.C. Sec.

300z et seq., is intended to and very likely

does form an important basis for the major

reproductive and life decisions of its teenage

program participants. The statute, however,

expressly precludes the funding of any speech

in the nature of abortion counseling, or

referral,‘ and requires funded speech, among

other things, to discourage use of

contraception and to encourage adoption over

other responses to teen pregnancy. The result

is a silencing of a rortion-related speech by

any AFLA service provider, even with respect

to activities not funded by the AFLA, and the

provision of distorted, inaccurate and un-

4 Specifically, the statute restricts

funding as follows: "[glr .ts or payments may

be made only to programs ‘-cojects which do

not provide abortions or aportion counseling

or r ferral, or which do not subcontract with

or make any payment to any person who provides

abortion or abortion counseling or referral."

42 U.S.C. Sec. 3002-10a.

balanced "information" to young women and

their parents. This statutorily mandated

omission of information amounts to misin-

formation, and distorts the ability of young

women to make critical reproductive life

decisions in consultation with their physi-

cians and parents. Thus, the statute impinges

upon the constitutional rights of free speech,

thought and privacy of the program's potential

service providers and adolescent participants.

I. THAT CURRENT GRANTEES, LIKE GRANTEES

EXAMINED AT TRIAL, ARE PROMOTING

RELIGION DEMONSTRATES THE CONSTITU-

TIONAL DEFECT INHERENT IN THE

STATUTE.

In certain kinds of government programs,

it is possible for religiously-affiliated

groups to provide purely secular. services

without the unconstitutional promotion of

religious doctrine; in such circumstances

religious organizations should stand on an

equal footing with secular service providers

having no religious connections. The AFLA is

not such an endeavor. The AFLA, by its very

terms, requires the government to place its

seal upon particular religious doctrines.

The record starkly demonstrates that the

speech of religious organizations involved in

the initial AFLA demonstration program is

inspired by religious doctrine. By requiring

involvement of religious organizations but

precluding abortion counseling or referral by

grantee service providers, directly or in-

directly, the AFLA selects those religions

which forbid even the contemplation of

abortion.® For such religions, abortion is

5 While the religions funded under the

AFLA teach that full personhood exists from

the moment of conception and develop their

teachings on that doctrine, this Court has

appropriately held that government may not

advocate one theory of when life begins. Roe

v. Wade, 410 U.S. 113, 159-62 (1973). Nor may

the state constitutionally assert an interest

that grants the fetus a status equivalent to

that of the woman. By selectively funding

organizations which adhere to the conviction

that developing embryos should have the same

legal protections as born persons, the federal

never discussed in any positive or even

neutral terms in either the devotional or the

service context. It is no accident then that,

as the record shows, AFLA funding has flowed

to select religious groups -- Catholic,

Mormon, Fundamentalist -- but not others. The

result is governmentally funded, doctrinally

approved coercion of young women.

For example, the employees of Catholic

grantees are bound by Church doctrine that

periodic sexual abstinence in marriage is

virtuous, and that extramarital sex, con-

government has done indirectly that which it

is prohibited from doing directly: it has

placed its "power, prestige and financial

support," see Engel v. Vitale, 370 U.S. 421,

431 (1962), behind a particular theory of

human existence. The government's direct

Support of this religious belief is not merely

incidental to its adoption of a secular

policy; rather, the federal government has

chosen to fund certain religious groups

specificaliy because of their anti-abortion

beliefs, and not merely in s~ite of them. See

Sec. 300z(10) (a). oa

traceptives and abortion are evil.® The

Catholic ideal is that a woman has a duty to

sacrifice her interests for those of an embryo

or fetus.’ Similarly, "({flor the fundamen-

talist, God is the cause and power of all that

is and God governs all natural processes.

Therefore, not only is the conceptus regarded

as of equal value and personhood with the

woman, but conception is viewed as_ the

consequence of an Act of God." J.A. 594

(Simmons Affirmation). A woman then is not

seen as a participant in her fate, but rather |

as the passive vehicle through which the

6 Pope Paul VI, Humanae Vitae 225-27,

229, 231 (July 25, 1968) (encyclical on the

regulation of birth), as published in The

Papal Encyclicals 1958-1981 (C. Carlen Ihm ed.

1981); Ethical and Religious Directives for

ties, J.A. 550. (Appen-

dix A to Sichagher Affirmation).

7 One study guide for a film used in an

AFLA Catholic Family Services program stated:

"The unwed mother is a person in need and

calls us to be compassionate, as Christ was.

She is also a sign of hope, witnessing to the

fact that the life of her child is worth

personal sacrifice." J.A. 559.

divine will is manifested. The issue is not,

of course, the validity of these religious

views, which this Court is not permitted to

determine.* The point is, however, that the

government may not constitutionally enforce

these views on women.

Although many of the AFLA-sponsored

seminars and counseling sessions explicitly

refer to "God," religious doctrines and

® Amici curiae certainly do not argue

that, when unaided by government funding, such

groups may not advocate their religious views.

These and all other religious organizations

are entitled not only to hold freely their

beliefs, but to have those beliefs respected

by all instruments of goverrment. Indeed,

historically, the first amendment protected

from government intrusion and coercion those

very religious groups now being funded. The

establishment clause “embodie[s] the Framers'

conclusion that government and religion have

discrete interests which are mutually best

served when each avoids too close a proximity

to the other." Abington School District v.

Schempp, 374 U.S 203, 259 (1963). See also

Everson v. Board of Educ., 330 U.S 1, 15-16

(1947).

7?)

religious affiliations,® they need not mention

religious words like "God" or "sin" to convey

9 See, e.g., L.D. 67 (Current AFLA

grantee, Pregnancy Helpline, provides clients

with a brochure called "The Life Rosary,"

which states: "Mary and Joseph were distressed

to have lost Jesus in the temple. Many who

come to us are distressed because they have

lost or never found Christ. May each young

woman who comes to us find Him through our

counseling, help, and prayers."); L.D. 14

(Current AFLA grantee Christian Family Care

Agency calls on young pregnant AFLA program

participants to "[p]Jray with us for: God's

will for your family with regard to the child

He has for you; Wisdom for our staff as we

serve the children and families God sends

us."); L.D. 57 (Current AFLA grantee, The

Pregnancy Distress Center, instructs its

counselors -to "share God's plan for sex in

marriage .. ." with its clients); L. D. 72

(Current AFLA grantee, A Woman's Choice,

recommending that "[{w]jhen a person who is

tempting comes around, start talking about

Jesus Christ"); J.A. 36-37 (St. Ann's Infant

and Maternity Home's-= manual instructing

parents that "Sexuality is one of God's

greatest gifts" and urging them "to find peace

and strength in a full sacramental life with

the Christ who loves them"); J.A. 551 (St.

Margaret's employee handbook stating that it

is a "Christian institution," providing

medical care “in harmony with the teaching of

the Catholic Church," and that each person is

"a child of God [from] the very moment of

conception").

religious ideology.!° For example, current

AFLA grantee, the Pregnancy Distress Center of

Columbus, Ohio, features a "Psychological

Profile of Women Seeking An Abortion." For

the "neurotic," the Center encourages coun-

selors to "stress fetal development and prayer

assignment." For the woman with a "character

disorder," the Center claims that "these

disorders are a result of repeated broken

relationships ... Use any argument you can--

don't worry about causing quilt feelings--

you won't." L.D. 56. (emphasis added).

Perhaps the worst establishment clause

violation occurs when the young person and his

10 See, e.g., J.A. 572 (the obje

of AFLA-funded "Here's uses eens

program are "(to promote a lifestyle based on

Biblical principles" through "/[i]ndividual

counseling based on Scriptural principles") ;

J.A. 284 (Deposition of John D. Hartum)

(stating that he "based [the AFLA-funded

program) all on Jesus Christ" because "That's

the way I do things ..."); J.A. 390 (Christian

Sexuality Program “whose goal is to develop

and disseminate an educational program based

on the teachings of the Catholic Church").

or her parents hear government-funded "teach-

ing" or “medical advice" that includes these

the same religious messages but fails to

acknowledge that the teaching emanated from

and may be distorted by the views of a

religious source. See pp. 30-31 infra (re-

counting information provided by St. Mar-

garet's and Families of the Americas Founda-

tion).

The examples of religious indoctrination

shown in the record are not just a few

"abuses" in the early stages of the program's

implementation as the appellant would have

this Court believe. See Brief of Appellant

Bowen, at 36 n.30 & 4l. This

is made clear by the conduct of current AFLA

grantees.'! For example, on a recent visit to

ut See generally the lodged documents

referred to in note 2 supra. The appellant

argues that religiously affiliated grantees do

not promote religion by complying with the

AFLA's abortion restrictions because "the

statute itself imposes the same restriction on

the funded programs." Brief of Appellant

the Pregnancy Distress Center of Columbus,

Ohio, one woman was told by the counselor to

open her heart to God referred to a local

church for more counseling. L.D. 28. In

fact, the Pregnancy Distress Center of

Columbus, Ohio, which recently received

$119,135 in AFLA funds,’ states in its

counseling manual: "When counseling girls and

women considering an abortion, sometimes we

have the opportunity to share our faith with

them and urge them to let God be a part of

Bowen, at 33. First, this argument falsely

assumes that the "secular" nature of the

funded activity is severable from the reli-

gious convictions of those providing the

services, and thus assumes that the abortion

restriction is not on its face tantamount to

promotion of certain religious tenets.

Secondly, it ignores the fact that through the

AFLA, religious organizations have been and

continue to be granted an open license to

provide services and counseling in furtherance

of their religious missions. The documents

lodged with this Court herewith illustrate

this point.

2 LL.D. 109-10 (list of current grantees

and amounts awarded, as announced by the U.S.

Department of Health and Human Services on

November 5, 1987).

this important decision." See L.D. 55. The

manual continues by suggesting that counselors

suggest to clients: "If Jesus were sitting

right here, would He tell you that it's

alright to have an abortion?" Id. Clearly,

the AFLA's problem of religious establishment

has not been cured.

That not all AFLA grantees are religious

organizations does not save the program; the

statute was intended to and does encourage all

grantees to talk about moral values. This has

resulted in a particularly pernicious version

of government involvement in religion in the

case of at least one current AFLA grantee. As

one affiant described a visit to receive

pregnancy counseling at "A Woman's Choice" in

Vienna, Virginia, the counselor ascertained

the counselee's religion (Jewish) and pro-

ceeded to read her an articie by a rabbi.

While the article did not say that the Jewish

faith disapproved of abortion, the counselor

implied that it did and used other religious

references and terminology to pressure the

counselee not to terminate the precnancy.

L.D. 69. There was no indication that "A

Woman's Choice" had any affiliation with the

Jewish faith. The strategy of this AFLA

grantee was fully consistent with the AFLA's

design and purpose. The misrepresentation of

religious tenets and exploitation of the

counselee's faith to serve the AFLA's end

demonstrates dramatically the damage that the

AFLA has done and will do if it is permitted

to stand.

II. THE AFLA TRAMMELS THE FREE SPEECH

AND PRIVACY RIGHTS OF THOSE HAVING

CONTACT WITH THE PROGRAMS.

The AFLA was designed to alter the terms

of the public discourse on the issues of

adolescent sexual activity, reproductive

health, contraception and abortion. It is

intended to bring about a change in the

behavior of young people by silencing the

educators, counselors, community leaders, and

medical professionals wro are willing openly

and accurately to discuss adolescent sexuality

and reproductive health, including contra-

ception and abortion, and by amplifying with

government funding the voices of those who

promise not to discuss these critical issues.

A. By Its Very Terms, Section 3002-19

Requires Viewpoint-based Dis-

crimination in Violation of the

First Amendment.

1. That the censorship of

speech at issue here occurs

as a condition on government

funding does not aiter its

invidious nature.

The AFLA requires the withholding of

information critical to reproductive choice

and encourages the spreading of misinformation

in the guise of providing education and health

care. By its very terms, then, Section 300z-

10 requires viewpoint-based discrimination in

violation of the first amendment: it pro-

hibits AFLA-funded facilities, their pro-

fessional personnel, and their subcontractors

from engaging in activity which advocates, en-

courages or promotes abortion. !* Although

13 U.S. Const. amend. I.

44 The AFLA does not prohibit speech

which discusses abortion in a pejorative

light. Indeed it was understood by one key

AFLA administrator that talking about abortion

as "killing" was "probably all right." J.A.

93 (Deposition of Sheeran, Director, Division

of Program Development and Monitoring, HHS

Office of Adolescent Pregnancy

Programs) (referencing the AFLA's requirements

and how to monitor them). In addition to

being viewpoint-based, Section 300z-lv's

requirement that AFLA grantees avoid all

conduct which may "in any way have the effect

of facilitating obtaining an abortion" is

unconstitutionally vague. When a statute is

so vague as to "“operate{[] to inhibit the

exercise of individual freedoms affirmatively

protected by the Constitution," it is invalid.

Cramp v. Board of Public Instruction, 368 U.S.

278, 288 (1961). Section 300z-10, like the

ordinance struck down in Coates v. Cincinnati,

402 U.S. 611 (1971), is unconstitutionally

vague because it ". . . subjects the exercise

OF . « « faj right to an unaescertainable

standard, and unconstitutionally broad because

it [penalizes] . . . constitutionally pro-

tected conduct." Id. at 614.

There is no limit to the type of activity

which could fall within the scope of Section

there is no constitutional requirement that

Congress create or subsidize programs such as

the AFLA program, "the manner in which [FHS]

dispenses benefits [pursua..t to such programs]

is subject to constitutional limitation."

Maher v. Roe, 432 U.S. 464, 469-70 (1977).

Having undertaken to create a program designed

to discourage adolescent sexual activity

through sex education and counseling, neither

Congress nor HHS can "discriminate invidiously

in their subsidies in such a way as to ‘ai[m]

at the suppression of [what are seen as]

dangerous ideas.'" Regan v. Taxation With

Representation, 461 U.S. 540, 548 (1983).%

300z-10. The presence in a-clinic waiting

room of a newspaper containing an abortion

clinic advertisement or a Yellow Pages

containing such advertisements might be deemed

to violate this regulation.

15 See also Cornelius v. NAACP Legal

Defense & Educ. Fund Inc., 473 U.S. 778, 811-

12 (1985) (exclusion from government benefit

that is in fact based on the desire to

suppress a particular point of view with which

government disagrees is unconstitutional); Big

Mama Raq Inc. v. United States, 631 F.2d 1030,

The AFLA does just this in a very cunning

way by conditioning government funding on a

pledge of silence on the subject of abortion

as a medical and personal option.’ A

recipient of AFLA funds is precluded from

abortion counseling or referral even where

such speech is subsidized by non-AFLA funds.

The statute requires further that grantees not

subcontract with any organizations that refuse

to accede to the AFLA's speech restrictions.?’

1034 (D.C. Cir. 1980) ("although first

amendment activities need not be subsidized by

the state, the discriminatory denial of [dis-

cretionary benefits] can impermissibly

infringe free speech"). The case of Harris v.

McRae, 448 U.S. 297 (1980), is not to the

contrary. Unlike the right to obtain an

abortion at government expense, freedom of

expression untrammeled by government censor-

ship in any of its forms has been accorded the

highest level of constitutional protection.

Carey v. Brown, 447 U.S 445 (1980).

16 This pledge has of course been an

assymetrical one, however, as the DHHS has not

interpreted the statute as forbidding speech

which condemns abortion. See note 14 supra.

17 "Grants may be made only to

programs which do not provide ;

abortion counseling or referral, or which do

In addition, the requirement that grantees

"coordinate, integrate, and provide linkages

among providers of care, prevention, and other

services for eligible persons," Sec. 300z-

3(a)(2),'* imposes speech restrictions on

community service providers who, and infor-

mation resources that, are drawn into coopera-

tion with the AFLA prcject. The government's

AFLA grants then, do not merely add certain

approved messages to an already busy market-

place of ideas; they co-opt and then

appropriate the entire marketplace.

In the low-income communities with high

not subcontract with or make any payment to

any person who provides . . . abortion coun-

seling or referral." Sec. 300z-+10(a) (emphasis

added).

is ", . . the purposes of this sub-

chapter are. . to establish innovative,

comprehensive, and integrated approaches to

the delivery of care services for pregnant

adolescents .. . which shall be based upon an

assessment of existing programs and, where

appropriate, upon efforts to establish better

coordination, integration, and linkages among

such existing programs . " 42 U.S.C.

Sec. 300z(b) (3) (emphasis added).

adolescent pregnancy rates that are the

explicit targets of the government's "chas-

tity-reinforcement" campaign,’ the AFLA's

restrictions on disfavored information have a

particularly insidious effect. The young

people and their parents who will be AFLA

program participants in these disadvantaged

areas have meager educational and health care

resources at their disposal”® and their needs

‘9 “In approving applications for grants

: + the Secretary shall give priority to

applicants who -- (1) serve an area where

there is a high incidence of adolescent

pregnancy; (2) serve an area with a high

proportion of low-income families and where

the availability of programs of care... is

low; (3) show . the ability to bring

together a wide range of needed .. . ser-

vices[,] | a well-integrated network of

such services .. . [or] will utilize to the

maximum extent feasible existing available

programs and facilities such as neighborhood

and primary health care centers, ...

agencies serving families, youth, and children

: [and] maternal and infant health

=a ~- « «" 42 U.S.C. Sec. 3002--4(a) (1)-

270 As nurse Kim Maisenbacher of St.

Margaret's hospital explained, "I believed

that my teenage patients could get abortion or

contraception information from outside

leave them that much more vulnerable to

government-sponsored efforts to steer their

behavior. The greater the impoverishment of

the community, the more powerful the induce-

ment to relinquish first amendment integ-

rity.74. By co-opting community networks and

community resources. Subsequently, I found

out this was practically impossible. Many of

the teenage TAPP patients are poor, and nearly

all are ignorant on how to make use of

community resources." J.A. 551 (Maisenbacher

Affirmation).

21 Although such intent does not appear

explicitly on the face of the statute, the

Committee Report documents the unqualified

intentions of the AFLA's proponents that a

mechanism should be created through which the

speech restrictions can be imposed upon all

public benefit programs which the federal

government funds, subsidizes, or cooperates

with: .

The DHHS has been given the author-

ity under the act to review all

programs which provide prevention

. + for pregnant adolescents

[T]he Secretary should examine other

programs to determine the degree of

duplication and philosophical

consistency existing in current

Federal programs including family

planning, welfare and health

maintenance programs. To the

greatest extent possible there

local service providers, the federally funded

AFLA programs -- instead of fostering family

and community structures -- may bring about

even further erosion of those very institut-

ions.

The government may not, as Congress has

done with the AFLA, deny government funding on

the ground that a grant applicant has engaged

in constitutionally protected activity with

sources of funds independent of the government

program at issue. In Planned Parenthood v.

Arizona, 718 F.2d 938 (9th Cir. 1983), aff'd

in part rev'd in part after remand, 789 F.2d

1348 (9th Cir.), aff'd mem. sub nom. Babbitt

v. Planned Parenthood, 107 S. Ct. 391 (1986),

for example, this Court summarily affirmed a

holding that Arizona may not deny grants to

should be consistency in the

approaches utilized in new and

existing programs that deal with the

problems of adolescent sexual

activity and preonancy.

S. Rep. No. 161, 97th Cong., 1st Sess. 16

(1981) (emphasis added).

Planned Parenthood so as to "unreasonably

interfere with the right of Planned Parenthood

to engage in abortion or abortion-related

speech activities" funded by independent

sources. Id. at 944.

Similarly, in Federal Communications

Comm'n v. League of Women Voters, 468 U.S. 364

(1985), the Court invalidated a government ban

on editorializing by radio stations receiving

federal grants, in part because the ban would

have prohibited a station "from using even

wholly private funds to finance editorial

activity." Id. at 400. "Where . . . a

speaker desires to convey truthful information

relevant to important social issues such as

family planning and the prevention of venereal

disease . . . the first amendment interest

served by such speech [is] paramount." Bolge

v. Youngs Drug Products Corp., 436 U.S. 60, 69

(1983). The government may not use its

pregnancy prevention program to silence grant

applicants who, while working to further the

purpose of the Act, also wish to disseminate

information about contraception and abortion,

particularly when this activity is supported

by non-AFLA funds.

2. The AFLA scheme results in

government-funded misin-

formation that is designed

to misguide and intimidate

adolescents.

The AFLA requires that grantees, systema-

tically and without notice to program par-

ticipants, withhold information about contra-

ceptives and abortion.”? The record is clear

22 Former Senator Jeremiah Denton,

originator and key proponent of the AFLA,

faulted prior federal family planning programs

on the theory that exposure to accurate

medical information regarding abortion and

birth control causes increased sexual activity

among young men and women. Senator Denton and

the bill's co-sponsors presented the AFLA as

an alternative to programs funded under Title

X of the Public Health Service Act of 1984.

They explained that the AFLA demonstration

projects were explicitly designed to curb teen

access to such information, while simul-

taneously enlisting religious groups in a

state-sponsored effort to urge upon young

adults those "moral values" of which Senator

Denton and the other sponsors approved. See

that the AFLA has effectively silenced speech

essential to reproductive decisionmaking. It

has preempted the provision of accurate

medical information to health care recipients

by physicians, nurses, social workers and

educators, rendering them mere agents of

state-funded and religious ideology --

ideology which is, moreover, frequently at

odds with sound medical practice. Dr. Louis

Laz, an obstetrician-gynecologist at AFLA

grantee St. Margaret's, described the frequent

conflicts he faced between standard ethical

S. Rep. No. 161, 97th Cong., lst Sess. (July

21, 1981). See also Examination of the Role

of the Federal Government in Birth Control,

Abortion Referral, and Sex Education Programs:

Hea s e) t enate Comm. on Labor an

Human Resources, 97th Cong., lst Sess. 3 (Mar.

31, 1981); An Overview of the Adolescent

Pregnancy Problem: Hearings Before the

Subcomm. on Family and Human Services of the

Senate Comm. on Labor and Human Resources,

98th Cong., 2nd Sess. 171 (Apr. 24 and 26,

1984); Consideration of the Reauthorization of

Title xX of the Public Health Service Act:

Hearings Before the Subcomm. on Family and

Human Services of the Senate Comm. on Labor

and Human Resources 98th Cong., 2nd Sess.

270, 292 (Apr. 5 and May 1, 1984).

medical practice and the directives of the

Catholic hospital:

The religious directives forbid

doctors at St. Margaret's from

performing, prescribing, recom-

mending or even’ referring for

sterilization, abortion, or con-

traception even though these options

are critical for the vast majority

of obstetrical or necological

EE aa The fetus or

embryo is treated as a_ separate

human patient whose treatment often

imperils women's health and lives

Teenagers are not informed

that an abortion is many times safer

for them, in terms of risks to their

lives, than continued pregnancy and

childbirth. Women who have added

childbirth risks imposed by cancer,

heart problems, extreme obesity,

lupus, diabetes, sickle cell

disease, mental conditions, hyper-

tension, to name a few, are never

informed about abortion which might

be medically indicate

J.A. 527-28 (Laz Affirmation) (emphasis

added).** Dr. Laz further enumerated several

. = The absolute ban on abortion counsel-

ing 1s contrary to the most basic standards of

medical ethics which require that doctors

discuss with their patients all available

medical options and provide all information

pertinent to the patient's exercise of

informed consent. The total censorship of

information about abortion, combined with

examples of distorted information provided by

the hospital:

The curriculum also lists complica-

tions and side-effects of the

diaphragm, including toxic’. shock,

which has never been proven. There

is no association between

spermicides, which are used in

conjunction with the diaphragm, and

the future development ot congenital

abnormalities . .. . The cur-

riculum is very misleading in that

it does not discuss any of the

benefits of contraceptives except

the benefits of natural family

planning, for wnich no side effects

are shown, even though natural

family planning is a method that

must be used in conjunction with a

regular partner, and has never been

used successfully with teenagers.

subsequent pressure to surrender the infant,

will coerce choice and subject women to

increased medical and psychological risk. See

Brief Amici Curiae of the American Public

Health Assoc., et al., in Support of Appel-

lees, Point I. See Colautti v. Franklin, 439

U.S. 379 (1979) (standard of care provision

requiring physician to employ abortion tech-

nique which would most likely result in live

fetus struck down as unconstitutionally vague

and unduly restrictive of physician's exercise

of discretion); Doe v. Bolton, 410 U.S. 179,

192 (1973)(Physician's discretion should be

“exercised in the light of all factors --

physical, emotional, psychological, familial,

and the woman's age -- relevant to the well-

being of the patient.")

Id. at 534-35. Materials used by the Families

of the Americas Foundation in its AFLA-funded

"Adolescent Sexuality Program" define abortion

as “[(t)jhe premeditated killing of an unborn

baby in the mother's womb during the period of

gestation by artificially inducing the

expulsion of the baby so that it does not

Survive." J.A. 587. In an obvious attempt to

intimidate young women, the Foundation

furnishes them with a highly misleading list

of possible "immediate complications" of early

abortions, including

laceration of cervix, hemorrhage,

perforated uterus, laceration of

urinary bladder and ureters, air

emholisn, laceration of bowel,

shock, transfusion reactions,

laparotomy, hysterectomy, retained

tissue, death, cardiac arrest,

bronchial obstruction, and anaphy-

lactic shock.

Id. at 587-88. The materials continue with a

lengthy list of "Immediate Complications" for

late abortions, both saline and hysterotony,

as well as "Delayed Complications" and

"Effects on Later Pregnancy." Id. at 588-89.

The materials do not acknowledge that the

likelihood of any such complications is minu-

scule;*4 nor do they list the risks attendant

upon childbirth or the greater likelihood that

ciildbearing may cause women, especially

adolescent women, permanent health damage.”

The harm of this misinformation is obvious

when assessed in light of the limited access

to information in this area, see text and

notes pp. 26-30 supra, pp. 39-40 infra, espec-

ially for adolescents, see text and notes

p. 44 infra.

As one court addressing this very issue

24 See Roe v. Wade, 410 U.S. 113, 149

(1973) (the Court took judicial notice of the

relative safety of first trimester abortions

compared with the statistical health risks of

continued pregnancy and childbirth). See also

Lebold, Grimes and Cates, Mortality From

Abortion and Childbirth: Are the Populations

Comparable? 248 J.A.M.A. 188, 191 (1982).

2 See generally Brief Amici Curiae of

American Public Health Assoc. et al., at Point

I. B. for a discussion of the medical assess-

ment of risks.

stated, the Constitution "does not permit the

state to attempt to persuade women to decide

not to terminate their pregnancies by keeping

them in ignorance." Planned Parenthood v.

Kempiners, 531 F. Supp. 320, 332 (N.D. Ill.

1981), vacated and remanded on other grounds,

700 F.2d 1115 (7th Cir.), aff'd on remand, 568

F. Supp. 1490 (1983). Where, as here, the

regulated speech concerns a controversial but

protected activity the government's authority

to interfere through state-approved ignorance

or misinformation is particularly limited.

See Carey v. Population Serv. Int'l, 431 U.S.

678, 700 (1977) .%

76 This Court has held that ". . . above

all else, the first amendment means that

government has no power to restrict expression

because of its message, its ideas, its subject

matter, or its content." Police Dep't of

Chicago v. Mosley, 408 U.S. 92, 95 (1972),

quoted in Arkansas Writers' Project v.

Ragland, 107 S.Ct. 722, 727 (1987). The

government cannot, therefore, discriminate

between viewpoints or ideas, nor can it

prohibit discussion of an entire topic.

Edison Co. v. Pub. Serv. Comm'n of New York,

447 U.S. 530, 537 (1980). See Arkansas

‘The importance of the right to receive

ideas?” was emphasized in the Supreme Court's

decision invalidating the removal of certain

library books by public school officials.

Board o ducation sland rees Union ree

School District v. Pico, 473 U.S. 853 (1982).

The Court noted that the right to receive

information is a necessary corollary to the

writer's right to speak. Id. Here, a govern-

Writers' Project, 107 S.Ct. at 727; Federal

Communications Comm'n v. League of Women

Voters, 468 U.S. 364, 384 (1985); Metromedia

Inc. v. San Diego, 453 U.S. 490, 518-19 (1981)

(plurality opinion). "(Tjhe state may not,

consistently with the spirit of the First

Amendment, contract the spectrum of available

(medical] knowledge." Griswold v. Connect-

icut, 381 U.S. 479, 482-83 (1965).

Regardless of its motive, the government

may not choose to further even a -legitimate

governmental interest "by keeping the public

in ignorance of . . . entirely lawful,"

medical options, such as contraception and

abortion. Virginia Pharmacy Board v. Virginia

Consumer Council, 425 U.S. 748, 770 (1976).

27 The right to receive information and

ideas uncensored by the government has long

been. acknowledged by this Court. See Klein-

dienst v. Mandel, 408 U.S. 753 (1972); Stanley

v. Georgia, 394 U.S. 557 (1969); Martin v.

Struthers, 319 U.S. 141 (1943). .

ment gag-order** prevents young women and

their parents from speaking candidly with

educators, counselors, and health practition-

ers, in order to pursue intelligently a course

of action with regard to the young woman's

sexual activity, reproductive health, and life

decisions.’ This is most harmful to the

young adults whose decision when and whether

or not to bear a child is one of the most

28 See also Valley Family Planning v.

North Dakota, 489 F. Supp. 238, 242 (D.N.D.

1980), aff'd on other grounds, 661 F.2d 99

(8th Cir. 1981). (Citing Carey v. Population

Serv. Int'i, 431 U.S. at 700 (state may not

completely suppress dissemination of .. .

truthful information about entirely lawful

activity," quoting Virginia Pha

425 U.S. 748 at 773).

29 This thwarts the efforts of those

attempting to form beliefs about issues which

are often debated in the public arena. eC.

Time, Inc. v. Hill, 385 U.S. 374, 388

(1967) (noting protected status of information

needed or appropriate for coping with the

exigencies of the period); Thornhill v.

Alabama, 310 U.S. 88, 102 (1940).

important decisions they may make.*°

B. The AFLA Unconstitutionally Burdens

Young Women's Right of Choice in

Matters of Contraception and

Reproduction.

The government- funded AFLA program

interferes with the fundamental right iden-

tified in Roe v. Wade, 410 U.S. 113 (1973), of

a woman to choose whether or not to terminate

her pregnancy, as well as the correlative

right of access to information about con-

traceptives recognized in Carey v. Population

Serv. Int'l, 431 U.S. 678 (1977). U.S. Const.

amend. V. This interference is further

reinforced by the government's decision to

enlist, in pursuit of its purpose, the aid of

$0 See Thornburgh v. ACOG, 106 S. Ct.

2169, 2185 (1986) ("Few decisions are more

personal and intimate, more properly private,

or more basic to individual dignity and

autonomy") Bolger v. Youngs Drugs Products

Corp., 463 U.S. 60, 74 n.30 (1983). (“The

right to privacy in matters affecting procrea-

tion also applies to minors... . [and] it

cannot go without notice that adolescent

children apparently have a pressing need for

information about contraception.")

religious organizations that oppose abortion.

42 U.S.C. Sec. 300Z-10(a).

1. The AFLA Unconstitutionally Inter-

feres With Informed Consent of

Program Participants.

Insofar as the AFLA prescribes a unitary

and authoritarian "solution" for all pregnant

young women -- that of carrying an embryo to

term -- and proscribes the free flow of

information about alternative options from

medical personnel, it impermissibly usurps the

counseling role of the physician, and places a

profoundly "chilling effect on the exercise of

a constitutional right." Colaut Vv. nk-

lin, 439 U.S. 379, 394 (1979). See also City

of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 472 n.16 (1983) (O'Con-

nor, J., dissenting) (noting that certain

"informed consent" provisions which

effectively require a physician to parrot

state ideology may constitute a first amend-

ment violation.) *!

In Akron, this Court disparaged the

statutory prescription of "a litany of

information that the physician must recite to

each woman regardless of whether in his

judgment the information is relevant to her

personal decision." Id. at 445. The Court

continued, "It is not disputed that individual

‘counseling should be available for those

persons who desire or need it... ." Id. at

448 n.38. (emphasis added). See also Colautti

v. Franklin, 439 U.S. 379 (1979).

The Court in Akron invalidated an

“informed consent" provision requiring the

physician to inform the woman, inter alia,

that "the unborn child is a human life from

the moment of conception" and that “abortion

is a major surgical procedure." Akron, 462

sl The AFLA's restrictions on abortion

speech translate into conditions of employment

for AFLA grantee medical personnel. See e.g.,

J.A. 526, 550.

U.S. at 445. The provision included a list of

possible health complications -- a "parade of

horribles" -- which the Court characterized as

“intended to suggest [the dubious idea] that

abortion is a particularly dangerous proce-

Gure." Id. This Court invalidated it, noting

that the requirements had been "designed not

to inform the woman's consent but rather to

persuade her to withhold it altogether."

Akron, 462 U.S. at 444 (emphasis added).

Using similar reasoning, in Planned Parenthood

v. Danforth, 428, U.S. 52 (1976), the Court

upheld an informed consent provision that it

found to encourage accurate and complete

counseling, because "the decision to abort .

is an important, and often stressful one,

and it is desirable and imperative that it be

made with full knowledge of its nature and

consequences." Danforth, 428 U.S. at 67

(emphasis added). See also Thornburgh v.

ACOG, 106 S. Ct. at 2178.

The invalid Akron provisions are strik-

ingly similar to the instruction prescribed in

the AFLA programs -- the very kind of

"litany" designed not to inform, but to

mislead. Accordingly, the AFLA scheme, which

is designed to withhold full knowledge about

abortion from program participants, cannot be

upheld.

2. The AFLA's Funding Scheme Impermis-

sibly Coerces the Minor's Reproduc-

tive Life Decisionmaking.

This Court has previously noted that

minors (as well as parents, who are often a

primary source of guidance to their children),

have an especially acute need for truthful

information about sexuality and pregnancy.*

32 As the Court recognized in Bolger v.

Youngs Drug Products Corp., 463 U.S. at 75

n.30, “adolescent children apparently have a

pressing need for information about’ con-

traception." Thus, the statute at issue in

Bolger prohibiting advertising about con-

traception was struck down because it in-

hibited the free flow of truthful information

and denied adolescents and their parents the

ability to discuss birth control and make

informed decisions about sex. Id. at 74. Cf.

"(T)ne potentially severe detriment facing a

pregnant woman is not mitigated by her

minority. Indeed, considering her probable

education, employment skills, financial

resources, and emotional maturity, unwanted

motherhood may be exceptionally burdensome for

a minor." Bellotti v. Baird (Bellotti II),

443 U.S. 643 (1979).

The Act's restrictive funding scheme is

designed to ensure that at least one of

several possible obstacles will ultimately

prevent a pregnant adolescent from considering

or obtaining an abortion. In the case of

those AFLA programs which prohibit any mention

of abortion as an alternative to bearing a

child, the adolescent will be kept ignorant of

that option.** In the case of those programs

Carey, 431 U.S. at 678 (provision prohibiting

parents from distributing birth control to

children is invalid).

33S See, e.g., J.A. 484 (Lyon County

Health Department's teaching manual states:

"Discussion [of abortion] not included because

which do include a discussion of abortion, the

presentations are biased so as to steer the

teenager into the predetermined course of

behavior of carrying to term. Even a

it is not an option to consider") (emphasis in

original); J.A. 553 (Maisenbacher Affirma-

tion) (Pregnant teens are "very ignorant" when

they arrive at St. Margaret's Hospital and are

"encouraged to become dependent on an institu-

tion which will deliberately perpetuate their

ignorance by giving only medical procedures

and information consistent with Catholic

directives"). See also pp. text and notes

p- 26 supra.

34 The program descriptions are filled

with seemingly benign language about supplying

minors not merely with facts, but with values;

when one realizes, however, that "the very

purpose of religion is to transmit certain

values," J.A. 597 (Simmons Affirmation), it

becomes evident that the religious mission of

funded groups and the raison d'etre of the

AFLA are one and the same. Because of the

impermissible fusion of the secular and the

religious effected by the Act, good "values"

and “accurate” decisions are, under this

scheme, synonymous with being a "better

Christian" and with living life "as God

intended." J.A. 636-37 (excerpts from St.

Margaret's curriculum); J.A. 633 ("Sometimes

there are good sources of information, but

other times the messages may not be accurate

or present sexuality as special and important

. ». shows we see on television or at the

movies are not real life but make-believe and

do not present sexuality as God

teenager who is somehow independently aware of

abortion (and/or contraception) as an option

may be too intimidated to inquire about

either, because of the pervasively religious

nature of the locale,* the presence of clergy

performing religious functions or in their

traditional garb,** the decided preference for

childbearing and motherhood reflected in

intended.") (emphasis in original). See also

text and notes pp. 11-15 supra.

35 For example, St. Margaret's Hospital

contains crucifixes and religious symbols and

statuaries throughout the buildings and

grounds. J.A. 552-53 (Maisenbacher Affirma-

tion); J.A. 485 (AFLA "program at one paro-

chial school and a local Lutheran Church were

held in rooms where religious symbols were

displayed").

36 See, e.g., J.A. 568 (Pastor William

J. Ingersoll's letter confirms that’ the

addressee of the letter will "meet with the

parents and youth" to cover various topics,

“followed by a brief presentation by myself of

Biblical and theological views regarding

sex." ) For complete listing of instances in

which clergy and/or visibly religious employ-

ees were present during orientations or the

actual workshops, see R. 155, 61-62 n. 102

(Memorandum of Points and Authorities in

Support of Plaintiffs' Motion for Summary

Judgment).

program materials,*’ the often inaccurate and

inflammatory description of the abortion

procedure and its consequences,* the simi-

larly inflammatory or inaccurate description

of contraceptives,*® or some combination of

37 See, e.g., L.D. 11 (Current grantee

Christian Family Care Agency materials advise

pregnant woman that abortion "is not the

answer to a crisis pregnancy . .. . Deciding

to give your baby life is a loving, courageous

decision ..."). See also J.A. 513 (Catholic

Family Services AFLA grant application states

that "[t]he client will not be counseled to

terminate the pregnancy, although caseworkers

do discuss a client's feelings about abortion

and the detrimental effects abortion can have

on the physical and emotional well-being of

the client, as well as the destruction

occurring to an unborn infant").

38 See, e.g., pp. 26-29 and n. 14 supra.

L.D. 77-78, 86-100 (Current grantee, A Woman's

Choice distributes materials with facts and

statistics by exaggerating the possibility of

remote complications from abortions.)

38 See, e.g., J.A. 522 (Student Evalua-

tion of AFLA course states: "I don't think

they should try to discourage kids from using

birth control because the Church says not to.

Some kids have made mature decisions and

dwelling on what the Church says may give them

a guilt trip... (the teacher] spent so much

time on the _ natural family planning (rythm

method) [sic] as a good thing because the

Church approves it but she failed to mention

those factors. The dissemination of misin-

formation (or failure to provide essential

information), in the "care" programs is

particularly coercive as it takes place during

the limited and stressful time period when a

woman is deciding whether or not to continue

her pregnancy. But even ir the "prevention"

programs -- the teenage sexuality education

programs -- the government preempts by hidden

force the woman's decisionmaking process

through systematic and calculated misinfor-

mation as well as other coercive strategies.

The magnitude of the government's incursion on

this decisionmaking process is all the greater

because it affects women who are at a critical

juncture in the formation of their personal-

ities and moral development.

By funding such “education” and "“care"

programs, the AFLA clearly flouts this Court's

that it is not good for teenagers to use this

method -- it's not really safe.") (emphasis

added).

frequently stated mandate that government

refrain from exerting undue influence, through

physicians or otherwise, on a woman's deci-

sionmaking with respect to contraception and

abortion. "The states," however, “are not

free, under the guise of protecting maternal

health or potential life, to intimidate women

into continuing pregnancies." Thornburgh v.

ACOG, 106 S. Ct. at 2178 (1986). Nor may

government constitutionally discourage use of

contraceptives by hiding or distorting

information about them.‘

40 In Carey v. Population Serv. Int'l,

431 U.S. 678, the State of New York sought to

justify a statute prohibiting distribution of

contraceptives te those under 16 on the basis

that the law would deter sexual activity among

minors in that age range. This Court flatly

rejected such a rationale, taking judicial

notice that minors do have sexual relations

and with "frequently devastating" conse-

quences. Id. at 695-936. Concurring in part

and concurring in the judgment, Justice

Stevens pointed out the danger and irration-

ality of impesing on individuals a rigid

ideology that simply ignores reality:

Although the State may properly perform a

teaching function, it seems to me that an

attempt to persuade by inflicting harm on

If forced ignorance and intimidation fail

to keep the teenager from raising the question

of abortion, the teenager who requests

abortion counseling or referral cannot, by the

terms of the statute, receive it unless both

of her parents (or guardians) also "request"

it. 42 U.S.C. Sec. 300Z2-10(b). This provi-

sion constitutes a further obstacle, which in

practice operates, even for the mature and/or

emancipated minor, as 4a parental consent

requirement without the alternative avenues

constitutionally required. Moreover, if a

teenager, unaware of the anti-abortion

restriction on funding, requests abortion

the listener is an unacceptable means of

conveying a message that is otherwise

legitimate. The propaganda technique

used in this case significantly increases

the risk of unwanted pregnancy and

venereal disease. It is as though the

State decided to dramatize its disap-

proval of motorcycles by forbidding the

use of safety helmets. One need not

posit a constitutional right to ride a

motorcycle to cheracterize such a

restriction as irrational and perverse.

Id. at 715.

services (or any other service, for that

matter), the Act requires both notification to

and permission of parents or guardians,‘! with

only three narrow exceptions. 42 U.S.C. Sec.

41 The AFLA is touted as representing an

"innovative" approach, depending primarily on

"developing strong family values and attitudes

of adolescents concerning sexuality and

pregnancy. ° -" 42 U.S.C. Sec. 300Z-

(a) (10) (A). When one compares the rhetoric,

however, with the actual design of the statute

it becomes apparent that family "values and

attitudes" receive the government's approval

only if they comport with the narrow anti-

abortion ideological message which Congress

intended to further by the Act. For example,

Sec. 300z-5(a) (22) (A)(ii) provides that "in

the case of a pregnant unemancipated minor

requesting services from the applicant, the

applicant will notify the parents or guardians

of such minor . . . within a reasonable period

of time ...." Yet, the Act also specifi-

cally prohibits parental notification in the

case of a pregnant unemancipated minor if a

grantee has reason to suspect - that "such

parents or guardians are attempting to compel

such minor to have an abortion." Sec. 300a-

5(a)(22)(C) (emphasis added). This provision

is not a neutral one designed to protect the

minors' fundamental rights to procreative

choice-making free from compulsion. There is

no corollary provision in the case of parents

attempting to "compel childbearing and/or

adoption." Clearly, Congress has determined

that parental involvement is desirable only if

the parents will further the statute's

ideological agenda.

300z-5(22) (A), (B).- In the case of abortion,

this provision can only serve a punitive

purpose, since the AFLA grantee by definition

will not, in any event, provide such a

service.

3. Given That it Interferes With

Privacy Rights, The AFLA is Not

Sufficiently Narrowly Tailored

to Withstand Constitutional

Scrutiny

Each of ‘the barriers to access to or use

of contraception built into the statute and

manifested in the "prevention" and "care"

programs is, independently, far more than a

mere expression of policy favoring childbirth

over abortion. See Harris v. McRae, 448 U.S.

297, 325 (1980); Maher _v. Roe, 432 U.S. 464,

474 (1977). Rather, eacn acts as an affirma-

tive, state-created obstacle in the path of a

woman's right to decide for herself whether or

not to bear a child. This right is no less

fundamental for minor women than for adult

women.‘ Statutes burdening that right cannot

withstand constitutional scrutiny unless they

satisfy an "“important" state interest, and

unless the means are narrowly drawn to serve

only that interest. See H.L. v. Matheson, 450

U.S. 398, 413 (1981). The legislative purpose

of curtailing adolescent sexual activity may

be an important state interest, but the

strategy of achieving that purpose by promot~

ing ignorance, fear, guilt and misinformation

is not narrowly tailored to serve that

42 City of Akron v. Akron Center for

Reproductive Health, 462 U.S. 416 (1983)

(invalidating blanket rule which treats all

minors under 15 as too immature to make

abortion decision and which denies opportunity

to show that abortion is in minor's best

interests without parental consent); Bellotti

v. Baird (Bellotti II), 443 U.S. 622 (1979)

(no third party, including parents, may

exercise absolute veto power over minor's

decision to seek abortion); Planned Parenthood

v. Danforth, 428 U.S. 52 (1976) (holding

unconstitutional statute requiring that

unmarried minors under 18 obtain parental

consent for abortion).

interest, and indeed defeats that interest.*

Experts on the subject have long recognized

that adolescents do not respond well to

moralizing and that the object of any teen

pregnancy program must be clarification of an

43 The premise of the AFLA is that there

is a causal relationship between access to

accurate information about contraception and

increased promiscuity, and an increase in the

rates of pregnancy, abortion and childbirth

among teens. One expert on adolescent

pregnancy calls this presumed relationship

between family planning availability and

increased promiscuity "spurious." She writes,

"Ttjhere is no evidence that the availability

of family planning services increases sexual

activity among female teenagers; however, it

does appear to improve contraceptive use and

reduce their chances of having an unplanned

pregnancy and out-of-wedlock birth.", Hof-

ferth, The fects of Program and Policies on

Adolescent Pregnancy and Childbearing,

reprinted in 2 Risking the Future: Adolescent

Sexuality, Pregnancy, and Childbearing, 225,

260, (Hofferth & Hayes, eds., 1987) (National

Research Council publication). Another study

found that residence in a southern state was

the most important predictor of high adoles-

cent fertility and related that fact to, among

other things, the higher proportion of Funda-

mentalists in that area and to the fact that

southern states allot relatively little money

to education and welfare and that abortions

are less available in the South. Morgan,

Interstate Variations in Teen Fertility, 2

Population Res. and Pol'y Rev. 72 (1983).

adolescent's own values. Studies as well as

common sense indicate that if adolescents are

made to feel guilty about sex, they will shun

taking any precautions, since doing so would

be tantamount to an admission of sexual

activity:

A conflict exists because the

attitude of the adolescent is that

sex is all right and the person or

situation is right, but the moral

code of most parents stipulates that

premarital sex is wrong . Be-

haviorally, however, the adolescent

is sexually active. The discrepancy

that exists between actual behavior

and moral upbringing is often

evident in the percentage of

adolescents who routinely do not use

any type of birth control and are

surprised when they become pregnant.

The adolescents feel that if they do

not use contraception and are swept

away on the spur of the moment, then

sexual behavior is acceptable.

Planning sexual activity conflicts

with the moral code of their parents

and their own confused beliefs and

values.

Tauer, Promoting Effective Decision Making in

Sexually Active Adolescents, 18 Nursing

Clinics of North America 276 (1983) (footnote

omitted). Therefore, despite the government's

legitinate interest in reducing rates of

adolescent pregnancy, the approach it has

adopted through the AFLA is not likely to

instill the sense of responsibility and

autonomy in teenagers that many feel is

essential to stemming the problem of unwanted

teen pregnancy.

The emphasis on bringing out the adoles-

cent's own values is based not only on the

abstract ideal of respect for individual

conscience,*4 but also on the practical

realization that this is the only way for

young adults to develop the self respect and

self confidence necessary to act responsibly

and with an understanding of the consequences

of their acts: "The harmony between one's

44 The first amendment embodies a

promise based on just that "abstract ideal"-

-~ that under the newly-formed constitutional

system, the federal government would he

required to treat its citizens with respect.

See Record Docket Entry 155 (Memorandum of

Points and Authorities in Support of Plain-

tiffs' Motion for Summary Judgment 8-12).

beliefs and one's choices and the realization

that the adolescent himself has made the

choice will help him to be an active par-

ticipant in his own health care." Tauer,

supra p. at 280. This Court has recognized

that the absolute imposition of external

values on minors -- whether it be the values

of parents, judges, physicians, or religion--

is constitutionally intolerable.* It is also

a way to ensure minors' dependency and

continued ignorance. More than a moral

authority, "[{t]he adolescent needs a neutral

465 In his concurring opinion in Bellotti

v. Baird (Bellotti II), 443 U.S. 662 (1979),

Justice Stevens noted the constitutional

difficulties inherent in the judicial bypass

procedure, which required that a.judge apply

the value-laden standard of "best interests of

the minor." This standard was of little

guidance, he wrote, because "(the judge's]

decision must necessarily reflect personal and

societal values and mores whose enforcement

upon the minor -- particularly when contrary

to her own informed and reasoned decision --

is fundamentally at odds with the privacy

rights underlying the constitutional protec~

tion afforded to her decision." Bellotti II,

443 U.S at 655-56 (Stevens, J., concurring in

judgment).

ally who can help her evaluate the pros and

cons of various choices. Such an ally needs

to be able to tolerate her ambivalence toward

the pregnancy and her relationship to her

parents and other significant authority

figures." Adler, Sex Roles and Unwanted

Preqnancy in Adolescent and Adult Women, 12

Professional Psychology 63 (1981).

The existence of successful programs

which encourage teens to abstain from or delay

sexual relations, but also counsel on birth

control and abortion, should leave no doubt

that Congress has not here chosen the least

intrusive means for achieving the goal of

promoting abstinence among teenagers. For

example, “Teen Choice" is a sexuality educa-

tion and counseling program conducted in seven

New York City public schools by Inwood House,

a home for unwed mothers. The program

"encourages teens to delay having sex," but

[sJources for birth control are

given when it becomes obvious that

the girl plans to have sex -- with

or without birth control. A similar

process takes place if a girl turns

to a counselor for advice on an

abortion.

"Whether we favor it or not is

really irrelevant," said Dominique

Moyse~-Steinberg, a Teen’ Choice

counselor at Brandeis. "What's

really important is option coun-

seling [to ensure] that what is done

is done of her own free will."

Education Research Group, Teen Pregnancy:

Impact on the Schools 50 (R. Weiner ed. 1987)

(A Special Report).* In sum, by treating

46 Tauer echoes the theme of free will

and focuses on the importance of treating

adolescents as capable, independent moral and

intellectual agents:

If we believe that the only way to

promote effective decision-making in

adolescents is to help them to

understand what is valuable in their

own life and to use that as a base

for making decisions, then we can no

longer spoon-feed information to

them. We must take into account the

cognitive, social, emotional, and

sexual development of adolescents,

and only by being aware of them as

growing, changing persons will we be

able to effectively help them to

choose how to live their lives. If

their choice is to be sexually

active and they are in accord with

their beliefs and it is a choice

that they have made freely, after

teenagers as morally and intellectually

incompetent to make intimate decisions about

their lives, the statute makes that harsh

judgment a self-fulfilling prophecy.

Moreover, the AFLA is constitutionally

defective in its requirement that both parents

(or guardians) "request" abortion counseling

or referral, in order for the adolescent to

receive either. 42 U.S.C. Sec. 3002-10(a).

This so-called "exception" is virtually

understanding all of the alterna-~

tives and accepting the outcome,

then we must accept that choice. If

their choice is not to be sexually

active and is based on their own

belief system and is a choice freely

made by examining all the alterna-

tives and understanding the outcome,

then we must also support that

decision. The health professional

must strive to help adolescents

learn to make decisions based upon

their own beliefs and value systems,

to guide them to an understanding of

where they are in their development,

to not moralize or _ preach; to

understand what sexuality means to

the adolescent and not merely to

emphasize physiological aspects of

sex.

Tauer, supra p. 51, at 280.

meaningless in light of the absolute prohibi-

tion on funding to groups that in any way

countenance abortion.‘ Regardless of what

the statute may permit technically, many AFLA-

funded health care providers hold anti-

abortion beliefs, and thus cannot, in accor-

dance with those beliefs, provide the re-

quested information. Even in the case of an

AFLA-funded health care practitioner who may

47 See also Sec. 300z-5(22) (A) (i),

requiring, subject to certain exceptions, that

AFLA grant applicants provide assurances that

they will "notify the parents or guardians of

any unemancipated minor requesting services .

. « [and] will obtain the permission of such

parents or guardians with respect to the

provision of such services." As for pregnant

unemancipated minors requesting services,

applicants must- provide’ the- additional

assurance that parents will be notified

“within a reasonable time." Sec. 300z-

5 (22) (A) (ii). This provision is, quite

transparently, designed to deter minors who

would prefer not to involve their parents,

from requesting certain services, including

abortion. Clearly, however, parental involve-

ment is paid lip service only; it is hindered

where parents favor the dissemination o-

honest abortion-related information as such

involvement will not further the coercive

purposes of the Act. See note 41 supra.

not strictly adhere to anti-abortion stric-

tures, there is no mechanism in the statute to

ensure that he or she will be made aware of

the exception. See J.A. 550 (Maisenbacher

Affirmation) .*

48 Ms. Maisenbacher, a registered nurse

formerly employed as a midwife in the AFLA-

funded Se Margaret's Teenage Pregnancy

Program, noted the inefficacy of the exception

which she defined as requiring parental

"consent":

In my employment interview I was

told both by Nancy Barrows, director

of Nurse-Midwives, and the personnel

director, that I would not be able

to discuss either abortion or

artificial family planning with my

patients because to do so would

breach the religious tenets of St.

Margaret's. I was given a booklet

entitled "Ethical and Religious

Directives for Catholic Health

Facilities", (Exhibit A). It was

made clear to me that if the

religious rules in this booklet were

not followed I could lose my job.

Although I understand that the

Adolescent Family Life Act permits

teenagers to get information and

referral for contraceptives with

parental consent, and aborticn

referrals upon parental request, I

was not informed of this when I

worked at St. Margaret's and it is

clear that even providing such

limited information would breach the

- | —

Moreover, the parental "request" excep-

tion, in practice, operates no differently

than an unconstitutional parental consent

requirement.‘ It represents the last of a

series of obstacles set by the Act in the path

of a woman attempting to make a _ personal

decision. Minors have a right of access to

information directly affecting their repro-

ductive lives. Carey v. Population Serv.

hospital rules as explained to me.

Id. at 550. (emphasis added).

49 H.L. v. Matheson, 450 U.S 398 (1980),

is not to the contrary. The statute upheld in

that case required parental notice only "if

possible," and the Court made clear that the

Utah statute did not grant parents veto power

over the minor's abortion decision, which

would have been constitutionally impermis-

sible. Id. at 411. The AFLA's vague "re-

quest" provisions, however, apparently require

parents to come forward ard, either orally or

in writing, state an interest in receiving

information about abortion. Obviously,

parents would not do so unless they might

approve of an eventual abortion. Moreover,

the Matheson Court did not extend its holding

to mature or emancipated minors, or to

immature minors who could demonstrate that

notification would be detrimental to their

best interests. Id. at 406-07 n.14.

Int'l, 431 U.S. 678. Insofar as access to

information is a prerequisite to the ability

to obtain an abortion, the parental "request"

requirement violates the well-established

principle that where government requires

parental consent to the minor's abortion

decision, it "must provide an alternative

procedure whereby 4a pregnant minor may

demonstrate that she is sufficiently mature to

make the abortion decision herself or that,

despite her immaturity, an abortion would be

in her best interests." City of Akron, 462

U.S. at 439-40."

50 See Bellotti II, 443 U.S. at 644

(explaining that the judicial by-pass proce~

dure would provide an alternative to parental

consent whereby a minor would have an "effec-

tive opportunity" to secure an abortion with

anonymity); Carey v. Pop. Serv. Int'l, 462

U.S. at 688-89 (holding that the right of

access to contraceptives “is essential to

exercise of the constitutionally protected

right of decision in matters of childbearing

that is the underlying foundation of the

holdings in Griswold, Eisenstadt v. Baird, and

Roe v. Wade"). See also Bolger v. Youngs Drug

Products Corp., 463 U.S. at 69 (holding that

the first amendment prohibits government from

The deliberate withholding of vital and

accurate information about contraception and

abortion required by the AFLA constitutes a

state-created obstacle in the path of a

woman's right to make her own reproductive

life decision. Enforced ignorance is at least

as formidable an obstacle in that path as

criminal penalties (Roe); spousal consent

requirements (Danforth) ; parental consent

inhibiting the flow of truthful information

where that information "relates to activity

which is protected from unwarranted state

interference").

It is immaterial that thé AFLA does not

bar all available channels through which

adolescents may learn about abortion. The

Constitution forbids government to exceed

certain limits defined by this Court. It

simply does not matter for constitutional

purposes whether that limit has been exceeded

partially or thoroughly. As this Court once

explained in a slightly different context,

"one is not to have the exercise of his

liberty .. . abridged on the plea that it may

be exercised in some other place." Schneider

v. State, 308 U.S. 147, 63 (1939). See also

Carey, 431 U.S. at 697 (1977) (“less than

total restrictions on access to contraceptives

that significantly burden the right to decide

whether or not to bear children must also pass

constitutional scrutiny").

re!

requirements amounting to veto power (Bellotti

z);5! second-trimester hospitalization

requirements (Akron); and distorted informed

consent provisions (Akron, Thornburgh). The

concerted effort of government and religion to

impose one preferred set of values on young

women operates as a subtle but profound veto

on individual autonomy and self-determination.

51 Bellotti v. Baird, (Bellotti I), 428

U.S> 132 (1976).

CONCLUSION

This Court should affirm the district

court judgment on establishment clause, free

speech and privacy grounds and modify the

order to strike down the AFLA in its entirety

as unconstitutional.

Respectfully Submitted,

Sarah E. Burns

Counsel of Record

Sara L. Mandelbaum

Marsha Levick

NOW Legal Defense and

Education Fund

99 Hudson Street; 12th Floor

New York, NY 10013

(212)925-6635

and

1333 H Street, NW; llth Floor

Washington, DC 20005

(202) 682-0940

Counsel of record and amici curiae acknowledge

and thark Jennifer C. Pizer, New York Univer-

sity Law School, J.D. 1987; Doreena Wong, New

York University Law School, J.D. 1987; Anne

Zinkin, New York University Law School, J.D.

degree expected 1988; Lisa Swanson, Lyn McCoy

and Lynn Thorp.

APPENDICES

A. Letters of Consent to the

Filing of the Brief Amici

Curiae

B. Interest of Amici Curiae

C. Certificate of Service by

Counsel of Record

D. Index to Lodged Documents

APPENDIX A

Letters of Consent to the Filing of

the Brief Amici Curiae

US. Departinent of Justice

Office of the Solicitor General

Washington. D.C 20530

February 1, 1988

Jennifer C. Pizer, Esquire

Legal & Research Director

National Abortion Rights

Action League

1101 14th Street, N.W., 5th Floor

Washington, D.C. 20005

Re: Bowen v. Kendrick, et al.

Nos. 87-253, 87-431, 87-462 and 87-775

Dear Ms. Pizer:

With regard to your letter of January 25, 1988, I hereby

consent to the filing of an amicus brief in the above case on

behalf of the NOW Legal Defense & Education Fund, the National

Abortion Rights Action League, and possibly other organizations.

Sincerely,

Sr bon Ash

. oo -

Charles Fried

Solicitor General

SE RICAN CIVIL LIBERTIES UNION F OUNDATION ‘

7 132 West 43 Sireet THE UN ERSITY F CHICAGO

{ 7 4 — i ieee —- New Yoru NY 10036 THE LAW HOOL

REPRODUCTIVE FREEDOM PROJECT (212) 944-9800 Ea lg be = owe

— WICAG * ILLINOIS e005? ly “LPs |

Mw Pantrow )} Ce _— . >

Seoren Pre Ui. ’ 9 PA e j /

ran coumem CO Ma fi

s({ °’* ~ /

February 8, 1988 one ae a See Lid

ae CO fie i

February 1, 1988 =

Norman Dorsen

m= soon

Jenny Pizer ve Giasser

Legal & Research Director LCT ORECTOR en oe ee

NARA L Legal & Research Director

1101 14th Street, N.W. NARAL

Sth floor 1101 14th Street, N.W., Sth Floor

Washincton, D.C. 20005 Washington, DC 20005

Dear MS. Pizer:

re: Bowen v. Kendrick

87-253, 87-432, On behalf of United Families of America, I am happy to give

87-462, 87-775 my consent to your filing an amicus curiae brief in Bowen v.

Kendrick and the consolidated cases, Nos. 87-253, 87-431, 87-462,

Dear Ms. Pizer: and 87-775.

Pursuant to your recuest, Cross~Appellants dite epee emis

Chan Kendrick et al., herein consent to the filing , Lm

of a brief amicus curiae in the above-captioned case Dikb — -* g

by the NOW Legal Defense s Education Fund, the National Michael W. McConnell

Abortion Rights Action League, and such other groups as may Assistant Professor of Law

wish to join Counsel of record, United

C c ° Families of America

Sincerely, —

7 ee

al A

—

Janet Benshoof

Attorney for Cross-Appellants

JB/hs

APPENDIX B

Interest of Amici Curiae

INTEREST OF AMICI CURIAE

The NCW Legal Defense and Education Fund (NOW

LDEF) is a non-profit civil rights organiza-

tion that performs a broad range of legal and

educational services nationally in support of

women's efforts to eliminate sex-based

discrimination, secure equal rights, and

preserve reproductive options under law.

The National Abortion Rights Action League

(NARAL) is a national organization with more

than 200,000 members in 34 state affiliates

and the national organization. Because NARAL

believes that reproductive self-determination

is central to the lives and health of women,

NARAL educates the public and policymakers

about the importance of creating ' social

conditions that allow women to exercise freely

the full range of their reproductive choices.

The American Association of University Women,

a national organization of over 150,000 women

and men, is strongly committed to achieving

legal, social, and economic equity for women.

AAUW supports basic constitutional rights for

all persons, including first amendment rights

of free speech and separation of church and

state, the right to privacy, and equal

protection under the law. The right to

reproductive choice continues to be a priority

issue for AAUW.

The ican Humanist Association is a non-

profit national educational organization of

persons in every state of the Humanist philo-

sophy. The AHA strongly supports freedom of

conscience and the principle of separation of

church and state. The AHA believes that the

AFLA violates both the establishment clause

and the right to privacy protected by the

fourteenth amendment.

Americans for Rel us berty is a nation-

wide, non-profit, educational public interest

organization dedicated to defending religious

liberty, freedom of conscience, and _ the

constitutional principle of separation of

church and state. ARL believes that the AFLA

violates the establishment clause by providing

tax support to sectarian institutions and

violates the privacy rights of intended

beneficiaries by providing them with distorted

information.

The Black Women's Agenda is a private non-

profit organization which aims to improve the

status of black women and their families. The

BWA is interested in Bowen v. Kendrick because

of AFLA's impact on low-income black girls and

their access to information consistent with

reproductive freedom.

B'nai B'rith Women, Inc., founded in 1897, is

a non-profit charitable, religious, and educa-

tional organization of over 125,000 women.

Among its purposes, as_ reflected in its

bylaws, is to "give guidance to youth on the

broadest principles of humanity." It has

implemented that purpose through a specific

program designed to meet the rise of teenage

pregnancies through educational programs for

parents and adolescents.

The Center for Law and Social Policy is a

public interest law firm which provides

representation to women, minorities, the

disabled, and the poor on issues of family law

and policy. Our work has confirmed that teen

pregnancy can have especially devastating

consequences for poor teenagers and lead to

economically insecure families. In light of

this reality, a crucial component of any

rational family planning policy must be the

preservation of service providers' flexibility

to offer counseling to pregnant teenagers that

gives them the ability to make informed

choices best suited to their circumstances.

The mmittee to Defend Reproductive Rights is

a San Francisco, community-based organization

with 1,000 members throughout California and

several other states. For ten years, CDRR has

been dedicated to insuring women's reproduc-

tive freedom by engaging in public education

issues concerning reproductive rights. CDRR

supports and defends the reproductive right

and freedom of all women, including young

women.

Equal Rights Advocates, Inc. is a San Fran-

cisco-based public interest legal and educa-

tional corporation dedicated to working

through the legal system to end discrimination

against women. It has a long history of

interest, activism and advocacy in all areas

of the law which affect equality between the

sexes. ERA believes that the right to control

one's reproductive life is fundamental to

women's ability to gain equality in other

aspects of society.

The National Emergency Civil Liberties

Committee is a non-profit organization,

dedicated to the preservation and- extension of

civil liberties and civil rights. Founded in

1951, it has brought numerous actions in the

federal courts to vindicate constitutional

rights. Through its educational work, it

likewise has sought to preserve our lib-

erties. From time to time, the NECLC submits

amicus curiae briefs to the Court when it

believes issues of particular import to civil

liberties are at stake.

The National Organization for Women (NOW) is a

national membership organization of

approximately 150,000 women and men in about

700 chpaters throughout the country. It is a

leading advocate of wcmen's equality in all

areas of life. NOW has as one of its priori-

ties the preservation of the right to repro-

ductive freedom, including abortion.

The National Women's Healt tw serves as

an advocate for women whose voices are not

heard in the creation of health policies at

the federal level. Given that young women's

health education needs were to be a goal of

this federal program, the National Women's

Health Network wishes to voice its concern

that young women's needs be truly met and not

encumbered by religious teachings.

The National Women's Political Caucus is a

non-profit corporation supporting the election

and appointment of women to public office. It

also supports legislative and public policy

issues of concern to women, such as freedom of

choice an reproductive rights, the Equal

Rights Amendment and economic and legal equity

for women.

The Northwest Women's Law Center is a private,

non-profit organization in Seattle, Washing-

ton, that works to advance the legal rights of

women by means of litigation, education, and

providing information and referral. Pro-

tecting women's freedom of reproductive choice

is one of the Law Center's priority issue

areas. The Law Center has participated in

several cases involving reproductive rights

before the U.S. Supreme Court.

The United States Student Association is a

student advocacy service, representing over 3

million students and over 400 universities and

colleges around the United States. USSA is in

favor of a woman's right to choose and of

reproductive freedom because an unwanted

pregnancy can restrict a woman's access to

higher education.

Voters for Choice is the only national, inde-

pendent pro-choice political action committee.

Voters for Choice works directly with canm-

paigns, providing both contributions and vital

technical assistance to candidates in dealing

with reproductive rights issues.

The Women's Law Project is a non-profit

feminist law firm dedicated to advancing the

status and opportunities of women through

public education, litigation, advocacy and

research. The WLP has played a leading role

in defending reproductive rights in the

courts, including representing plaintiff women

and medical providers in Thornburgh v. ACOG,

vw. 8. , 106 S.Ct. 2168 (1986).

The Women's Legal Defense Fund is a tax-exempt

non-profit membership organization founded in

1971 to challenge sex-based discrimination and

to advance women's concerns through the legal

system. WLDF has worked extensively on issues

of reproductive freedom.

Zero Population Growth is a national non-

profit, membership organization that works to

mobilize broad publics support for population

stabilization both in the U.S. and worldwide.

ZPG supports laws and social practices that

ensure access for all women to voluntary

family planning services as well as medically

safe and affordable abortion services.

APPENDIX C

Certificate of Service by Counsel of Record

CERTIFICATE OF SERVICE

I hereby certify that I have caused three copies of the

foregoing Brief of Amici Curiae NOW Legal Defense and Education

Fund, et al., together with a copy of the Lodged Documents refer-

enced therein at note 2, to be served by first class mail postage

prepaid upon:

Counsel of Record for Appellant Bowen

Charles Fried

Solicitor General

U.S. Department of Justice

Washington, D.C. 20530

Counsel of Record for

United Families of America

Michael W. McConnell

University of Chicago Law School

1111 East 60th Street

Chicago, Illinois 60637

Counsel of Record for

Chan Kendrick, et al.

Janet Benshoof

ACLU-Reproductive Freedom Project

132 West 43rd Street

New York, New York 10036

on or before February 13, 1988.

Sarah E. Burns

Counsel of Record for Amici Curiae

NOW Legal Defense and

Education Fund, et al.

APPENDIX D

Index to Lodged Documents

INDEX TO LODGED DOCUMENTS

Affidavit of BARRY SWEET. . ° 1

Ex. A - “Christian Family Care Agency - A

Helping Service for Children and

Families". 3

Ex. B - "Christian Family Care Agency - A

Helping Service for Children and

Families"... » 9

Ex. C - “Pregnancy Assistance Services" - ll

Ex. D = “Adoption Fees" . . . . . . 13

Ex. E - "CPCA Auxiliary® .. =. =. .- « 4§

Ex. F - “Foster Care Services" . . . .17

Affidavit of DANIELLE BEN-JEHUDA . . . - 19

Ex. A =- Correspondence. ... o Ba

Ex. B - Community of Caring, Teachers"

Guide (excerpt - "Putting Sex in

Perepective T°) . . + « « « 2

Affidavit of JENNIFER TRAUB

(Items no. 1-4). . - 28

Ex. A - “Being Pregnant Can Seem Like a

Crisis® .. . > « » «6 =e

Ex. B - "Starting a New Life" . « 2 ee ee

Ex. C - “Before You Decide” . . . . . 34

Ex. D - “Help For Pregnant Teens" . . . 36

Ex. E - “Even in the Wilderness,

Forgiveness Lives" . . . . . 43

Ex. F - "General Information" from

Birthright of Columbus, Inc. ... 45

Ex. G - Excerpts from Training Manual

for the Pregnancy Distress

Affidavit of JENNIFER TRAUB

Affidavit of ELIZABETH STROM. ° ° ° - 63

Ex. A - "To All Those Who Believe

in the Sanctity of Human

Affidavit of JUDITH BECHER. . . . - 68

Ex. A - "37 Ways to Say No". . . « Va

Ex. B - "47 Reasons to Wait". . . . . 73

Ex. C - "51 Reasons for Sex". . . . «. 74

Ex. D=- "It's 0.K. to Say No! . . . . 75

Ex. E - “Abortion: Your Risks". . 77

Ex. F - "The Questions Most People Ask About

Abortion" . ° ° ‘ » ve

Ex. "As a Woman, You Must Know Your

Ex. H =

Ex. I =

Ex. J =

Ex. K <=

Ex. L =

Ex. M =

Ex. N =

Ex. O =

Affidavit

Ex. A-

"Abortion Harmless?". ° » « OS

"Have You Been Told Everything You

Need To Know About Abortion?". . 86

"Post Abortion Syndrome" . . . 88

"The Pain That Follows ~ Coping

After an Abortion"

"Before You Make The Decision" - 91

"Abortion: Some Medical Facts" . 93

"Your Body Ecology” . . ° 97

"Abortion: The Hard Cases" " 101

of LISA SWANSON. . -105

United States Department of

Health and Human Services,

Press Release, dated Nov. 5,

1987, announcing new Adolescent

Family Life Act grant recip-

ients, with list of grantees

attached. . . «+. « «+ 106

cet + ee a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.