Amicus Curiae Brief — Rust v. Sullivan

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Nos. 89-1391, 1392 vay 4 1990

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

~e—

DR. IRVING RUST, on behalf of himself, his patients and all others similarly

situated, DR. MELVIN PADAWER, on behalf of himself, his patients, and

all others similarly situated, MEDICAL AND HEALTH RESEARCH ASSOCI-

ATION OF NEW YORK CITY, INC., PLANNED PARENTHOOD OF NEW

YORK CITY, INC., PLANNED PARENTHOOD OF WESTCHESTER/

ROCKLAND, and HEALTH SERVICES OF HUDSON COUNTY, NEW

JERSEY, Petitioners,

DR. LOUIS SULLIVAN, or his successor, Secretary of the United States

Department of Health and Human Services,

Respondent.

THE STATE OF NEW YORK, THE CITY OF NEW YORK,

THE NEW YORK CITY HEALTH & HOSPITALS CORP,

Petitioners,

—VvV.—

DR. LOUIS SULLIVAN, or his successor, Secretary of the United States

Department of Health and Human Services,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE THE AMERICAN

PUBLIC HEALTH ASSOCIATION,

NOW LEGAL DEFENSE AND EDUCATION FUND, et al.

IN SUPPORT OF THE PETITIONS

(LIST OF AMICI CONTINUE ON NEXT PAGE)

Of Counsel:

Nadine Taub

Rutgers University

School of Law

15 Washington Street

Newark, New Jersey 07102

Sarah E. Burns, Legal Director

NOW Legal Defense and

Education Fund

99 Hudson Street

12th Floor

New York, New York 10013

John H. Hall

Counsel of Record

Geoffrey H. Coll

Randi J. Roberts

Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

(212) 909-6000

Attorneys for Amici Curiae

AMICI CURIAE

The American Association of

University Women

American Ethical Union

American Humanist Association

American Jewish Committee

American Jewish Congress

American Medical Women’s

Association, Inc.

American Nurses’ Association

Americans for Religious Liberty

Asian American Legal Defense and

Education Fund

The Association of Reproductive

Health Professionals

The Association for Women in

Psychology

Boston Women’s Health Book

Collective

The California Coalition of Nurse

Practitioners

Catholics for a Free Choice

Center for Population and Family

Health, Columbia University

The Coalition of Labcr Union Women

Comision Femenil Mexicana Nacional,

Inc.

Connecticut Women’s Education and

Legal Fund, Inc.

The Coordinating Center for Women

in Church and Society

Equal Rights Advocates, Inc.

Family Planning Advocutes of New

York State

Lambda Legal Defense & Education

Fund, Inc.

The League of Women Voters of the

United States

The Lymphoma Foundation of

America

Madelyn Miller, CSW ACSW

NAACOG: The Organization for

Obstetric, Gynecologic, and

Neonatal Nurses

The National Abortion Rights Action

League

The National Association of Nurse

Practioners in Reproductive Health

The National Center for Lesbian

Rights

The National Council of Jewish

Women

The National Federation of Temple

Sisterhoods— District 3

The National Law Center on

Homelessness and Poverty

The National Lawyers Guild

The National Woman’s Party

The National Women’s Conference

Committee

The National Women’s Health

Network

The National Women’s Law Center

National Women’s Political Caucus

New Jewish Agenda

New York State Republican Family

Committee

Northwest Women’s Law Center

Puerto Rican Legal Defense and

Education Fund

Religious Coalition for Abortion

Rights

Professor Deborah L. Rhode

(Stanford Law School)

Professor Barbara Katz Rothman

(Sociology Dept., Baruch College)

Sex Information and Education

Council of the United States

The Southern California Women’s

Law Center

The Wisconsin Nurse Practitioners in

Reproductive Health

Women’s Equal Rights Legal Defense

and Education Fund

The Women’s Law Center, Inc.

The Women’s Law Project

The Women’s Legal Defense Fund

The YWCA of the U.S.A.

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ..............ce0000:

REASONS FOR GRANTING THE WRIT ..........

Il. THE DECISION BELOW RAISES ISSUES

OF CRITICAL NATIONAL IMPORTANCE

BECAUSE THE REGULATIONS AT ISSUE

JEOPARDIZE THE HEALTH OF WOMEN,

INTERFERE WITH THE INTEGRITY OF

THE PHYSICIAN-PATIENT RELATION-

SHIP AND SEVERELY DIMINISH THE

AVAILABILITY OF QUALITY HEALTH

CARE FOR LOW-INCOME WOMEN ......

A. Section 59.8’s Prohibition of Abortion

Counseling and Referral Jeopardizes the

Health of Women Served by Title X

CE re

B. Section 59.8 of the Regulations Interferes

with the Integrity of the Physician-Patient

Relationship by Forcing Physicians to

Depart from their Professionai Code of

Ethics, Preventing Them from Exercising

Their Best Judgment and Exposing Them

to Liability for Malpractice..............

C. The Regulations Will Engender a Two-

Tiered System of Health Care by Severely

Diminishing the Availability of Quality

Family Planning Services for Low-Income

Il. THE DECISION BELOW CONTRAVENES

RULINGS OF THIS COURT THAT PRO-

TECT THE PHYSICIAN-PATIENT DIA-

LOGUE REGARDING A WOMAN'S

DECISION TO TERMINATE HER PREG-

MANY 2. cccccccccccccccccccccccccevcnces

CONCLUSION ....-.eccccccccccccccnccenseccscees

PAGE

TABLE OF AUTHORITIES

Cases PAGE

Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807

GAAS ke RRR oS 14

Berman v. Allen, 8 N.J. 421, 404 A.2d 8 (N.J. 1979) 14

Cammarano v. United States, 358 U.S. 498 (1959) ... 19

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert.

Gs Se He Ie Gio dh ceeccccccsccctecus 10

City of Akron v. Akron Center for Reproductive

Health Inc., 462 U.S. 416 (1983) ................. 10, 17

Cornelius v. NAACP Legal Defense and Education

Fume, Get., 473 U.S. FEB CIGES) nc ccccccecccccess 19

Doe v. Bolton, 410 U.S. 179 (1973)................. 17

Goldberg v. Ruskin, 128 Ill. App. 3d 1029, 471 N.E.2d

530 (Ill. App. Ct. 1984), aff’d, 113 Ill. 2d 482, 499

ee i dae bedcees 13

Harris v. McRae, 448 U.S. 297, reh. den., 448 U.S.

eC he Cheah bneg Gs bes bueennviede ane new 16, 19

Lindquist v. Dengel, 92 Wash. 2d 257, 595 P.2d 934

I a a a a a wale 14

Maher v. Roe, 432 U.S. 464 (1977)................. 17, 19

Manion v. Tweedy, 257 Minn. 59, 100 N.W.2d 124

Ce ee eee ee ee ce eee 14

Massachusetts v. Secretary of Health and Human Ser-

vices, No. 88-1279, slip. op. (Ist Cir. March 19,

PE FE aGhae seb OUENSUNs cheer eeesameneh daueess passim

PAGE

New York v. Sullivan, 889 F.2d 401 (2d Cir. 1989) .. 17

Perry v. Sinderman, 408 U.S. 593 (1972)............ 17

Phillips v. United States, 508 F. Supp. 544 (D.S.C.

Ph ii Caen oenteds Ghee hens be NtheNesoneeNedeese 13

Poe v. Ullman, 367 U.S. 497 reh’g denied, 368 U.S.

ee ME wvccdedccussscntesceuedtieeveveetecess 19

Regan v. Taxation with Representation of Wash., 41

GED, SE CI o vec cecrccnrecsccccceccnssussvess 19

Robak v. United States, 658 F.2d 471 (7th Cir. 1981) 13

Roe v. Wade, 410 U.S. 113, reh’g denied, 410 U.S. 959

Ss id ben 640.508 cnwheeebeeaeekeeesedsdecceress 17

Sherbert v. Verner, 374 U.S. 398 (1963)............. 17

Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (N.H.

NS cb eh vhdedb000ere ss OR ea redsnsenedeteretes ees 14

Speiser v. Randall, 357 U.S. 513 reh’g denied, 358 U.S.

BP MED cb be vce veundedededececseasoevodeseees 17

Steele v. United States, 463 F. Supp. 330 (D. Alaska

Serre rr reTT CTT TT TTT TTT Ti 14

Thomas v. Review Board of the Indiana Employment

Security Division, 450 U.S. 707;/(1981) ..........-- 17

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986) ......-----+++ 10, 18

Webster v. Reproductive Health Services, 109 S. Ct.

SED CITED occ cc ccccceccccwccccscccccescncoscess 16, 17

PAGE

Whalen v. Roe, 429 U.S. 589 (1977)................ 17

Federal Statutes, Regulations and Guidelines

42 C.F.R. §§ 59.1 ef. seq. (1989).......ccccccccccee passim

United States Department of Health and Human Ser-

vices, Program Guidelines for Project Grants for

Family Planning Services § 9.4 (1981) .......... Sate 15

Other Authority

American Academy of Pediatrics, Committee on Ado-

lescence, Counseling the Adolescent About Preg-

nancy Options, 83 Pediatrics 135 (Jan. 1989) ...... 6

American College of Obstetricians and Gynecologists,

Standards for Obstetric—Gynecologic Services (6th

i ind sec caukawddawsceicnd koe ccslenwces 6, 11

American College of Obstetricians and Gynecologists,’

Statement of Policy: Further Ethical Considerations

in Induced Abortion (Dec. 1977)...........0c0000- 1]

American Medical Association, Current Opinions of

the Council on Ethical and Judicial Affairs of the

American Medical Association (1989).......... 10, 11, 12

Andrews, Informed Consent Statutes and the Decision-

making Process, 5 J. of Legal Medicine 163 (1984). 13

Clinical Obstetrics (C. Pauerstein ed. 1987).......... 7

S. Elias & G. Annas, Reproductive Genetics and the

Se ED Eh hanes obs eae nscadedisehebansdadcs 14

Forrest, The Delivery of Family Planning Services in

the United States, 20 Fam. Plan. Persp. 91 (1988) . 15

Fort, Morrison, Berreras, Diggs & Fish, Counseling the

Patient With Sickle Cell Disease About Reproduc-

tion: Pregnancy Outcome Does Not Justify the

Maternal Risk, 111 Am. J. of Obstetrics and Gyne-

CORR Tee GE ree. BOVE) cc cccccccccccccccscces

Genetics in Obstetrics and Gynecology (Simpson ed.

POT EE Ey eT ee aT hme

Katz, Physician-Patient Encounters ‘‘On a Darkling

Plain,’’ 9 W. New Eng. L. Rev. 207 (1987) .......

Maternal-Fetal Medicine (R. Creasey & R. Resnik 2d

Ck Be cnedeavanddeueedeendedéds6eescdddaueces

Medical Complications During Pregnancy (G. Burrow

i Sg ae cine ane

Minkoff, Care of Pregnant Women Infected With

Human Immunodeficiency Virus, 258 J. of Am.

Se Ce SE cn. Donn ccdsaneceuted ences

Note, The Title X Family Planning Gag Rule: Can the

Government Buy Up Constitutional Rights?, 41

a a, i ce besveutds

N.Y. Times, Jan. 8, 1990 at Al, col. 1.............

Obstetrics & Gynecology (D. Danforth & J. Scott Sth

ak tnebueuehGeeeddins ceeds tected dees

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical and Behavioral

Research, Making Health Care Decisions: A Report

on the Ethical and Legal Implications of Informed

Consent in the Patient-Practitioner Relationship

Ph ncdsdesnadisb edi abasanveeessodpesibeese<

Williams & Britan, Cancer and Pregnancy, 12 Clin.

PY GE CE ob ccvcccececseccenseeesnes

PAGE

Vii

Williams Obstetrics (J. Pritchard, P. MacDonald & N.

Se ee A ED ovcdbeudentecdaesddeedssdues

PAGE

INTEREST OF AMICI CURIAE

This brief is filed on behalf of 53 individuals and organiza-

tions, including associations of health care professionals dedi-

cated to the advancement of public health across the United

States and not-for-profit organizations committed to impruv-

ing the health and circumstances of women. These organiza-

tions, which represent thousands of women and men,

including patients, physicians and other health care profes-

sionals, have joined together to urge this Court to grant the

writ sought by Petitioners Dr. Irving Rust, et a/. (89-1391)

and the State of New York, ef a/. (89-1392).

This case presents issues of critical national importance

because implementation of the Title X regulations at issue

will have a devastating impact throughout the country on the

health of women seeking medical advice and care at family

planning clinics receiving Title X funds. By censoring coun-

seling and referrals regarding abortion, the regulations jeop-

ardize not only the quality of health care provided at Title

X-funded clinics but also their pregnant patients’

constitutionally-protected right to decide, in consultation with

a qualified physician, whether or not to terminate a preg-

nancy.

The American Public Health Association’ and other amici

organizations and individuals dedicated to the advancement

of public health in the United States are particularly con-

cerned that, by depriving women of necessary information

and services and assaulting the integrity of the physician-

patient relationship, the regulations will create a health crisis

for women served by Title X family planning clinics.

NOW Legal Defense and Education Fund and other amici

organizations and individuals committed to improving the

condition of women are particularly concerned that the regu-

lations unduly interfere with the fundamental right to repro-

ductive choice essential to the health and lives of women

1 The American Public Health Association is a plaintiff-appellee in

Massachusetts v. Secretary of Health and Human Services, No. 88-1279, slip.

op. (Ist Cir. March 19, 1990).

using Title X-funded clinics. (Further statements of interest

of amici are set forth at Appendix A.)

Amici have the consent of the parties to file this brief. Let-

ters of consent have been filed separately in this Court.

SUMMARY OF ARGUMENT

This Court should grant the writ sought by Petitioners.

The decision below raises issues of grave national importance

because the regulations at issue jeopardize the health of

women, interfere with the integrity of the physician-patient

relationship and severely diminish the availability of quality

health care for low-income women. In addition, the decision

below conflicts with rulings of this Court that protect from

undue governmental influence and distortion the physician-

patient dialogue regarding a woman’s decision to terminate

her pregnancy.

Amici rely on the Statement of the Case set forth in the

Petitions. Amici also support and will not reiterate the argu-

ments set forth in the Petitions and Supplements to the Peti-

tions for Writ of Certiorari regarding the separation

requirement’s impermissible burden on speech, the Secre-

tary’s lack of authority to promulgate the challenged regula-

tions and the existence of conflict between the circuits.

The organizations of health care professionals and women

that have joined together as amici are uniquely qualified to

address the effect of the regulations on women served by

Title X programs, doctors and other health care professionals

who work in Title X programs, and the quality of care at

family p!anning clinics that receive Title X funds. Amici sub-

mit this brief to focus this Court’s attention on the uncon-

troverted evidence ignored by the Court of Appeals for the

Second Circuit that demonstrates the severe harm the regula-

tions will inflict on the communities served by Title X family

planning clinics.

REASONS FOR GRANTING THE WRIT

‘

I. THE DECISION BELOW RAISES ISSUES OF CRITI-

CAL NATIONAL IMPORTANCE BECAUSE THE

REGULATIONS AT ISSUE JEOPARDIZE THE

HEALTH OF WOMEN, INTERFERE WITH THE

INTEGRITY OF THE PHYSICIAN-PATIENT RELA-

TIONSHIP AND SEVERELY DIMINISH THE AVAIL-

ABILITY OF QUALITY HEALTH CARE FOR

LOW-INCOME WOMEN.

Title X is the primary source of federal support for family

planning and reproductive health services, funding over 3,900

clinics nationwide and serving nearly five million low-income

women per year.” Because section 59.8 of the regulations at

issue in this case prohibits abortion counseling and referral

and requires referral for prenatal care, the millions of low-

income pregnant women served by Title X clinics will receive

incomplete and biased medical advice. Section 59.8 forbids

health care professionals in all these programs from inform-

ing their patients of the availability of abortion, and even

from telling them where they can get abortion-related infor-

mation. See 42 C.F.R. § 59.8(a)(1) (1989). Irrespective of the

patient’s medical condition, personal wishes and needs, the

regulations absolutely prohibit professionals in Title X pro-

grams from providing any abortion counseling or referral.

See 42 C.F.R. §§ 59.8(a)(4) (1989). Even when women

request information about abortion, the clinic may only tell

them that ‘‘the project does not consider abortion an appro-

priate method of family planning and therefore does not

counsel or refer for abortion.’’ 42 C.F.R. § 59.8(b)(5) (1989).

At the same time that they require abortion-related infor-

mation to be withheld, the regulations also compel Title X

programs to provide a pregnant woman with a list of prena-

tal care providers ‘‘that promote the welfare of mother and

2 ~=s*Title X served 4.3 million low-income women in 1988. The Title X

target population consists of an estimated 14.5 million women at risk of

unintended pregnancy, including 5 million adolescents between the ages of 15

and 19. Note, The Title X Family Planning Gag Rule: Can the Government

Buy Up Constitutional Rights?, 41 Stan. L. Rev. 401, 408 (1989).

unborn child.’’ 42 C.F.R. § 59.8(a)(2) (1989).’ This referral

list must include all prenatal care providers that do not per-

form abortions and it cannot include providers that offer

abortion as their ‘‘principa] business.’’ 42 C.F.R. § 59.8(a)(3)

(1989).

A. Section 59.8’s Prohibition of Abortion Counseling and

Referral Jeopardizes the Health of Women Served by

Title X Clinics.

By mandating silence about abortion while simultaneously

compelling referral for prenatal care, section 59.8 will lead

many low-income pregnant women served by Title X pro-

grams to wrongly believe that abortion is not a safe, legal

option. Even those women who discover that abortion is an

available alternative will suffer delay and increased health

risks. In particular, section 59.8 will jeopardize the health of

pregnant women who have complicating physical conditions

that make abortion a medically advisable alternative to child

birth.

The most vulnerable women in our society will be directly

affected by section 59.8’s prohibition on abortion counseling.

Approximately ninety percent of the women served by Title

X programs have incomes below 150 percent of the poverty

line, Massachusetts v. Secretary of Health and Human Ser-

vices, No. 88-1279, slip op. at 6 (Ist Cir. March 19, 1990)

(citations omitted), and over thirty percent are teenagers.

Affidavit of Dr. Melita Gesche, Director of the Bureau of

Reproductive Health of the New York State Department of

Health, 47 (545A, Ex, C-558A).* Low-income women and

teenagers are least able to obtain adequate alternative health

3. + The sole exception to this mandatory referral for prenatal care is

when ‘‘emergency care is required.’’ In such circumstances, a clinic is permit-

ted to refer a patient to ‘‘an appropriate provider of emergency medical ser-

vices.’’ 42 C.F.R. § 59.8(a)(2) (1989). See discussion infra, n.14.

4 Citations to the appendix that accompanied the Petition of Dr. Irv-

ing Rust ef al. and the Petition of the State of New York ef al. are made to

the page number therein as ‘*(__a).’’ Citations to other materials in the rec-

ord below will be to ‘‘(__A)”’ (referring to the joint appendix filed in the

Second Circuit) or by name and date of document, if in the record but not

included in either appendix.

care and bear the substantial economic burden of supporting

and raising unwanted children. Moreover, the communities in

which these women live suffer from disproportionately high

rates of teenage pregnancy and epidemic health problems,

such as AIDS, which increase the risks associated with preg-

nancy. Declaration of Dr. George Morley, President of the

American College of Obstetricians and Gynecologists, 8,

10, 16 (661A-63A); Declaration of Prof. Howard Minkoff,

Professor of Obstetrics and Gynecology, State of New York

Health Science Center, 4 5 (647A).

Section 59.8’s requirement that biased and incomplete

information be presented to the low-income women served by

Title X programs creates a substantial obstacle to their deci-

sion whether or not to terminate a pregnancy. It takes little

imagination to understand how intimidation, concern for

imposing on the physician’s time, fear of offending him or

her, or a lack of knowledge necessary even to begin to ques-

tion their doctor’s advice can keep Title X patients from ask-

ing about abortio Katz, Physician-Patient Encounters

“On a Darkling » 9 W. New Eng. L. Rev. 207, 222

(1987). Since those Title X patients who do ask about the

availability of abortion may be told only that ‘‘the project

does not consider abortion an appropriate method of family

planning and therefore does not counsel or refer for abor-

tion,’’ even they may believe—at least for a critical time

period—that abortion is not appropriate for them or that

they have no safe alternative to carrying their pregnancy to

term. Declaration of Dr. Irving Rust, Medical Director of the

Bronx Center of Planned Parenthood, New York City, 4 15

(92a). Believing they have no other alternatives, pregnant

patients may even turn to life-threatening ‘‘home remedies’’

such as hazardous chemical douches or falling down stairs to

avoid having unwanted children. Declaration of Dr. Irving

Rust 44 11 (92a), 14-16 (704A-705A). For all women, section

59.8 interferes with their ability to decide between abortion

and childbirth by depriving them of counseling essential to an

informed choice.

Teenagers are especially vulnerable to the misleading mes-

sage of the regulations. They are often scared, intimidated

and alone when faced with pregnancy. Presented with the

biased and misleading advice mandated by the regulations, an

adolescent patient may well feel betrayed and uncared for by

her physician, the very person she thought she could trust in

her time of need. Declaration of Marilyn Bennett, Executive

Director of Health Services, Hudson County, New Jersey,

q{ 19-22 (SOOA-SO1A); Affidavit of Dr. Richard Narkewicz,

President of the American Academy of Pediatrics, | 4 (Feb-

ruary 2, 1988).° The regulations will undermine teenagers’

confidence in Title X clinics and discourage many teenagers

from ever returning for family planning services. Affidavit of

Dr. Richard Narkewicz q 4(c) (February 2, 1988).

By giving women inappropriate referrals to prenatal care

providers, the regulations will also delay those women who

are ultimately able to obtain abortions. Declaration of Dr.

Stanley Henshaw, Deputy Director of Research, Alan Gutt-

macher Institute, 44 12, 15, 21 (600A-604A). Section 59.8 will

require women to pursue referral after referral until they

locate a doctor willing to perform abortions.® Misleading

information is particularly problematic for the low-income

women served by Title X programs who often lack access to

a car or even a telephone and live in rural areas miles from

the nearest family planning center. Declaration of Francine

§ Recognizing the importance of counseling to adolescents with

unwanted pregnancies, physicians have adopted more detailed and stringent

ethical standards for their relationships with adolescents. See American Col-

lege of Obstetricians and Gynecologists, Standards for Obstetric-Gynecologic

Services 22 (6th ed. 1985) (‘‘{[RJecommendations should be specifically

directed toward [the pregnant adolescents’] needs. Sensitivity, perceptive and

in-depth discussions with the patient and those supporting her may be neces-

sary.’’); American Academy of Pediatrics, Committee on Adolescence,

Counseling the Adolescent About Pregnancy Options, 83 Pediatrics 135, 136

(Jan. 1989) (‘A warm and accepting environment in which the adolescent

feels sufficiently secure to explore her own feelings about pregnancy and its

consequences is essential.*’).

6 The difficulty in locating an alternative provider of abortions is

increasing as fewer doctors are willing to perform abortions for fear of har-

assment. N.Y. Times, Jan. 8, 1990 at Al, col. 1. It is not uncommon in many

parts of the country for women to travel hundreds of miles to obtain an

abortion. /d.

ey ere Qe ce

Stein, Executor Director of Planned Parenthood of Westches-

ter and Rockland Counties, New York, 4 10 (February 4,

1988).

Delay can push patients into the second trimester of preg-

nancy, making an abortion more risky, costly and difficult to

obtain. Declaration of Dr. George Morley 4 12 (79a).’ Delay

is particularly harmful to pregnant adolescents, whose fear

and uncertainty often result in a late initial visit to the clinic.

Id. at 4 12 (79a).

The regulations will have perhaps their cruelest effect

on those low-income pregnant women who have serious

complicating conditions, such as hypertension,® eclampsia’,

diabetes,’ congenital heart disease,'' cancer,’? sickle-cell ane-

7 Serious health risks go hand-in-hand with any delay. The mortality

risk for abortion increases by 50% each week after the eighth week of preg-

nancy and the risk of major complications increases by approximately 30%

each week after the eighth week. Declaration of Dr. George Morley 44 12-13

(79a).

8 Hypertension complicates about eight to ten percent of pregnancies.

Clinical Obstetrics 645 (C. Pauerstein ed. 1987). It may either be induced or

aggravated by the pregnancy. While the hypertension can be controlled in the

majority of cases, hypertensive pregnant women are at higher risk for cere-

brovascular accidents (strokes), abruptio placentae (premature separation of

the placenta from the uterus), and disseminated intravascular coagulation (a

severe bleeding disorder). Jd. at 655-56; Maternal-Fetal Medicine 801 (R.

Creasey & R. Resnik 2d ed. 1989). See Declaration of Dr. Allan Rosenfield,

Professor of Obstetrics-Gynecology and Public Health, Columbia University

School of Public Health, {4 10-11 (681A-683A).

9 A severe form of pregnancy-induced hypertension called eclampsia

complicates about one tenth of one percent (0.1%) of deliveries. Williams

Obstetrics $39 (J. Pritchard, P. MacDonald & N. Grant 17th ed. 1985).

Eclampsia is characterized by headaches, visual disturbances, abdominal

pain and seizures, and has a maternal mortality rate of up to 17% depending

upon the adequacy of prenatal care and access to health care facilities. Clini-

cal Obstetrics, supra note 8, at 647.

10 Pregnancy-induced diabetes occurs in approximately one to three

percent of pregnancies. Medical Complications During Pregnancy 41 (G.

Burrow & T. Ferris 3d ed. 1988). In addition, approximately 1.5 million

women of childbearing age are known to have diabetes. Maternal-Fetal

Medicine, supra note 8, at 925. A pregnant woman with diabetes is four

times as likely to develop hypertensive disease; she is also more likely to

develop infections of a greater severity, injure her birth canal during vaginal

delivery, require a caesarian section, and hemorrhage after delivery.

(Footnotes 1] and i2 appear on next page)

mia,’’ kidney disease and certain respiratory, urinary and

neuromuscular disorders. Pregnancy greatly increases the

long-term risks associated with each of these diseases, even

when not necessarily generating an immediate health emer-

gency.“

Because pregnancy can also accelerate the course of AIDS

(Acquired Immune Deficiency Syndrome), abortions can pro-

long the lives of pregnant women suffering from AIDS. Dec-

laration of Prof. Howard Minkoff 47 (647A-648A).”

Moreover, pregnant women suffering from AIDS should be

counseled about abortion in the context of the risk that their

Williams Obstetrics, supra note 9, at 600. See Declaration cf Dr. Irving Rust

§{ 17 (JOSA-706A).

11 There is a $0% possibility that the additional stress of pregnancy will

kill women with severe malformations of the heart caused by congenital

heart disease. Obstetrics & Gynecology 231 (D. Danforth & J. Scott Sth ed.

1986). Pregnant women with heart disease are at greater risk of congestive

heart failure, cardiac infections and arrhythmias (abnormal heart rhythms).

Id. at 492-97; Maternal-Fetal Medicine, supra note 8, at 749-58.

12 Cancer is the second leading cause of death among women in their

reproductive years; it can threaten the fetus as well as the woman. Williams

& Britan, Cancer and Pregnancy, 12 Clin. Perinatology. 609 (1985). The che-

motherapy or radiation that may be necessary to preserve the life or health of

a woman with cancer is likely to result in fetal malformation or death.

13. Pregnant women with sickle-cell anemia experience more frequent

and severe crises, especially in bones, and are more susceptible to pneumonia

and urinary tract infections, increasingly severe anemia, congestive heart fail-

ure, pre-eclampsia, and pulmonary complications such as embolus. Declara-

tion of Dr. Allan Rosenfield 4 14 (684A); see also Fort, Morrison, Berreras,

Diggs and Fish, Counseling the Patient With Sickle Cell Disease About

Reproduction: Pregnancy Outcome Does Not Justify the Maternal Risk, \\1

Am. J. of Obstetrics and Gynecology 324 (Sept.-Dec. 1971).

14. Hypertension, pre-eclampsia, diabetes, congenital heart disease or

cancer when discovered in conjunction with pregnancy do not constitute an

‘“‘emergency”’ under the regulations, requiring referral to the emergency

room of a nearby hospital. Declaration of Dr. Irving Rust 4 17 (92a-93a);

Declaration of Dr. Allan Rosenfield 44 21-22 (687A-689A). The emergency

exception is far too subjective and narrow to prevent the harm caused by the

regulations’ prohibition on abortion counseling and referral.

1S See Minkoff, Care of Pregnant Women Infected With Human

Immunodeficiency Virus, 258 J. of Am. Med. Ass’n 2714 (1987).

—

newborn babies will be HIV-infected.'*® Similarly, a pregnant

woman infected with a disease such as rubella, herpes, or

syphilis that could have a devastating effect on her fetus

should also be counseled about her options.'’ Even in these

circumstances, the regulations prevent a woman from being

counseled about the option of abortion.

While professionals in Title X clinics are permitted to dis-

close the existence of AIDS or other complicating conditions

to their patients, they may not discuss abortion as an alterna-

tive to carrying the pregnancy to term. Declaration of Dr.

George Morley 4 17 (664A); Declaration of Prof. Howard

Minkoff 4 8 (648A); Declaration of Dr. Allan Rosenfield

44 21-22 (687A-689A). As a result, women with serious com-

plicating conditions are prevented from learning that their

pregnancy poses substantial health risks that may require an

abortion to save their life or preserve their health. Section

59.8’s mandated referral to prenatal care may also reinforce

the false impression that the pregnancy does not threaten

their health or the health of the fetus.

The regulations create obstacles which prevent women

served by Title X programs from freely choosing between

abortion and childbirth. Left unreviewed by this Court, the

decision below will have a devastating impact on the health

of these low-income pregnant women, including those with

life-threatening medical complications. Amici respectfully ask

this Court to grant the writ sought by petitioners, rather than

turn its back on the myriad dangers which threaten the health

and well-being of pregnant women.

16 _~—‘ Thirty to fifty percent of the babies whose mothers are HIV-infected

will also develop AIDS. Exhibit F to Affidavit of Dr. Melita Gesche (New

York State Department of Health, Newborn Seroprevailence Study (1988))

(S63A).

17.‘ For example, a fetus exposed to a rubella infection during the first

four weeks of gestation has a 61% chance of developing congenital defects,

including ocular and cardio-vascular anomalies, mental retardation, and

early onset diabetes. Genetics in Obstetrics and Gynecology 229-30 (Simpson

ed. 1982).

B. Section 59.8 of the Regulations Interferes with the Integ-

rity of the Pl. ysician-Patient Relationship by Forcing Phy-

sicians to Depart from Their Professional Code of Ethics,

Preventing Them from Exercising Their Best Judgment

and Exposing Them to Liability for Malpractice.

This case raises the important question of whether the fed-

eral government, through funding restrictions on speech and

information about abortion, can legitimately compel health

care professionals practicing in Title X clinics to violate their

ethical standards and ignore individual patients’ needs. In

City of Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416, 431 (1983), this Court declared that the

government’s discretion to regulate abortions does not permit

it to adopt regulations ‘‘that depart from accepted medical

practice.”’ In the face of this admonition, section 59.8

requires Title X practitioners to violate their professional

code of ethics, prevents them from exercising their best medi-

cal judgment and exposes them to liability for malpractice.

Under principles of medical ethics and the law of informed

consent, a physician is obliged to render care in a manner

respectful of his or her patient’s right to self-determination.

The physician must disclose sufficient information regarding

the patient’s condition and treatment alternatives to permit

the patient to make an informed decision about appropriate

treatment and to know where it can be obtained.'* Nowhere

is this more important than when the patient is a pregnant

woman facing a medical decision with dramatic and irrevers-

ible life consequences. See Thornburgh v. American College

of Obstetricians and Gynecologists, 476 U.S. 747, 772 (1986)

(‘‘few decisions are . . . more basic to individual dignity and

autonomy”’ than a woman’s reproductive choice). The preg-

nant woman’s physician plays a central role in her decision-

making process by providing her with the crucial medical

facts relevant to her decision whether to terminate her preg-

nancy. By prohibiting physicians and other health care work-

18 See, e.g., American Medical Association, Current Opinions of the

Council on Ethical and Judicial Affairs of the American Medical Association

4 8.07, at 31-32 (1989) [hereinafter AMA Opinions]; Canterbury v. Spence,

464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972).

ers in Title X clinics from giving a pregnant patient complete

medical information regarding childbirth and abortion, sec-

tion 59.8 denies that patient the opportunity to intelligently

make the personal and self-defining decision of whether or

not to carry a pregnancy to term.”

Section 59.8 thus compels Title X physicians to breach

their code of ethics in every case of pregnancy, even if no

complicating condition exists. Contrary to professional stan-

dards that require balanced counseling and discussion of the

full range of 9)tions to which a woman is entitled when preg-

nancy is diagnosed, the regulations require Title X health

care providers to direct their counseling solely towards pre-

venting abortion and promoting childbirth.”

The regulations prevent Title X physicians from properly

caring for their patients whenever a woman is undecided and

particularly when a pregnancy is unwanted.”' Section 59.8’s

19 When divorced from the abortion controversy, a physician’s breach

of ethics for failure to communicate complete, unbiased information essen-

tial to a medical decision becomes immediately apparent. Imagine if the gov-

ernment were to decree that oncologists working in federally-funded clinics

could not mention chemotherapy as a treatment alternative to cancer

patients.

20 The American College of Obstetricians and Gynecologists standard

of care establishes that:

Counseling directed solely toward either promoting or preventing

abortion does not sufficiently reflect the full nature of the problem or

range of options to which the patient is entitled. Appropriately bal-

anced counseling, combined with available and accessible facilities,

provide the minimum base for the opportunity to make a truly

informed choice.

American College of Obstetricians and Gynecologists, Statement of Policy:

Further Ethical Considerations in Induced Abortion (Dec. 1977) (emphasis

added). See also AMA Opinions, supra note 18, 4 8.07, at 31-32 (1989); Affi-

davit of Dr. James H. Sammons, Executive Vice President of the American

Medical Association 4 3 (80a-81a). These ethical obligations apply regardless

of the physicians’ source of income or payment.

21 Professional standards provide that ‘‘[i]n the event of an unwanted

pregnancy, the physician should counsel the patient about her options of

continuing the pregnancy to term and keeping the infant, continuing the

pregnancy to term and offering the infant for legal adoption, or aborting the

pregnancy.’’ American College of Obstetricians and Gynecologists, S/an-

dards for Obstetric-Gynecologic Services 57 (6th ed. 1985).

compelled disclosure of information intended to promote the

health of the ‘‘mother’’ and ‘‘unborn child’’ and referrals of

women with unwanted pregnancies to prenatal care providers

interfere with physicians’ ethical responsibility to respect the

dignity of these patients.” Even if a patient requests abortion

information, her physician must mechanically recite the Sec-

retary’s prescribed response: ‘‘the project does not consider

abortion an appropriate method of family planning and

therefore does not counsel or refer for abortion.’’ 42 C.F.R.

§ 59.8(b)(5S) (1988). The regulations thus compel physicians to

insult their pregnant patients’ dignity by forcing these women

to listen to irrelevant and at times painful information and by

depriving them of information necessary to make and effec-

tuate an informed decision.

By forcing Title X physicians to ignore their pregnant

patient’s need for information necessary to her decision and

subsequent care—a patient the physician knows may have no

affordable and safe health care alternative—the regulations

require physicians to disregard their most fundamental ethical

obligation: not to neglect a patient.”> Whether or not physi-

cians favor or perform abortions themselves, they are obli-

gated to refer a patient who chooses to terminate her

pregnancy to a competent physician who will be responsive to

her medical and psychological needs.“ Because any delay can

be dangerous, a frank discussion of medical risks and alter-

natives becomes most critical to the continued health of the

patient when a physician terminates his care and provides a

22. American Medical Association, Principles of Medical Ethics, in

AMA Opinions, supra note 18 at ix (‘‘A physician shall be dedicated to pro-

viding competent medical service with compassion and respect for human

dignity.’’).

23. AMA Opinions, supra note 18, 4 8.10, at 33 (‘“Once having under-

taken a case, the physician should not neglect the patient. . . .”’); Declara-

tion of Dr. Jay Katz, Professor of Law and Psychoanalysis, Yale University,

q 6 (83a-84a).

24 See AMA Opinions, supra note 18, 4 3.04 at 14; President’s Com-

mission for the Study of Ethical Problems in Medicine and Biomedical and

Behavioral Research, Making Health Care Decisions: A Report on the Ethi-

cal and Legal Implications of Informed Consent in the Patient-Practitioner

Relationship, vol. 1 at 76 (1982) [hereinafter President’s Commission].

referral. The regulations forbid Title X practitioners from

fulfilling this obligation and facilitating their patients’

constitutionally-protected reproductive choice.

Compliance with section 59.8 will not only result in ethical

violations but it will also prevent physicians in many situa-

tions from exercising and acting in accordance with their best

medical judgment. The regulation precludes physicians from

providing necessary counseling to a woman whose pregnancy

will exacerbate an existing complicating condition. Moreover,

physicians must provide even the patient for whom abortion

is medically indicated with an undifferentiated list of prenatal

care providers, some of which may perform abortions but

none ‘‘whose principal business is the provision of abor-

tions.’ 42 C.F.R. § 59.8(a)(3) (1989).”°

Consequently, by requiring physicians to withhold even

medically advisable information and provide inappropriate

referrals, section 59.8 will expose Title X physicians to liabil-

ity for medical malpractice and violations of informed con-

sent for any resulting harm to their pregnant patients.”

Physicians have been found liable for failing to inform par-

ents at risk of giving birth to a child with genetic or other

abnormalities of prenatal diagnostic tests and the option of

abortion.”’ Physicians who fail to refer immediately a woman

25 Because 70% of all abortions are performed by providers whose

‘principal business’’ is abortions, the regulations will obstruct access to the

majority of providers, particularly the most proficient and experienced. Dec-

laration of Dr. Stanley Henshaw, Deputy Director of Research for the Alan

Guttmacher Institute, New York City, | 12 (600A).

26 Under the doctrine of informed consent, embodied in state tort law

nationwide, a physician may be liable for failure to inform patients of all

alternative treatment options, failure to provide adequate inf »rmation

regarding health risks (including the risk of not undergoing a certain medical

procedure), and failure to provide appropriate referrals. See President’s

Commission, supra note 24, Appendix L at 193; Andrews, /nformed Consent

Statutes and the Decisionmaking Process, § J. of Legal Medicine 163 (1984).

27 ~=See, e.g., Robak v. United States, 658 F.2d 471 (7th C . 1981) (fail-

ure to diagnose rubella and inform parents of risk to fetus); Phillips v.

United States, $08 F. Supp. 544 (D.S.C. 1981) (failure to advise, counse! and

test for risk of Down’s Syndrome); Goldberg v. Ruskin, 128 Ill. App. 3d

for whom abortion is medically indicated to an appropriate

provider may be liable for the harm and increased risk of a

delayed termination of her pregnancy.”

Left unreviewed by this Court, the decision below will

place practitioners at Title X clinics in an untenable position.

Physicians will either have to comply with the regulations and

thereby depart from accepted standards of medical practice

or leave Title X clinics. The regulations will force those doc-

tors who continue to serve poor women in Title X facilities to

severely compromise the quality of their care. Amici respect-

fully request that the Court grant the writ sought by Petition-

ers to preserve the integrity of the physician-patient

relationship and prevent the regulations from denigrating the

medical profession and undermining the quality of family

planning services provided to low-income women.

C. The Regulations Will Engender a Two-Tiered System of

Health Care by Severely Diminishing the Availability of

Quality Family Planning Services for Low-Income

Women.

If implemented, the regulations will exacerbate the already

critical shortage of quality health care in low-income com-

munities. Local family planning clinics offering comprehen-

1029, 471 N.E.2d 530 (Ill. App. Ct. 1984), aff'd, 113 Ill. 2d 482, 499 N.E.2d

406 (Ill. 1986) (failure to advise parents of tests designed to detect Tay Sachs

disease); Smith v. Cote, 128 N.H. 231, $13 A.2d 341 (N.H. 1986) (failure to

timely diagnose rubella and inform parents of consequences); Berman v.

Allen, 80 N.J. 421, 404 A.2d 8 (N.J. 1979) (failure to inform parents of the

availability of amniocentesis to detect Down’s Syndrome); Becker v. Sch-

wartz, 46 N.Y.2d 401, 386 N.E.2d 807 (N.Y. 1978) (same). See generally S.

Elias & G.J. Annas, Reproductive Genetics and the Law 109-10 (1977).

28 See, e.g., Steele v. United States, 463 F. Supp. 321, 330 (D. Alaska

1978) (failure to refer patient to qualified medical practitioner that results in

delay in treatment is breach of standard of care); Lindquist v. Dengel, 92

Wash. 2d 257, 263, 595 P.2d 934, 937 (Wash. 1979) (‘To delay a referral [to

a specialist when diagnosis indicates such expert treatment is required] could

itself be a breach of the general practitioner's duty.’’); Manion v. Tweedy,

257 Minn. 59, 65, 100 N.W.2d 124, 128 (Minn. 1959) (if physician knows or

should know that a patient’s condition is beyond his knowledge, ability or

capacity to treat, he must advise the patient of necessity of other treatment).

sive health care, funded to a significant degree by Title X,

play a vitally important role in low-income communities. See

Forrest, The Delivery of Family Planning Services in the

United States, 20 Fam. Plan. Persp. 91 (1988). Apart from

Title X-funded facilities, many women and adolescents have

no other health care providers or sources of information

about reproductive and general health care. See e.g., Affida-

vit of Dr. Stephen Joseph, Commissioner of Health for City

of New York, 48 (611A); Declaration of P. Roe 445, 7

(96a); Declaration of M. Roe 4 6 (696A); Declaration of L.

Roe 44 4, 7 (97a).

The regulations endanger the very existence of Title X-

funded clinics in two ways. First, the regulations will severely

impair the clinics’ ability to hire and retain competent health

care professionals by threatening them with censure, loss of

license or legal liability for malpractice. As a result, Title X

programs will be paralyzed by attrition and face the difficult

task of attempting to find suitable replacements. Declaration

of Dr. Jay Katz q 18 (634A); Declaration of Lorraine Tiezzi

4 8(c) (728A).

Second, the regulations’ requirement that Title X-funded

clinics be physically and financially separate from any activity

relating to abortion, 42 C.F.R. § 59.9, seriously threatens

their ability to provide comprehensive reproductive care and,

indeed, remain in operation at all. The measures contem-

plated by the separation requirement, which include the

maintenance of separate physical facilities and separate per-

sonnel, ‘‘will in many cases be prohibitively expensive and

29 Even HHS has acknowledged that ‘‘[f]or many patients, family

planning clinics are their on/y source of health information or medical care.”’

United States Department of Health and Human Services, Program Guide-

lines for Project Grants for Family Planning Services § 9.4 (1981) (39A)

(emphasis added). Recipients of Title X funds routinely provide non-

reproductive medical services to both men and women. Medical services for

women include diagnosis and treatment of sexually transmitted diseases, HIV

testing, screening tests for cervical cancer, breast examinations and self-

breast examination instruction. Medical services for men include vasectomies

and post-surgical follow-up examinations, primary urological examinations,

diagnosis and treatment of venereal disease and other sexually transmitted

infections, and HIV testing. Affidavit of Ruth Klepper, Executive Director

of Upper Hudson Planned Parenthood 4 8-11 (February 5, 1988).

operationally untenable.’’ Declaration of Raymond Fink,

Chairperson of the Medical and Health Research Association

of New York City, Inc., | 13(a) (539A).

The regulations’ attack on the Title X program will rein-

force the dual system of health care that already exists in the

United States. Declaration of Raymond Fink 4 12(a) (536A).

Women of means, unaffected by the regulations, will con-

tinue to have access to sound health care from private practi-

tioners. In contrast, low-income women and adolescents will

have difficulty locating any family planning services or gen-

eral health care at all. Even if they are able to find a family

planning program, they will receive incomplete and biased

information from doctors compelled to disseminate the gov-

ernment’s anti-abortion message at clinics which cannot pro-

vide sound comprehensive reproductive health care. If left

unreviewed, the practical effect of the decision below will be

to endanger the health of Title X clients by diminishing the

availability of comprehensive quality family planning services

in communities already facing a critical shortage of health

care.

ll. THE DECISION BELOW CONTRAVENES RULINGS

OF THIS COURT THAT PROTECT’ THE

PHYSICIAN-PATIENT DIALOGUE REGARDING A

WOMAN’S DECISION TO TERMINATE HER PREG-

NANCY.

This Court should grant the writ sought by Petitioners

because the decision below is contrary to precedent that guar-

antees privacy and First Amendment protection to the

physician-patient dialogue regarding a woman’s decision to

terminate her pregnancy. As demonstrated above, and as the

First Circuit recognizes, the regulations pose a significant

obstacle to a woman’s decision to terminate her pregnancy by

precluding her from obtaining from her physician the very

information she needs to make her constitutionally-protected

reproductive choice. See Massachusetts v. Secretary of Health

and Human Services, siip. op. at 30. Nevertheless, the Sec-

ond Circuit, relying on Webster v. Reproductive Health Ser-

vices, 109 S. Ct. 3040 (1989), Harris v. McRae, 448 U.S. 297,

reh’g denied, 448 U.S. 917 (1980) and Maher v. Roe, 432

U.S. 464 (1977), held that the regulations merely implement a

legitimate funding decision to support childbirth over abor-

tion. See New York v. Sullivan, 889 F.2d 401, 411 (2d Cir.

1989).

In resolving this clear conflict between the circuits, the

Court must be mindful of its previous rulings. This Court has

consistently held that the government cannot obstruct funda-

mental procreative choice by placing a ‘‘governmental obsta-

cle in the path of a woman who chooses to terminate her

pregnancy.”’ Webster, 109 S. Ct. at 3052 (quoting McRae,

448 U.S. at 315). It is equally well-established that the gov-

ernment may not impose such obstacles through public-

funding restrictions any more than it can through other

means. See Thomas v. Review Board of the Indiana Employ-

ment Security Division, 450 U.S. 707 (1981) (conditions on

public benefits that inhibit or deter constitutionally-protected

rights are unconstitutional); Perry v. Sinderman, 408 U.S.

593, 597 (1972); Sherbert v. Verner, 374 U.S. 398, 405

(1963); Speiser v. Randall, 357 U.S. 513, 518-19, reh’g

denied, 358 U.S. 860 (1958).

To protect the right at the heart of Roe v. Wade, 410 U.S.

113, reh’g denied, 410 U.S. 959 (1973)—the right to be free

from unwarranted governmental interference in the process

of deciding whether or not to bear a child—this Court has

repeatedly shielded the decisionmaking process from undue

governmental influence and distortion. In City of Akron v.

Akron Center for Reproductive Health Inc., 462 U.S. 416

(1983), this Court struck down a law requiring physicians to

furnish a pregnant woman contemplating abortion with cer-

tain information about the surgical procedure and the physio-

logical characteristics of the fetus, some of which was

misleading. Akron’s ordinance ‘‘unreasonably . . . placed

‘obstacles in the path of the doctor upon whom [the woman

is] entitled to rely for advice in connection with her

decision.’ ’’ Jd. at 444-445 (quoting Whalen v. Roe, 429 U.S.

589, 604 n.33 (1977)). This Court reasoned that ‘‘full vindica-

tion of the woman’s fundamental right necessarily requires

that her physician be given ‘the room he needs to make his

best medical judgment.’ ’’ Jd. at 427 (quoting Doe v. Bolton,

410 U.S. 179, 192 (1973)). That room required preserving the

discretion of a pregnant woman’s physician to provide his or

her patient with information relevant to her particular needs.

Id. at 443. The government’s attempt to structure the

informed consent dialogue was impermissible precisely

because it was ‘‘designed to influence the woman’s informed

choice between abortion and childbirth.’’ Jd. at 444.

In Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986), this Court reaffirmed the

principle that physicians may not be compelled to convey a

distorted message to their patients by withholding essential,

or providing unnecessary or misleading, medical information

designed to influence their patients’ right to reproductive

choice. It therefore invalidated a state statute requiring a

physician to provide a woman with a description of fetal

development and a list of agencies offering alternatives to

abortion. In doing so, this Court found the requirement to be

‘*nothing less than an outright attempt to wedge the [govern-

ment’s] message discouraging abortion into the privacy of the

informed-consent dialogue between the woman and her physi-

cian.’’ Thornburgh, 476 U.S. at 762.

By dictating the precise content of the physician-patient

dialogue, the Title X regulations at issue place an even more

constrictir.g ‘‘strait jacket’? on a Title X physician’s relation-

ship with patients and erect an even more imposing obstacle

to a woman’s choice than did the statute at issue in 7horn-

burgh. Not only do the regulations forbid Title X practition-

ers from counseling women about abortion and providing

appropriate referrals to women who choose it, but they also

demand that physicians furnish a// patients with information

and a list of available providers that promote the health of

‘the mother and unborn child.’’ 42 C.F.R. § 59.8(a)(2)

(1989). The regulations thus compel physicians to provide

biased information and referrals that will be completely unre-

sponsive to the needs and requests of their individual

patients. As discussed in Section I(A), the regulations will

lead some women to believe that abortion is either unavail-

able or inappropriate. For otiners, the provision of misleading

referrals will delay and perhaps even prevent a woman from

obtaining the procedure. Thus, unlike the provisions in

Maher and McRae, the regulations ‘‘create[] a new and

imposing obstacle to abortion.’’ Massachusetts vy. Secretary

of Health and Human Services, slip op. at 43.

Through the medium of funding, the government is

attempting to suppress speech about abortion and to turn

Title X practitioners into spokespersons for the government’s

anti-abortion message, in violation of not only the constitu-

tional right to reproductive choice but also First Amendment

principles. In the words of Justice Douglas, ‘‘[t]he right of

the doctor to advise his patients according to his best lights

seems so obviously within First Amendment rights as to need

no extended discussion.’’ Poe v. Ullman, 367 U.S. 497, 513,

reh’g denied, 368 U.S. 869 (1961) (Douglas, J., dissenting

from a dismissal on technical grounds). By obstructing the

free flow of vital medical information between doctor and

patient, the regulations impermissibly censor speech essential

to both the sound practice of medicine and a woman’s consti-

tutionally protected right to decide whether to terminate a

pregnancy.

Moreover, by simultaneously compelling advice regarding

prenatal care and prohibiting speech about abortion, sections

59.8 and 59.10” discriminate on the basis of viewpoint. They

thus flout this Court’s repeatea warning that the government

may not ‘discriminate invidiously in its subsidies in such a

way as to ai[m] at the suppression of dangerous ideas.”’

Regan v. Taxation With Representation of Wash., 461 U.S.

540, 548 (1983) (quoting Cammarano v. United States, 358

U.S. 498, 513 (1959)); see also Cornelius v. NAACP Legal

Defense & Educ. Fund, 473 U.S. 788, 811-13 (1985). The

suppressive nature of the regulations will be uniquely power-

ful because they target a dependent and vulnerable popula-

tion for whom there are limited, if any, alternative sources of

abortion information.

Left unreviewed by this Court, the decision below will per-

mit the federal government to restructure the physician-

patient dialogue in Title X-funded clinics in a manner

30 = Section 59.10 prohibits the use of Title X funds for activities that

“encourage, promote or advocate abortion,’’ including lobbying, legal

action and disseminating materials. 42 C.F.R. § 59.10(a) (1989).

intended to mislead and intimidate women into relinquishing

their constitutionally protected reproductive choice and con-

tinuing an unwanted, at times dangerous, pregnancy to term.

Amici respectfully urge this Court to review and condemn, as

it has in the past, this ‘‘effort to deter a woman from making

a decision that, with her physician, is hers to make.’’ Massa-

chusetts v. Secretary of Health and Human Services, slip op.

at 34 (quoting Thornburgh, 476 U.S. at 759).

CONCLUSION

For all the foregoing reasons, this Court should grant the

writ of certiorari sought by petitioners.

Dated: May 4, 1990

Respectfully submitted,

John H. Hall

Counsel of Record

Geoffrey H. Coll

Randi J. Roberts

Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

(212) 909-6000

Attorneys for Amici Curiae

Of Counsel:

Nadine Taub

Rutgers University School of Law

15 Washington Street

Newark, New Jersey 07102

Sarah E. Burns, Legal Director

NOW Legal Defense and Education Fund

99 Hudson Street

12th Floor

New York, New York 10013

APPENDIX A

;

ghee

INTEREST OF AMICI CURIAE ORGANIZATIONS

The AMERICAN ASSOCIATION OF UNIVERSITY

WOMEN (‘‘AAUW’’), a nationwide network of 140,000

college-educated women, promotes equity for women and

girls, education and self-development over the life span, and

positive social change. The AAUW supports the right of

every woman and girl to safe and comprehensive reproductive

health care and to be informed of all available reproductive

health care options. AAUW believes that decisions concern-

ing reproductive health care are personal ones and that the

right to make informed decisions should be available to all

women.

AMERICAN ETHICAL UNION is a humanistic religious

and educational movement inspired by the ideal that the

supreme aim of human life is working to create a more

humane society. The Ethical Movement was founded in 1876

in New York City. At present there are approximately 4,000

members nationwide belonging to the Ethical Movement.

AMERICAN HUMANIST ASSOCIATION (‘‘AHA’’) is

an educational and philosophical-religious organization

founded in 1941. The association and its members oppose

interference with the right of medical professionals to provide

information to clients and the right of clients to receive

uncensored counseling from medical professionals in tax-

funded programs. The Association and its members oppose,

as Establishment Clause violations, government regulations

which have the effect of imposing sectarian religious values in

tax-funded programs.

The AMERICAN JEWISH COMMITTEE (‘‘AJC’’) is a

national organization of 40,000 members, founded in 1906

for the purpose of protecting the civil and religious rights of

Jews. The AJC believes that this goal can best be accom-

plished by helping to preserve the constitutional rights of all

Americans, including the fundamental right of access to

abortion on a voluntary basis.

The AMERICAN JEWISH CONGRESS is an organization

of American Jews founded in 1918 to protect the civil, politi-

cal and religious rights of American Jews and all Americans.

For three decades it has vigorously supported reproductive

choice, beginning with a 1958 AJC-led campaign to allow

municipal hospitals in New York City to dispense contracep-

tive devices and advice to patients.

AMERICAN MEDICAL WOMEN’S ASSOCIATION

(“‘AMWA’’) is a nonprofit organization of 12,000 women

physicians and medical students. One of AMWA’s primary

missions is to promote quality health care for women.

AMWA strongly opposes laws which adversely affect the

health of women or impose constraints on the right of the

pregnant patient, in consultation with her physician, to make

a personal and medically informed decision whether or not to

continue a pregnancy.

The AMERICAN NURSES’ ASSOCIATION (‘‘ANA’’) is

an association of registered nurses that is dedicated to the

advancement of goals and interests of registered nurses and

of the nursing professional generally. Founded in 1897, the

ANA is comprised of fifty-three constituent member organi-

zations. Registered nurses constitute the largest group of

health care providers in this country; there presently are

approximately two million registered nurses in the United

States. As health care providers, nurses have a long and

proud history of support for a fair and equitable health care

delivery system in which all Americans have access to basic

health services, including services related to reproductive

health.

The AMERICAN PUBLIC HEALTH ASSOCIATION

(‘‘APHA”’’) is a national organization devoted to the promo-

tion and protection of personal and environmental health and

to disease prevention. Founded in 1872, APHA is now the

largest public health organization in the world, with over

50,000 members, including 51 state and local affiliate organi-

zations. The APHA represents all disciplines and specialties

in public health, including both patients and health profes-

sionals such as physicians, nurses, health educators, and fam-

ily planning specialists.

AMERICANS FOR RELIGIOUS LIBERTY (“‘ARL’’) is a

nonprofit, national educational organization whose members

represent nearly the entire religious spectrym. ARL is dedi-

cated to defending religious liberty, freedom of conscience,

and the constitutional principle of separation of church and

state. ARL opposes censorship and any action by government

which would prevent counselors from providing full services

to clients on reproductive matters.

The ASIAN AMERICAN LEGAL DEFENSE AND EDU-

CATION FUND (‘‘AALDEF’’), founded in 1974, is a

national civil rights organization that addresses the critical

problems facing Asian American communities, including anti-

Asian violence, immigrant rights, voting rights, labor and

employment rights, and redress for Japanese Americans who

were incarcerated in camps in the United States during World

War Il. AALDEF seeks to improve the quality of life for

Asian immigrant women, who constitute the largest sector of

Asian women in the United States. AALDEF has assisted in

the formation of the Asian Women’s Center located in New

York City, which provides shelter with bilingual services for

battered women. AALDEF is committed to protecting the

fundamental right to reproductive choice by women utilizing

health clinics that are funded under Title X of the Public

Health and Human Services Act.

The ASSOCIATION FOR WOMEN IN PSYCHOLOGY is

an incorporated, nonprofit national educational and scientific

organization for feminist psychology founded in 1969. As an

organization, it is concerned with the rights of women to

function as fully autonomous human beings. Psychological

evidence supports freedom of choice as being conducive to

good mental health, so that any attempt to limit a woman’s

freedom of choice regarding reproductive issues is detrimental

to her psychological health and well-being. It believes that

her right to choose, and access to information facilitating

choice in reproductive matters, should not be denied in the

interest of any outside authority.

The ASSOCIATION OF REPRODUCTIVE HEALTH

PROFESSIONALS is a professional organization of physi-

cians, nurses and other reproductive health care providers. Its

principal objective is to educate its professional members and

the public on matters pertaining to reproductive health.

Among the health care services its members provide are edu-

cation and counseling on sexually transmitted diseases, con-

traception and abortion, in a variety of settings including

facilities that obtain Title X funding.

BOSTON WOMEN’S HEALTH BOOK COLLECTIVE,

incorporated in 1972, is a nonprofit educational organization

devoted to women and health. The organization provides

information, resources and technical assistance to the media,

health care workers, policy makers, students, women’s orga-

nizations in the U.S. as well as in other countries, and indi-

viduals with particular concerns. It serves about 10,000

persons every year. It is deeply concerned about this matter

because high quality, accessible family planning and abortion

services are crucial to the health and well-being of women

and their families.

The CALIFORNIA COALITION OF NURSE PRACTI-

TIONERS (the ‘‘Coalition’’) represents approximately 5,000

nurse practitioners throughout the state, many of whom work

in federally-funded family planning clinics. As an organiza-

tion representing those nurse practitioners, the Coalition is

concerned that the Title X funding of family planning clinics

continue without unnecessary governmental interference.

CATHOLICS FOR A FREE CHOICE (‘‘CFFC’’) is an

independent national membership organization established in

1974. One of CFFC’s objectives is to protect the legal rights

of all women and girls to act as moral agents in decisions

related to sexuality and reproductive health care without

coercive legal or quasi-legal interference by religious institu-

tions. As Catholics, CFFC members support policies of strict

separation of church and state based not only on the U.S.

Constitution but also on the Roman Catholic Declaration on

Religious Liberty, Vatican I] Dignitais humanae, 7 December

1965, which declares: ‘‘. . . the civil authority must see to it

that the equality of the citizens before the law, which is itself

society, is never violated and that there is no discrimination

among its citizens.’’

The COALITION OF LABOR UNION WOMEN

(“‘CLUW’’) is a membership organization of 20,000 female

and male trade unionists who promote the rights of working

women. CLUW, since its founding in 1974, has advocated

workplace rules and practices that protect all workers.

COMISION FEMENIL MEXICANA NACIONAL

(‘‘CFMN’’) was founded in 1970 in order to advocate for the

needs of the Hispanic woman and her family. CFMN has

chartered over 23 chapters and successfully established three

human service agencies—Chicano Service Action Center,

Centro de Ninos and Casa Victoria. CFMN has a member-

ship base of over 3,000, strongest in California but stretching

throughout the southwest. CFMN is a pro-choice organiza-

tion and believes strongly that every woman, regardless of

race or economic status, is entitled to the right of reproduc-

tive freedom. CFMN has been in several lawsuits as a co-

plaintiff and works tirelessly to ensure the basic freedom of

choice for all women.

The CONNECTICUT WOMEN’S EDUCATIONAL AND

LEGAL FUND was incorporated in 1973 as a nonprofit pub-

lic interest law firm advocating for women’s legal rights. It

has over 400 members and serves thousands of people in New

England each year through its litigation, community educa-

tion, research, and information and referral programs. It

joins this brief as amicus curiae because it believes it is essen-

tial to protect the rights of all citizens to privacy and freedom

in reproductive choices. As an organization working for

equality, it believes that every woman, without regard to reli-

gious belief, income, race, age or disability, must have an

equal opportunity to control her own health and reproduc-

tion.

The COORDINATING CENTER FOR WOMEN IN

CHURCH AND SOCIETY was founded by the 1.7 million

member United Church of Christ in 1980 to address the con-

cerns of women and eliminate sexism in Church and Society.

The Center is committed to a broad range of strategies to

protect reproductive freedom and keep abortion safe and

legal. The work of the Center is supported and informed by

the policies of the General Synod which has maintained a

strong freedom of choice position for two decades.

EQUAL RIGHTS ADVOCATES (‘‘ERA’’) is a San

Francisco-based public interest legal and educational corpora-

tion dedicated to working through the legal system to end

discrimination against women. It has a long history of inter-

est, 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.

FAMILY PLANNING ADVOCATES OF NEW YORK

STATE (‘‘FPA’’) is the only statewide membership organiza-

tion dedicated to promoting policies on the full range of

reproductive health issues. It is supported by more than 100

organizations, including Planned Parenthood and other fam-

ily planning agencies, as well as individuals and organizations

representative of a wide range of health, welfare and religious

groups. FPA is the upstate coordinator for the New York

State Campaign for Abortion Rights (NYSCAR).

LAMBDA LEGAL DEFENSE AND EDUCATION

FUND, founded in 1973, is the nation’s oldest and largest

national legal advocacy organization working to further the

rights of lesbians and gay men. As an organization represent-

ing the lesbian and gay community’s belief in the constitu-

tional right to individual liberty, decision making, and bodily

autonomy, Lambda strongly supports the position that

women in our society are constitutionally entitled to make

their own decisions about whether to choose abortion and

other reproductive decisions. Since the early 1980's Lambda

has also advocated on behalf of people with AIDS who face

discrimination and loss of confidentiality with regard to their

healthcare. Lambda strongly opposes the regulations at issue

in this case not only because they fail to support the right of

a woman to make her own reproductive decisions, but also

because of the devastating impact these regulations will have

on women with a variety of physical conditions or illnesses,

including HIV-related illnesses, which might lead her to con-

sider abortion as an option.

The LEAGUE OF WOMEN VOTERS OF THE UNITED

STATES (‘‘LWVUS”’) is a nonpartisan, nonprofit member-

ship organization with members in all 50 states, the District

of Columbia, Puerto Rico and the Virgin Islands. Since its

inception in 1920, the LWVUS’s purpose has been to pro-

mote political responsibility through the informed and active

participation of citizens in government. The LWVUS is

strongly committed to the belief that the public policy in a

pluralistic society must affirm the constitutional right of the

individual to make reproductive choices.

The LYMPHOMA FOUNDATION OF AMERICA is a

nonprofit charitable organization formed in 1986 by cancer

patients and their families. Lymphoma and Hodgkin's disease

are types of cancer. The Foundation sponsors support groups

and educational programs. Lymphoma Foundation of Amer-

ica believes that every individual has the right to be fully

informed about all medical treatments and therapies for his

or her particular condition. The Foundation believes that

denying someone information about the option of abortion is

the same as denying a cancer patient information about the

option of having surgery, drugs, or radiation. Withholding

basic medical information from someone in need is morally,

ethically, medically, and legally wrong.

NAACOG: THE ORGANIZATION FOR OBSTETRIC,

GYNECOLOGIC, AND NEONATAL NURSES is the pro-

fessional nursing organization for 24,000 OGN nurses. Estab-

lished in 1969, NAACOG members are nurses and allied

health care professionals who practice throughout the United

States and its territories, Canada, Germany, and Korea.

NAACOG represents the interests of its members whose com-

mon concern centers around access to care and quality of

care for women, infants, and their families.

The NATIONAL ABORTION RIGHTS ACTION

LEAGUE (‘‘NARAL’’), has over 400,000 members in 40

state affiliates and the national organization. Founded in

1969, NARAL is the largest national organization dedicated

solely to keeping abortion safe, legal and accessible. NARAL

recognizes that guaranteeing women the full range of repro-

ductive choices is critical to women’s autonomy and equality.

The NATIONAL ASSOCIATION OF NURSE PRACTI-

TIONERS IN REPRODUCTIVE HEALTH (‘‘NANPRH’’)

represents eight hundred nurse practitioners in the field of

reproductive health, many of whom work in federally-funded

family planning clinics. The NANPRH believes that it is a

professional standard that nurses and other health profession-

als present all available medical options to women faced with

pregnancies. Furthermore, the NANPRH believes that it is

essential that federally-funded family planning clinics con-

tinue to receive Title X funds.

The NATIONAL CENTER FOR LESBIAN RIGHTS

(‘‘NCLR’’), formerly the Lesbian Rights Project, is a non-

profit public interest law firm founded in 1977 and devoted

to the legal concerns of women and men who encounter dis-

crimination on the basis of their sexual orientation, including

the area of reproductive rights. NCLR is a national organiza-

tion with a strong commitment to increasing access to repro-

ductive rights for women, specifically for lesbians, and has

demonstrated that commitment through both litigation and

community education. Because lesbians are confronted with

obstacles, both as women and lesbians, from gaining access

to their reproductive rights, NCLR is well qualified to appear

as amicus curiae before this Court.

The NATIONAL COUNCIL OF JEWISH WOMEN

(‘““NCJW’’), founded in 1893, is the oldest Jewish women’s

organization in America. NCJW’s 100,000 members in more

than 200 sections across the United States keep the organiza-

tion’s promise to dedicate themselves, in the spirit of Juda-

ism, to advancing human welfare and the democratic way of

life through a combination of social action, education and

community service. Based on NCJW’s concern for individual

rights and our national resolutions, which include working

for the ‘‘protection of every female’s right to choose abor-

tion, and the elimination of obstacles that limit reproductive

freedom,’’ NCJW joins this brief.

The NATIONAL FEDERATION OF TEMPLE SISTER-

HOODS represents women of reform judaism. It includes

over 100,000 women in over 500 communities throughout the

United States. The organization believes that the right of

choice on the question of abortion is a personal decision

based on the individual woman’s religious, moral or cultural

values, that this decision should not be determined for others

by special interest groups, and that the government should

not be the enforcing agency for the points of view of such

groups.

The NATIONAL LAW CENTER ON HOMELESSNESS

AND POVERTY is a nonprofit national advocacy group

based in Washington, D.C. Founded in the summer of 1989,

the Center monitors—and, where necessary, enforces—

federal laws to aid homeless and poor persons. In addition,

the Center promotes public policies designed to aid homeless

and poor persons. In conducting its activities, the Center reg-

ularly takes public positions in support of the interests of the

homeless and the poor. The Center believes that further

restrictions on federal funding of family planning programs

will unfairly and disproportionately burden poor women.

Because the Center also believes that these restrictions are

illegal, it joins in opposing them.

The NATIONAL LAWYERS GUILD is a national organi-

zation representing 8,000 lawyers, legal workers, law students

and jailhouse lawyers in over 200 chapters throughout the

United States. Since its founding in 1937, the Guild has pro-

vided legal support to virtually every struggle in this country

for economic, social and political justice. The Guild is firmly

10a

committed and is working actively to protect the rights of all

people, and specifically the right of every woman to have

access to all forms of family planning, including safe and

legal abortion.

The NATIONAL WOMAN'S PARTY, founded in 1913 by

Alice Paul, suffragist and author of the Equal Rights

Amendment, passed at its September 29, 1989 national con-

vention a resolution on pro-choice, supporting federal, state

and local legislation that affirms a woman's right of repro-

ductive choice.

The NATIONAL WOMEN’S CONFERENCE COMMIT-

TEE (‘‘NWCC”"’), is the continuing committee of the Interna-

tional Women’s Year. Founded in 1977, the organization is

committed to the ‘‘National Plan of Action.’’ The Plan sup-

ports among other things the right of pregnant women to

choose. NWCC is a national organization pleased to join in

this amicus curiae brief.

The NATIONAL WOMEN’S HEALTH NETWORK is a

national public interest group representing over 500,000

women nationwide. The Network advocates for better gov-

ernmental health policies regarding women, including access

to low-cost family planning services. —

The NATIONAL WOMEN’S LAW CENTER is a Wash-

ington, D.C.-based legal organization which has been work-

ing since 1972 to advance and protect women’s legal rights.

The Center’s primary goal is to ensure that public and privete

sector practices and policies better reflect the needs and rights

of all women. Because of the harsh impact of the Title X

prohibition on abortion counseling and referral on the repro-

ductive rights and health of poor women, who are dispropor-

tionately women of color, the Center joins as amicus curiae

to urge the Court to grant petitioners’ writ of certiorari.

NATIONAL WOMEN’S POLITICAL CAUCUS is a

multi-partisan, nonprofit national membership organization.

Founded in 1971, it has over 70,000 members. The CAUCUS

works to increase women’s political representation and for

lla

social and economic justice for all. The right to reproductive

freedom regardless of economic status is one of the CAU-

CUS’ primary goals. The regulations at issue in the present

case infringe on women’s equal access to information and

full medical treatment. This infringement is reprehensible and

the CAUCUS signs on as a friend of the court in support of

women’s equality.

NEW JEWISH AGENDA (‘‘Agenda’’) is an organization

comprised of Jews from a variety of backgrounds and affilia-

tions. Drawing on the Talmudic teaching of tikkun olam, the

just reordering of society, Agenda works for peace and social

justice by applying Jewish religious and secular history and

values to local organizing on current domestic and interna-

tional concerns. Priority issues include peace and justice in

the Middle East and Central America, feminism, disarma-

ment, economic and social justice, lesbian and gay rights,

and opposition to racism, anti-Semitism and apartheid. New

Jewish Agenda was founded in December, 1980 and now has

chapters in more than 45 American cities. Agenda’s 5,000

members work to foster traditional progressive Jewish values

and to promote Jewish participation in progressive coalitions.

The NEW YORK STATE REPUBLICAN FAMILY COM-

MITTEE is an educational agency advocacy organization

devoted to promoting policies that foster maximum choice,

particularly in matters of health. Founded in 1984, the Com-

mittee has over 300 Republican party members with ninety-

nine percent residing in New York State. Its membership

includes lawyers, health care professionals, business people,

educators, philanthropists, and numerous civic and political

leaders.

The NORTHWEST WOMEN’S LAW CENTER is a pri-

vate nonprofit organization in Seattle, Washington, that

works to advance the legal rights of women by means of liti-

gation, legislation, education, and providing information and

referrals. Protecting women’s freedom of reproductive choice

is one of the Law Center’s priority issue areas. The Law Cen-

12a

ter has participated in several cases involving reproductive

rights before the U.S. Supreme Court and other courts.

The NOW LEGAL DEFENSE AND EDUCATION FUND

(“‘“NOW LDEF’’) is a nonprofit civil rights organization 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 repro-

ductive options under law.

The PUERTO RICAN LEGAL DEFENSE AND EDUCA-

TION FUND is a national organization founded in 1972 to

protect civil rights and to ensure equal protection of the laws

for Puerto Ricans and other Latinos. The Fund has partici-

pated in lawsuits and has served as an advocate to ensure

that Latinos have access to full and adequate health care,

including family planning. The Fund recognizes that restric-

tions or limitations on the provision of health services,

including information concerning abortions, deny women

access necessary to fully exercise their rights, and place Lati-

nos at an even greater risk of inadequate and dangerous

treatment and unwanted pregnancies.

The RELIGIOUS COALITION FOR ABORTION

RIGHTS (‘‘RCAR’’) is a national coalition of 34 Protestant,

Jewish and other faith groups committed to religious freedom

and reproductive rights. Because each denomination and faith

group represented in RCAR approaches the issue of choice

from the unique perspective of its own theology, members

hold widely varying viewpoints as to when abortion is mor-

ally justified. It is exactly this plurality of beliefs which leads

RCAR to the conviction that the abortion decision must

remain with the individual to be made on the basis of con-

science and personal religious principles, free from govern-

mental interference.

The SEX INFORMATION AND EDUCATION COUN-

CIL OF THE U.S. (‘‘SIECUS’’) is a twenty-five year-old

national nonprofit organization headquartered in New York.

SIECUS affirms that sexuality is a natural and healthy part

of living and advocates the right of individuals to make

l3a

responsible sexual choices. SIECUS provides information ser-

vices to professionals, students, and members of the general

public across the United States. SIECUS deplores any

attempts to undermine women’s reproductive health rights.

The SIECUS Board of Directors has passed a position state-

ment supporting the right to choose abortion, which states in

part, ‘‘SIECUS believes a woman is entitled to have full

knowledge of alternatives available to her and to have comp-

lete and unbiased information and counseling concerning the

nature, the consequences, and the risks, both of the abortion

procedure and of pregnancy and childbirth.’’ SIECUS

believes that the February 1988 regulations would deny

women the right and the ability to make responsible choices.

The SOUTHERN CALIFORNIA WOMEN’S LAW CEN-

TER was established in 1989 as the first Law Center in

Southern California solely devoted to addressing the civil

rights of women and girls. The Law Center has identified the

following priorities of its work: reproductive rights, sex dis-

crimination in employment, sex discrimination in education,

family law, domestic violence and child care. The Law Cen-

ter’s primary efforts in addressing these priorities emphasize

support and technical and legal assistance to legal services

agencies, community based organizations, attorneys and poli-

cymakers.

The WISCONSIN NURSE PRACTITIONERS IN

REPRODUCTIVE HEALTH (‘‘W.N.P.R.H.’’) is a state-

wide nursing organization dedicated to providing quality

reproductive health care. W.N.P.R.H. joins this brief as ami-

cus curiae because it believes that responsible and healthful

decision making is based on thorough education with respect

to all options available to the health care consumer.

WOMEN’S EQUAL RIGHTS LEGAL DEFENSE AND

EDUCATION FUND (‘‘WERLDEF’’) is a nonprofit Califor-

nia corporation primarily serving the greater Los Angeles

community. Established in 1978, WERLDEF was organized

to ensure that women will be treated equally under the law.

WERLDEF achieves its goals by educating women about

l4a

their legal rights, and assisting them in vindicating those

rights by providing access to the courts. WERLDEF often

receives calls from pregnant women who cannot afford the

cost of a private doctor but who require information regard-

ing their full range of choices vis a vis their pregnancy/

parenthood. It is WERLDEF’s policy to refer these women

to medical clinics where they can obtain thoroughly reliable

and accurate medical information and attention.

The WOMEN’S LAW CENTER is an advocacy organiza-

tion whose membership consists of attorneys and judges in

the State of Maryland. In existence since 1971, the goal of

the Women’s Law Center is to promote the legal rights of

women through litigation, legislation and education. Our

organization believes the regulations at issue in New York

State v. Sullivan, which would deny federal funding for fam-

ily programs that provide abortion information, services or

referral, pose a critical threat to the reproductive rights of

women.

The WOMEN’S LAW PROJECT (‘‘WLP’’) is a nonprofit

law firm dedicated to advancing the status and opportunities

of women. WLP believes that the right to reproductive choice

is an essential component of women’s ability to play an equal

role with men in this society, and has engaged in extensive lit-

igation and public education designed to protect women’s

legal right to abortion.

The WOMEN’S LEGAL DEFENSE FUND (‘‘WLDF’’) is

a tax-exempt nonprofit membership organization founded in

1971 to challenge sex-based discrimination and to advocate

for women’s rights in society. WLDF believes strongly that to

participate fully and equally with men in society, all women

must have the right to decide for themselves whether and

when to carry their pregnancies to term.

The YOUNG WOMEN’S CHRISTIAN ASSOCIATION

OF U.S.A. (‘‘YWCA"”’), a national membership organization

whose mission is the empowerment of women and the elimi-

nation of racism, strongly supports reproductive freedom of

choice. Because the Department of Health and Human Ser-

{ lSa

vices’ regulations restrict that freedom, and rum counter to

First Amendment protection, the YWCA supports the posi-

tion taken in this amicus curiae brief.

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.