Amicus Curiae Brief — Rust v. Sullivan

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CASE NOS. 89-1391, 89-1392 | 7

In The aaah

United States Supreme Court |

QP était a JR,

——— -. ----— — a

October Term, 1989

DR. IRVING RUST, ET AL..,

Petitioners,

V.

DR. LOUIS SULLIVAN,

Respondent,

and

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

YORK CITY HEALTH AND HOSPITALS, CORP.,

Petitioners,

Vv

DR. LOUIS SULLIVAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

STATE OF OHIO IN SUPPORT OF PETITIONERS

By ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

With Attorneys General Joining for the States of

ALASKA, CALIFORNIA, CONNECTICUT, MAINE,

NEBRASKA, OREGON, AND TEXAS, AND THE CORPORATE

COUNSEL FOR THE DISTRICT OF COLUMBIA

ANTHONY J. CELEBREZZE, JR.,

Attorney General of Ohio |

RITA S. EPPLER

Chief, Federal Litigation Section

(Counsel of Record)

JACK W. DECKER

Assistant Attorney General

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 466-5414

[Other Counsel Listed Inside Front Cover]

HONORABLE DOUGLAS B. BAILY

Attorney General of Alaska

P.O. Box K, State Capito!

Juneau, Alaska 99811-0300

(907) 465-3600

HONORABLE JOHN K.

VAN DE KAMP

Attorney General of California

1515 K. Street

Sacramento, California 95814

(916) 324-7860

HONORABLE CLARINE NARDI

RIDDLE

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

(203) 566-2026

HONORABLE HERBERT O.

REID, SR.

Corporate Counsel! for the

District of Columbia

1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 727-6248

HONORABLE JAMES E. TIERNEY

Attorney General of Maine

State House Station 6

Augusta, Maine 04333

(207) 289-3661

HONORABLE ROBERT M. SPIRE

Attorney Genera! of Nebraska

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

HONORABLE DAVE

FROHNMAYER

»..urney General of Oregon

100 Justice Building

Salem, Oregon 97310

(503) 378-6002

HONORABLE JIM MATTOX

Attorney Genera! of Texas

P.O. Box 12548

Capito! Station

‘Austin, Texas 78711

(512) 463-2100

Petitioners the State of New York and Dr. Irving Rust, et

al., have presented four questions eaci. for review. Amicus

State of Ohio wishes to address these questions as follows:

1.

QUESTIONS PRESENTED

Do new regulations promulgated by HHS under

Title X of the Public Health Service Act which

prohibit abortion counseling, referral and

advocacy in programs funded under the Act

and require physical separation of Title X

funded facilities and facilities engaging in

abortion-related services, violate the woman's

and the health professional's First Amendment

rights?

Does the regulations’ prohibition of abortion

counseling and referral in a Title X-funded

program violate the woman's constitutionally

protected privacy right to make a fully informed

decision on whether or not to continue her

pregnancy?

TABLE OF CONTENTS

QUESTIONS PRESENTED .ccccccccccevcccssessseun i

INTEREST OF AMICI CURIAE ...........0 cee eeeeeees

SUMMARY OF ARGUMENT ...........ccccecccseces

REASONS FOR GRANTING THE WRIT

|. THE TITLE X AMENDED REGULATIONS WILL

RESULT IN DETERIORATION OF HEALTH

CARE SERVICES TO LOW INCOME WOMEN

AND WILL PROVIDE INCOMPLETE AND

MISLEADING INFORMATION TO WOMEN

MAKING REPRODUCTIVE HEALTH

DCTITED ow ccccccccccccccccpesesessoees

A. THE AMENDED REGULATIONS WILL

RESULT IN DETERIORATION OF HEALTH

CARE SERVICES TO THOSE IN MOST

DESPERATE HEED .ccccccccccwebegesess

B. THE AMENDED REGULATIONS WILL

SUPPRESS THE FLOW OF COMPLETE

MEDICAL INFORMATION NECESSARY

FOR INFORMED CHOICE ................

ll. THE DECISION OF THE SECOND CIRCUIT

CONTRAVENES RULINGS OF THIS COURT

WHICH PROTECT THE PRIVACY, LIBERTY,

AND FIRST AMENDMENT INTERESTS IN

WOMEN MAKING INFORMED CHOICES

REGARDING THEIR REPRODUCTIVE

HEALTH, AND WHICH PROHIBIT THE USE

OF FEDERAL SPENDING TO INFLUENCE

IMPROPERLY A STATE’S DISPOSITION OF

ITS OWN RESOURCES ..................

A. THE AMENDED REGULATIONS IMPOSE

AN IMPERMISSIBLE OBSTACLE TO A

WOMAN'S PERSONAL REPRODUCTIVE

CHOICE, IN VIOLATION OF HER LIBERTY

AND PRIVACY RIGHTS AS PROTECTED

BY THE CONSTITUTION ..............

B. THE AMENDED REGULATIONS WILL

SUPPRESS THE FLOW OF COMPLETE

MEDICAL INFORMATION NECESSARY

FOR INFORMED CHOICE .............

C. THE AMENDED REGULATIONS IMPOSE

UNCONSTITUTIONAL CONDITIONS

UPON THE EXPENDITURE OF STATE

FUNDS COMMITTED TO TITLE X

CECE week escccesceceevecss

CEE ei cece wecevseccosccccesees

EEE EGn dese beseeetcescccacescccces

iv

TABLE OF AUTHORITIES

CASES

Abrams v. United States, 250 U.S. 616 (1919) .......... 19

American Communications Assoc. v. Douds,

339 U.S. 382, reh. denied, 339 U.S. 990 (1950) ....... 16

Arkansas Writers’ Project v. Ragland,

ee es eh oeeeee eebice 16

Bigelow v. Virginia,

i ee eta seeesesneeess 15

Cammarano v. United States,

Ne eee bb oes ee 6006 16

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

cert. denied, 409 U.S. 1064 (1972) ................. 11

City of Akron v. Akron Center for Reproductive Health,

ee ES see Chetweces eked ees 10, 11,14

Consolidated Edison Co. v. Public Service

cc oc cencectovccenses 15

Elrod v. Burns, 427 U.S. 347 (1976) ............2008..- 17

F.C.C. v. League of Women Voters,

ek os ccc ceceeepeseancene 16

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

reh. denied, 448 U.S. 917 (1980) ...... 4,5, 10, 11, 14-16

Maher v. Roe, 432 U.S. 464 (1977) ......4,5, 10, 11, 14-16

Massachusetts v. Secretary of Health and

Human Services, No. 88-1279, Slip Op., 1990

U.S. App. LEXIS 4236 (1st Cir. March 19, 1990)

ee ree 1,5, 12

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ......... 15

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

Planned Parenthood Federation of America v. Bowen,

680 F. Supp. 1465 (D. Colo. 1988)

ee eke ee che i aces Speccessbecees 5

Police Department of Chicago v. Mosley,

en ae he edaegens sccececce cue 15, 16

Regan v. Taxation with Representation,

eck ed aueeesescoceceeences 16

Reproductive Health Services v. Webster,

851 F.2d 1071 (8th Cir. 1988), rev'd on other grounds,

SEE “SedGdeseedeccrvcccccneseces 13

Roe v. Wade, 410 U.S. 113 (1973) ..............42.. 4,5

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

South Dakota v. Dole, 483 U.S. 203, (1987) ......... 18, 20

Speiser v. Randall, 357 U.S. 513,

reh. denied, 358 U.S. 860 (1958) ............... 16, 17

State of New York v. Sullivan,

889 F.2d 401 (2d Cir. 1989) ..............e0ee 8, 10, 11

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ...... 10, 11, 14

Webster v. Reproductive Health Services,

CEG GN UU on cccccccvccécenes 4,5, 11, 14-16

vi

CONSTITUTIONAL PROVISIONS,

STATUES, AND REGULATIONS

GE CUE TE hoch be ccc cceceicssiscccecesces 18

i CN os ha oc eueebedeendéneeeses passim

Public Health Services Act, Title X, 42 U.S.C.A. §300

GOGO GEPNEE TEED vc ccccccescccccccccsccces passim

42 U.S.C.A. §300a-4 (West 1982) ........ 0c cece eee eee 6

i coc dda idhdeveans 6,8

at RG PPP VTTTETTTITITITit Tier. 12

42 CFR. SEDBINT) (CIGRE) nw ccc ccc ccccccccccsces 9

42 C.F.R. SEB.BIGME) (19GB). ccc ccc ccccccccccces 9

42 C.F.R. §59.8(a)(3) (1988)... eee cee ee eee 9

ED Finn ctceccvacteecevahecend )

42 C.F.R. §59.8(b)(3) (1988) 2... eee eee eee eee 9

42 CFR. SED.BINA) (1GGS) wc ccc ccc ccc cccccccccces 9

42 CPR. SOBRE (IGGR) nw ccc ccc cc ccc ccccnces 9,12

oi dulscepiibesbnseuea 19

53 Fed. Reg. 2922 (1988) .......cccccccvccccccccees 10

vii

OTHER AUTHORITIES

Comment, The Title X Family Planning Gag Rule: Can

Government Buy Up Constitutional Rights? 41 Stan. L. Rev.

SED 66 bus 0cdedeweedeseéunde bed essee ceed 6-8

Forrest and Singh, Public-Sector Savings Resulting from

Expenditures for Contraceptive Services, 22 Fam. Plan.

PS a Show bh 6nckdeeekee babudeedeen ks 7,8

McCarthy, The Prohibition on Abortion Counseling and

Referrai in Federally-Funded Family Planning Clinics, 77

Se OU WUE. wees dacessicaveccensses 6,8

United States Department of Health and Human Services,

Public Health Service, Bureau of Community Health

Services, Common Reporting Requirement Fact Sheets,

WEE "Ud 0b0 0650 0606d60saeeN EN es ndencoess 6, 8

CASE NOS. 89-1391, 89-1392

In The

United States Supreme Court

October Term, 1989

DR. IRVING RUST, ET AL.,

Petitioners,

Vv

DR. LOUIS SULLIVAN,

Respondent,

and

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

YORK CITY HEALTH AND HOSPITALS, CORP.,

Petitioners,

Vv

DR. LOUIS SULLIVAN,

Respondent.

BRIEF OF AMICUS CURIAE

STATE OF OHIO IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

This brief is filed by Anthony J. Celebrezze, Jr., Attorney

General of Ohio, joined by the states of Alaska, California,

Connecticut, Maine, Nebraska, Oregon, and Texas, and the

District of Columbia. These states,’ where Title X funds are

utilized to provide health care services to hundreds of

thousands of citizens,” have joined together to urge this Court

' Most state agencies that receive and disburse Title X funds are

members of the association entitled the National Family Planning and

Reproductive Health Association (“NFPRHA") and are plaintiffs-

appellees in Massachusetts v. Secretary of Health and Human Services,

No. 88-1279, Slip Op., 1990 U.S. App. LEXIS 4236 (1st Cir. March 19,

1990) (en banc).

2 State agencies in the amici states of Ohio, California, Maine, Nebraska,

Oregon, and Texas, and the District of Columbia participate directly

in the Title X program. All of the amici states have local Title

to grant the Writ of Certorari filed by Petitioners in Case

Numbers 89-1391 and 89-1392.

This case presents issues of critical national importance.

The amended regulations to the Public Health Services Act,

Title X, if permitted to go into effect, will force states to choose

between accepting federal Title X funds under a program

which will provide incomplete and possibly misleading

medical information and invade the integrity of the physician-

patient relationship, and forfeiting receipt of Title X funding

altogether. Either option will have devastating repercussions

on the abilities of the amici states to provide effective family

planning and related health care services to low income

women.

The state agencies that both receive and disburse Title

X funds have a unique interest in the regulations issued by

the Department of Health and Human Services (hereinafter

HHS). Most of the amici states provide matching funds from

their own revenues to support Title X projects. The

regulations, as amended, would expand the definition of “Title

X Project” in such a way as to require that these state funds

also be used to provide misleading and possibly medically

dangerous information to women. The amendments will

unnecessarily impede these states’ capacities to allocate

their own funds to provide more balanced post-pregnancy

counselling and referral services, even outside the ambit of

the federal Title X program.

SUMMARY OF ARGUMENT

Amici states support and join in the arguments presented

by Petitioners and amici, the American Public Health

Association, et a/. Most of these arguments will not be

reiterated here. Rather, this brief will focus on issues of

particular concern to Ohio and the other amici.

? footnote cont.

X grantees within their borders. The sacrifice of the health and welfare

of low income women is, naturally, of great concern to all the amici

states.

Because the regulations at issue in these petitions will

result in provision of incomplete and slanted information to

the women of Ohio and other states, they will undermine,

rather than promote, each individual woman's right to make

in an informed way her own reproductive health decisions.

Because the amended regulations forbid a Tt!e X physician

from discussing the abortion option with a woman, even when

the abortion may be advisable to protect her health, they

directly jeopardize the health of the patient. Because the

regulations require a Title X physician to practice medicine

in a way which conflicts with sound medical practice and

professiona! ethics, should the regulations go into effec* iv

Ohio and other states, many Title X providers may simply

refuse further participation in the program. That would result

in more restricted access to Title X facilities by the states’

low income women, many of whom have no alternative

source of care, anc further adverse consequences to the

health of these women.

Moreover, the decision below must be reversed because

it conflicts with the law as established by this Court. The

amended regulations cannot be upheld under the

government's discretion not to fund certain programs,

because the rules regulate pure speech in a content-

discriminatory manner. The amended regulations require the

dissemination of information about childbearing but censor

speech about abortion. The amended regulations establish

a rigid, misleading exchange between patient and physician,

which, under the imprimatur of a government program,

implies to the patient that she has received full information

about her choices. In fact, the option to terminate her

pregnancy has not been disclosed. By intentionally

misleading the patient regarding her choices, the regulations

erect an impermissible obstacle to the woman's liberty and

privacy rights to determine what shall be done with her body.

In addition, the regulations impose an unconstitutional

condition upon the receipt of a government benefit. Title X

provides both grants to Title X clinics, and subsidies for

medical, counselling and referral services to Title X patients.

As a condition to receiving these benefits, both the patient

/

and health professional must relinquish their First

Amendment rights to exchange information about the

termination of pregnancy. The federal government cannot

require this gag on pure speech consistent with tie First

Amendment.

Finally, the regulations redefine the scope of the Title X

project in such a way that matching funds provided by Ohio

and other amici states would be swept within the new rules.

lf the states continue to participate, state tax dollars would

be required to be used to mislead needy women regarding

their choices and perhaps to jeopardize their health. Such

conditions on the expenditure of state monies would be

inconsistent with the constitutional spending power of

Congress because such requirements would not promote

the public welfare, the conditions for state participation are

vague, the regulations contravene the purpose of Title X

funding, and the rules would require state funds be used

to defeat the constitutional rights of Title X patients.

REASONS FOR GRANTING THE WRIT

|. THE TITLE X AMENDED REGULATIONS WILL RESULT

IN DETERIORATION OF HEALTH CARE SERVICES TO

LOW INCOME WOMEN AND WILL PROVIDE

INCOMPLETE AND MISLEADING INFORMATION TO

WOMEN MAKING REPRODUCTIVE HEALTH DE-

CISIONS.

This Court has held that the government may, in the

exercise of its spending powers, flatly decline to pay for the

medical procedure of abortion, Harris v. McRae, 448 U.S.

297, reh. denied, 448 U.S. 917 (1980); Maher v. Roe, 432

U.S. 464 (1977), or refuse to permit the procedure to be

performed in government-owned facilities, Webster v.

Reproductive Health Services, 109 S. Ct. 3040 (1989),

notwithstanding a woman's constitutional right to freedom

of reproductive choice. Roe v. Wade, 410 U.S. 113 (1973).

This Court's decision in Webster did not address the issue

presented herein, as the majority concluded the First

Amendment question presented by the prohibition on

abortion counselling and referral from publicly funded family

planning clinics was moot. 109 S. Ct. at 3053-54. It was further

noted that a constitutional issue could arise if the statute

were interpreted to prohibit publicly employed health

professionals from giving specific medical advice. /d. at 3060

(O’Connor J., concurring), 109 S. Ct. at 3069 n.1 (Blackmun

J., concurring).

The Second Circuit, relying upon Maher, Harris, and

Webster, impermissibly extended the idea that the

government may refuse to subsidize the medical procedure

of abortion to find that the government may suppress pure

speech. The Second Circuit has authorized regulations

which serve to interfere with the integrity of the physician-

patient relationship. Tampering with the physician-patient

relationship will result in health care professionals providing

less than complete information, at best, and more likely,

misleading information to women faced with the need to make

reproductive health decisions. Contrary results, that the

amended regulations violate the privacy interests of women

and First Amendment interests of women, physicians, and

health care professionals, have been reached in the United

States Court of Appeals for the First Circuit and the United

States District Court in Colorado. Massachusetts v. Secretary

of Health and Human Services, No. 88-1279, Slip Op., 1990

U.S. App. LEXIS 4236 (1st Cir. March 19, 1990) (en banc);

Planned Parenthood Federation of America v. Bowen, 680

F. Supp. 1465 (D. Colo. 1988) (appeal pending). This case

presents the opportunity for this Court to resolve the

discrepancy between the circuits and affirm the need for

free flow of information before informed choice can occur.

A. THE AMENDED ‘REGULATIONS WILL RESULT IN

DETERIORATION OF HEALTH CARE SERVICES TO

THOSE IN MOST DESPERATE NEED.

Title X of the Public Health Service Act authorizes grants

to profit and non-profit organizations “to assist in the

establishment and operation of voluntary family planning

projects” servicing mostly low income families. 42 U.S.v.A.

300, et seq. (West 1982). Title X is the single largest voluntary

family planning program funded by the federal government,

providing over one-third of the total public family planning

funds. Comment, The Title X Family Planning Gag Rule: Can

the Government Buy Up Constitutional Rights? 41 Stan. L.

Rev. 401, 408 (1989) [hereinafter Gag Rule]. Title X serves

approximately 4,300,000 low income women annually

through more thafi 4,000 family planning clinics which

receive some $140 million in Title X grants. McCarthy, The

Prohibition on Abortion Counseling and Referral in Federally-

Funded Family Planning Clinics, 77 Calif. L. Rev. 1181, 1183

(1989) [hereinafter Abortion Counseling]. Entities receiving

Title X funds include health departments at the state, county

and municipal levels, family planning clinics, hospitals, and

community health organizations. Public health departments

receive approximately 40 per cent of the available Title X

funds. Gag Rule, 41 Stan. L. Rev. at 408. States that receive

Title X funds are required to provide a minimum of 10 per

cent matching grants of state money. 42 U.S.C.A. §300a-

4 (West 1982).

The reach of the amended regulations extends far beyond

the mere expenditure of federal dollars. “Title X Programs”

and “Title X Projects” as redefined include not only direct

federal subsidies, but any other funds, public or private, used

in the Title X project. 42 C.F.R. §59.2 (1988). If a state

contributes to the Title X project, or if the clinic uses its

own private funds to support Title X activities, the use of

these alternative funds is likewise held hostage to the Title

X requirements, and gagged as well.’ Thus, even if state

departments of health, or state Title X clinics or their private

supporters, vehemently disagree with the requirement to

% In 1989 over 142,000 women in Ohio were provided family planning

services through Title X activities based on multiple sources of funding

including state funds, client fees, Medicaid, and Title XX and Maternal

and Child Health (MCH) Block Grants. See United States Department

of Health and Human Services, Public Health Service, Bureau of

Community Health Services, Common Reporting Requirement Fact

Sheets, Table 2(B). (Summary reproduced at Appendia A). The combined

funding sources provided $12,866,455.00 for health care services to

women in Ohio with approximately 38 per cent comprised of Title X

funds. /d.

suppress information, these non-federal parties must either

accept the requirement that their own funds be used to

suppress information, or must completely forego participation

in Title X. Either alternative will have a dramatic effect on

health care services provided to low income women across

the county.

Like New York, the amici states are concerned that the

amended regulations will have a devastating impact on health

care services to low income women. It is feared that a

significant number of reliable Title X providers will find

continued participation in Title X to be medically and ethically

unsound and will simply opt out of the program, making them

able to serve far fewer women because of the substantial

loss of funding.‘

The substantial benefits of publicly funded family planning

programs cannot be examined without an appreciation for

the enormous role played by public health care dollars in

providing services to low income women. Publicly funded

family planning services play an important role in allowing

substantial numbers of women to prevent unintended

pregnancies. Researchers estimate the use of contraceptives

from publicly funded providers are responsible for preventing

up to 3.1 million unintended pregnancies annually. Forrest

and Singh, Public-Sector Savings Resulting from

Expenditures for Contraceptive Services, 22 Fam. Plan.

Persp. 6, 11 (1990). Many low income women, without access

to public health facilities, would no longer be able to prevent

unintended pregnancies, resulting in a rise in unintended

births and abortions. The amount of money saved as a result

7

“In spite of the diversity of the recipient clinics, their reactions to

the Regulations are generally consistent. . . . [T]he National Family

Planning and Reproductive Health Association, which represents 85

per cent of the recipients of federal money, predicts that the majority

of current programs would refuse to withhold neutral abortion information

from their clients.” Gag Rule, 41 Stan. L. Rev. at 408, and n.38.

The expenditure of funds for family planning services conserves

additional state and federal government subsidies that would be spent

for Medicaid, Aid for Dependent Children, General Relief, and other

assistance.

of contraceptive use by women relying on publicly funded

providers represents up to $11.26 for each dollar spent to

provide those services, resulting in a total annual savings

up to 4.6 billion dollars. /d. at 11-12.

Nationwide, eighty per cent of all Title X patient recipients

have annual incomes below 150 per cent of the federal

poverty level.* Gag Rule, 41 Stan. L. Rev. at 408 n.36. These

are the persons who can least afford to pay for family planning

services and yet are the very persons that will receive either

less than full information upon which to make reproductive

health choices or far fewer family planning services from

non-federally funded programs.

B. THE AMENDED REGULATIONS WILL SUPPRESS

THE FLOW OF COMPLETE MEDICAL

INFORMATION NECESSARY FOR INFORMED

CHOICE.

Despite Congress’ numerous refusals to amend Title X

to bar use of government funds to inform women of the

availability of abortion, HHS in 1987 elected to accomplish

the same result by administratively “reinterpreting” the Act.

See Abortion Counseling, 77 Cal. L. Rev. at 1184-85. In so

doing, HHS rejected its own longstanding interpretation of

the Act to require “non-directive” counseling of pregnant

patients regarding both abortion and its alternatives. State

of New York v. Sullivan, 889 F.2d 401, 405 (2d Cir. 1989).

The HHS amended regulations reverse the agency's stance

by declaring the Title X “family planning” function to terminate

with pregnancy. 42 C.F.R. §59.2 (1988). Under this guise of

neutrality, the amended regulations then require the clinic's

remaining dialogue with the pregnant patient to encourage

childbearing.

® The Ohio Department of Health, Federation for Community Planning,

and Planned Parenthoods of Summit, Portage, Medina Counties and

Central Ohio combined in 1989 to serve a total of over 142,000 women.

Of those women served, over 123,000 were at or below 150 percent

of the federal poverty level. See Summary Table, Appendix A.

The HHS amended regulations seek to prevent pregnant

women served by clinics funded under Title X from learning

of the availability of abortion regardless of the circumstances.

In fact, under the amended regulation a physician would

be precluded from raising the issue of abortion or responding

to questions raised by a patient even if carrying a child to

term would result in a threat to the life or health of the mother.

42 C.F.R. §59.8(b) (1988).

The regulations forbid the clinic to provide any referral

for an abortion. 42 C.F.R. §59.8(a)(1) (1988). However, the

Clinic is affirmatively required to refer the pregnant patient

“for appropriate prenatal and/or social services by furnishing

a list of available providers that promote the welfare of mother

and unborn child.”” 42 C.F.R. §59.8(a)(2) (1988). Any referral

list given to the patient must exclude “health care providers

whose principal business is the provision of abortions,” but

may not exclude, for any reason, any agency which does

not provide abortions. 42 C.F.R. §59.8(a)(3) and (b)(4) (1988).

In case there is any doubt about the meaning or intent

of the regulations, it is resolved by the examples contained

therein. If a patient asks her physician whether an abortion

is medically advisable, or even simply requests a referral

for an abortion, the clinic physician’s or health care

professional's response is scripted by the amended

regulations. The physician, regardless of the non-emergency

medical condition, can only respond by stating “the project

does not consider abortion an appropriate method of family

planning and therefore does not counsel or refer for abortion.

.. . [T]he project can help [you] to obtain pre-natal care.

...” 42 C.F.R. §59.8(b)(5) (1988). The woman must then be

given a list of all providers of pre-natal care from which

any providers whose principal business is abortion must be

excised. The clinic may neither include an abortion clinic,

nor exclude a provider of pre-natal services, from the list.

42 C.F.R. §59.8(b)(3) and (b)(4) (1988). A woman requesting

abortion referral services may not even be given the Yellow

7

The only exception to the mandatory referral for pre-natal care is

when emergency care is required. 42 C.F.R. §59.8(a)(2) (1988).

10

Pages to locate and call an abortion provider herself, since

the telephone book constitutes a “list” which may contain

“forbidden” providers. 53 Fed. Reg. 2922, 2942 (1988).

In the decision below the concurring judge found these

regulations “jeopardize[ ] the ability of Title X physicians to

safeguard the health of those seeking their expert advice.”

State of New York v. Sullivan, 889 F.2d at 415 (Cardamone

J., concurring). The ban on providing even a tele. ione book

to a needy client was deemed “a small and petty contrivance,

inconsistent with our nation’s high principles.” /d.

ll. THE DECISION OF THE SECOND CIRCUIT

CONTRAVENES RULINGS OF THIS COURT WHICH

PROTECT THE PRIVACY, LIBERTY, AND FIRST

AMENDMENT INTERESTS IN WOMEN MAKING

INFORMED CHOICES REGARDING’ THEIR

REPRODUCTIVE HEALTH, AND WHICH PROHIBIT THE

USE OF FEDERAL SPENDING TO INFLUENCE

IMPROPERLY A STATE’S DISPOSITION OF ITS OWN

RESOURCES.

A. THE AMENDED REGULATIONS IMPOSE AN

IMPERMISSIBLE OBSTACLE TO A WOMAN'S

PERSONAL REPRODUCTIVE CHOICE, IN

VIOLATION OF HER LIBERTY AND PRIVACY

RIGHTS AS PROTECTED BY THE CONSTITUTION.

Whatever degree of constitutional protection a woman's

choice to abort hér pregnancy may now enjoy, it is clear

that, at the very least, the government may not impose

impermissible obstacles to thwart the abortion decision.

Harris v. McRae, 448 U.S. 297, 314, reh. denied, 448 U.S.

917 (1980); Maher v. Roe, 432 U.S. 464, 473 (1977). The HHS

regulations fail even this minimal test.

This Court’s decisions have made it clear that central to

the woman's privacy right is the opportunity to make an

informed decision. See Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747, 759, 762

(1986); City of Akron v. Akron Center for Reproductive Health,

11

462 U.S. 416, 429-30 (1983). As observed in another context

by the United States Court of Appeals for the District of

Columbia Circuit:

The root premise is the concept, fundamental

in American jurisprudence, that “[e]very human

being of adult years and sound mind has a right

to determine what shall be done with his own body

_..." True consent to what happens to one’s self

is the informed exercise of a choice, and that entails

an opportunity to evaluate knowledgeably the

options available and the risks attendant upon

each. The average patient has little or no

understanding of the medical arts, and ordinarily

has only his physician to whom he can look for

enlightenment with which to reach an intelligent

decision.

Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert.

denied, 409 U.S. 1064 (1972) (emphasis added) (footnotes

omitted), cited in Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. at 799 (White, J.,

dissenting).

The Second Circuit determined, on the basis of. Maher,

Harris, and Webster v. Reproductive Health Services, 109

S. Ct. 3040 (1989), that no one has the “right” to federally-

funded abortion counseling. State of New York v. Sullivan,

889 F.2d at 410-12. The lower court reasoned that a pregnant

woman, therefore, is left in the same position as if the

government had funded no counseling at all, and none of

her rights are infringed. /d. The conclusion, that the woman

is constitutionally unharmed by this funding decision, defies

reality, and constitutes a “shell game” with what is actually

being funded.

Despite the regulations’ disingenuous disclaimer that

pregnancy counseling and referral are now beyond the scope

of Title X family planning services, the rules do provide for

federal funding of a counseling and referral conversation

between health care professional and patient. The Title X

12

clinic is required to counsel the patient by telling her that

the project deems abortion to be an inappropriate option,

and it must refer her to providers of pre-natal care even

if she wants an abortion. 42 C.F.R. §59.8(b)(5) (1988). Rather

than simply refusing to subsidize counseling and referral,

the regulations endeavor to censor the contents of the funded

counseling and referral to conceal the abortion option from

the patient.

Therefore, the patient does not remain in the same position

as she would have been had the government decided not

to fund any Title X services. As found by the First Circuit:

We are particularly struck by the effect these

restrictions have on poor women who are forced

to rely on Title X clinics. They are significantly worse

off than they would have been if the government

had not provided the clinics because they have

received misinformation rather than no information

about their options. In addition, because most Title

X clients pay a portion of the cost of the services

(based on a sliding scale), the client’s ability to go

elsewhere has been significantly diminished

because she has already paid what she could afford

to the Title X clinic.

Massachusetts v. Secretary of Health and Human Services,

No. 88-1279, Slip. Op., 1990 U.S. App. LEXIS 4236, 52-53,

(1st Cir. March 19, 1990) (en banc).

The amended regulations pose a trap for the

unsophisticated and unwary patient. Although the exchange

between the woman and Title X professional has all the

appearances of government-sponsored counseling and

referral, from which the patient is likely to conclude she has

received full information, only incomplete counseling and

referral have occurred. Although information about abortion

is forbidden, information regarding pre-natal care must be

given to pregnant women. 42 C.F.R. §59.7 (1988).

Consequently, the patient has been affirmatively misled.

13

The government can therefore remain neutral, in the same

sense it has been deemed by this Court to remain neutral

in refusing to fund the entire abortion procedure, only by

refusing entirely to fund any counseling and referral

procedure. Neutrality can be accomplished only by either

full disclosure of all options or by refusal to discuss either

abortion or childbirth options with the patient, and by refusal

to make any referrals to either pre-natal care or abortion

service providers.’ Otherwise, the regulations do not simply

fail to remove obstacles to abortion; they create obstacles.

This case does not present a question which may be simply

resolved on the basis of the government's power to tax and

spend. The distorted information required to be dispensed

compromises the patient’s right to make a fully informed

choice. As found by the Eighth Circuit in striking down a

similar state ban on the use of state funds to counsel or

encourage abortion:

We think that the state’s analogy of its ban on

“encouraging or counseling” to bans on public

abortion funding is completely inapt. Missouri is

not simply declining to fund abortions when it

forbids its doctors to encourage or counsel women

to have abortions. Instead, it is erecting an obstacle

in the path of women seeking full and uncensored

medical advice about alternatives to childbirth. The

state’s limitation on doctor-patient discussions

reflects the state’s choice for childbirth over

abortion in a way that prevents the patient from

making a fully informed and intelligent choice.

Reproductive Health Services v. Webster, 851 F.2d 1071, 1080

(8th Cir. 1988), rev'd on other grounds, 109 S. Ct. 3040 (1989).

This finding was not disturbed in this Court’s Webster

decision. See supra at 4-5.

® This is not to say that a prohibition on any counselling or referral

would be consistent with the authorizing statute. See Petition of the

State of New York, ef a/. at 16-22.

14

In City of Akron v. Akron Center for Reproductive Health,

462 U.S. at 444-45, this Court struck down an ordinance

which required the physician to inform the patient of a

“parade of horribles” which implied that the abortion

procedure was particularly dangerous. The compulsory

provision of misinformation to the patient was deemed to

have imposed an “undue obstacie” to her freedom of

reproductive choice. Eventually, even two of the three

dissenters in City of Akron apparently agreed with this result:

| have no quarrel with the general proposition, for

which | read Akron to stand, that a campaign of

state-promulgated disinformation cannot be

justified in the name of “informed consent” or

“freedom of choice.”

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. at 800 (White, J., joined by Rehnquist,

J., dissenting).

One is unable to choose between two options if one is

kept unaware by the government that one has a choice at

all. Intentionally incomplete and misleading information about

one’s options is indistinguishable from the “disinformation”

at issue in City of Akron. Consequently, the result in this

case should be the same. Because the counseling and

referral required by the amended regulations create the

impression of full disclosure while concealing the option to

terminate pregnancy, the government has imposed an

impermissible obstacle to a woman's right to choose. This

Court should find the amended regulations violate the

constitutional privacy and liberty interests in freedom of

reproductive choice.

B. THE AMENDED REGULATIONS VIOLATE THE

FIRST AMENDMENT RIGHTS OF TITLE X

PATIENTS AND HEALTH CARE PROVIDERS.

Maher, Harris, and Webster held that the government's

control over its own purse strings justified a refusal to fund,

or permit on its premises, abortion procedures, while at the

15

same time funding and permitting childbirth procedures.

These cases did not reach the question whether the federal

government may use its considerable taxing and spending

powers to suppress speech regarding the advisability of

abortion.

The First Amendment right to give and receive information

about matters of great public concern remains firmly atop

the heirarchy of constitutional values. See e.g., Murdock v.

Pennsylvania, 319 U.S. 105, 115 (1943). And the right to give

and receive information about abortion has long been

recognized as enjoying First Amendment protection. Bigelow

v. Virginia, 421 U.S. 809 (1975). Because the contested rules

directly regulate speech, the reliance placed by HHS and

the Second Circuit on Maher, Harris, and Webster is

misplaced. Rather, this Court's decisions on government's

manipulation of First Amendment rights through its spending

powers mandate the opposite result.

in Consolidated Edison Co. v. Public Service Comm., 447

U.S. 530 (1980), this Court struck down a state regulation

which forbade a public utility from inserting into its billings

any discussion of ‘political matters,” including the

advisability of nuclear power. Naturally, public utilities are

heavily-regulated entities which enjoy a state subsidy in the

form of a state-created monopoly. /d. at 549 (Blackmun, J.,

dissenting). This Court noted:

The First Amendment's hostility to content-based

regulation extends not only to restrictions on

particular viewpoints, but also to prohibition of

public discussion of an entire topic... . If the

marketplace of ideas is to remain free and open,

governments must not be allowed to choose “which

issues are worth discussing or debating... .” To

allow a government the choice of permissible

subjects for public debate would be to allow that

government control over the search for political

truth.

id. at 537-38, quoting, Police Department of Chicago v.

16

Mosley, 408 U.S. 92, 96 (1972) (additional citations omitted).

Other of this Court's decisions have clearly suggested that

the government's privilege to subsidize or refuse to subsidize

speech ends where the funding choice is no longer content-

neutral. Regan v. Taxation with Representation, 461 U.S. 540

(1983), involved federal subsidies to charitable organizations

in the form of tax deductions for contributions to these entities.

This Court did hold that Congress could refuse to subsidize

all lobbying activities by 501(c)(3) charitable organizations

without violating those organizations’ First Amendment

rights. The Court was careful to point out, however, that the

restriction on deductability for lobbying was content neutral.

“The case would be different if Congress were to discriminate

invidiously in its subsidies in such a way as to’ “ai[m] at

the suppression of dangerous ideas.” ‘" /d. at 548, citing,

Cammarano v. United States, 358 U.S. 498, 513 (1959),

quoting, Speiser v. Randall, 357 U.S. 513, 519, reh. denied,

358 U.S. 860 (1958).

Similarly, in F.C.C. v. League of Women Voters, 468 U.S.

364 (1984), this Court struck down a prohibition on on-air

“editorializing” by publicly-subsidized educational television

stations. While arguing the content-neutral ban should be

upheld, as a permissible election not to subsidize on-air

editoralizing, the dissent noted:

This is not to say that the Government may attach

any condition to its largess; it is only to say that

when the Government is simply exercising its

power to allocate its own public funds. we need

Only find that the condition imposed has a rational

relationship to Congress’ purpose in providing the

subsidy and that it is not primarily” ' “aimed at the

suppression of dangerous ideas.” ‘”

ld. at 407, (Rehnquist, J., dissenting), quoting, Cammarano

v. United States, 358 U.S. at 513, in turn quoting, Speiser

v. Randall, 357 U.S. at 519, in turn quoting, American

Communications Assoc. v. Douds, 339 U.S. 382, 402 (1950).

See also Arkansas Writers’ Project v. Ragland, 481 U.S. 221

17

(1987).

Because the challenged regulations directly affect speech

in a viewpoint-discriminatory manner, and are manifestly

aimed at suppressing the “dangerous idea” of abortion, they

cannot be upheld on the basis of Maher, Harris, and Webster.

Rather, this Court has long held that the state may not

condition receipt of a valuable benefit on the forfeiture of

a constitutional right. In Perry v. Sindermann, 408 U.S. 593,

597 (1972), the Court declared:

For at least a quarter-century, this Court has

made clear that even though a person has no “right”

to a valuable governmental benefit and even though

the government may deny him the benefit for any

number of reasons, there are some reasons upon

which the government may not rely. It may not deny

a benefit to a person on a basis that infringes his

constitutionally protected interests—especially his

interest in freedom of speech .... This would allow

the government to “produce a result which [it] could

not command directly.”

citing Speiser v. Randall, 357 U.S. at 526 (tax exemption

subsidy cannot be conditioned on forced speech); see a/so,

Elrod v. Burns, 427 U.S. 347 (1976) (continued public

employment cannot be conditioned on forfeiture of rights

to political association); Sherbert v. Verner, 374 U.S. 398

(1963) (unemployment benefits cannot be conditioned on

relinquishment of religious Convictions).

Here, HHS conditions the grant of Title X subsidies to family

planning providers, and the grant of Title X-subsidized

counseling and referral services to needy women, on both

parties’ relinquishment of their mutual First Amendment rights

to exchange full and complete information about

reproductive choices. This cannot be done consistently with

the long-standing decisions of this Court.

18

C. THE AMENDED REGULATIONS IMPOSE

UNCONSTITUTIONAL CONDITIONS UPON THE

EXPENDITURE OF STATE FUNDS COMMITTED

TO TITLE X PROJECTS.

The amended regulations affect the ability of states to use

state revenues as they see fit to fund Title X projects. As

previously discussed, the amended regulations redefine

“Title X project” to include not only the federal Title X grant,

but also the state, local, or private funds which must be

committed to the Title X project. Therefore, the regulations

pose a Hobson's choice for any states which do not agree

that pregnant women are best served by state-enforced

ignorance of their options. The state must either forego all

federal aid for family planning services, or, to the extent it

supplies matching funds, spend those funds in a manner

the state might well find wholly objectionable. See supra

at 6-7.

The regulations run afoul of the Constitution’s Spending

Clause. U.S. Const. art. |, §8. In South Dakota v. Dole, 483

U.S. 203, 207-08 (1987), this Court recently summarized the

four separate constitutional limitations upon federal use of

its spending power to influence a state’s exercise of its own

constitutional powers: 1) the federal spending exercise

must be in pursuit of the “general welfare,” and Congress

is entitled to substantial deference in determining what the

“general welfare” is; 2) any conditions on state acceptance

of the grant must be unambiguous, in order that the state

may know in advance the consequences of its participation;

3) the conditions must be related to the purpose of the federal

expenditure; and 4) the federal spending power may not be

used to induce the states to engage in activities which are

themselves unconstitutional. The amended regulations fail

all four tests.

First, keeping women in the dark regarding their

reproductive options is not in anyone's best interest. Rather,

this approach is directly antithetical to the philosophy, firmly

embedded in the First Amendment, that the public interest

is best served by the free competition of ideas in the

19

marketplace of public opinion. Abrams v. United States, 250

U.S. 616, 630 (1919) (Holmes, J., dissenting). Further, as

eloquently detailed in the amicus brief of the American Public

Health Association, there are numerous circumstances under

which the absolute prohibition on abortion referral will result

in serious jeopardy to the health of the mother and will violate

sound medical practice. Moreover, it is impossible to give

deference to Congress’ determination of the public interest

when the amended regulations appear more a product of

administrative fiat than an expression of Congressional will.

See Petition of State of New York et al., pp. 16-24; Petition

of Dr. Irving Rust, et a/., pp. 20-27.

Second, some of the regulations impose conditions on

state spending which are far from clear. For example, 42

C.F.R. §59.9 (1988) requires that at least some personnel

or facilities used for “prohibited activities” be separate from

those used for Title X activities, even if the prohibited activities

are not funded by Title X. The separation requirements are

merely factors to be considered by the Secretary of HHS

in deciding whether a grantee is in violation of the regulations.

The rule contains virtually no standards from which HHS

bureaucrats may determine compliance, except that “mere

bookkeeping separation” is insufficient. /d. Participating

states will remain unsure under what circumstances they

may separately fund “prohibited” abortion counseling and

referral activities, without undergoing the crippling expense

of employing separate personnel or obtaining separate

physical facilities.

Third, Title X is, first and foremost, a public health program.

The amended regulations operate in a manner contrary to

the Congressionally-mandated purpose for the spending, in

the same manner that they operate contrary to the “public

welfare.” Fourth, the amended regulations would induce the

states to use state monies to support services performed

in such a way as to violate the constitutional rights of women

and health care professionals.

The new regulations far exceed a mere value judgment

affecting the expenditure of federal dollars. The regulaiory

20

scheme also conditions states’ participation in Title X upon

state acceptance of similar limitations on use of state funds,

regardless of state policy. And the rules construct obstacles

to the states’ separate funding of balanced counseling and

referral services which cannot be justified by the need for

separate accounting for grant funds. Therefore, the amended

regulations are unconstitutional under South Dakota v. Dole,

483 U.S. 203 (1987).

CONCLUSION

For all the foregoing reasons, the Court should grant the

Writ of Certiorari sought by Petitioners.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General

RITA S. EPPLER

Chief, Federal Litigation Section

(Counsel of Record)

JACK DECKER

Assistant Attorney General

A-1 A-2

APPENDIX A

(A) (B) (C) (D) (E) (F) (G)

Women

at or below Total

Total 150% of 1990 Non- MCH Columns

Women poverty Title X Award Title X State Block (C) - (G)

Ohio Dept.

of Health 87,787 73,137 $2,932,323 $3,219,015 $431,000 $275,000 $6,857,338

Federation For

Community

Planning

(Cleveland) 28,685 27,369 1,017,761 | 1,232,863 126,500 -0- 2,377,124

| :

Planned |

Parenthood

Summit,

Portage and

Medina |

Counties 15,051 13,490 525,230 . 1,518,763 55,000 -0- 2,098,993

Planned

Parenthood ;

Central Ohio 10,543 9,054 435,770 1,064,230 33,000 -0- 1,533,000

Totals 142, 066 123,050 $4,911,084 | $7,034,871 $645,500 $275,000 $12,866,455

38.17% 54.68% 5.02% 2.14% 100%

Notes: : ;

A. Total women provided family planning services through

Title X activities

B. The number of women in Column A whose incomes are

at or below 150% of the federal poverty guidelines.

C. Non-Title X includes first, second and third party

reimbursement such as patient fees, insurance and

Medicaid as well as agency operating funds.

D. The totals reflect funds that are subject to Title X

regulations.