Amicus Curiae Brief — Rust v. Sullivan

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y * FILED

CASE NOS. 89-1391, 89-1392 ,

In The Ai) JUL 27 tam

. -} JOSEPH F. s

United States Supreme Court © cice “CR

-_—

October Term, 1990

DR. IRVING RUST, et al.,

Petitioner,

V.

DR. LOUIS SULLIVAN,

Respondent.

and

THE STATE OF NEW YORK, et al.,

Petitioner,

V.

DR. LOUIS SULLIVAN,

Respondent.

ON CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF ANTHONY J. CELEBREZZE, JR.,

ATTORNEY GENERAL OF OHIO,

ON BEHALF OF HIMSELF AND THE

ATTORNEYS GENERAL OF THE STATES OF

ALASKA, CALIFORNIA, CONNECTICUT, DELAWARE,

MAINE, MINNESOTA, NEBRASKA, NEW JERSEY,

OREGON, TEXAS, VERMONT AND VIRGINIA,

AND THE CORPORATE COUNSEL FOR

THE DISTRICT OF COLUMBIA,

AMICi CURIAE IN SUPPORT OF PETITIONERS

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

RITA S. EPPLER

Chief, Federal Litigation Section

(Counsel of Record)

SUZANNE E. MOHR

JACK W. DECKER

Assistant Attorneys General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 466-5414

{Other Counsel Listed Inside Front Cover]

“ij.

QUESTIONS PRESENTED

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

et al., have presented four questions each for review. The

amici curiae herein wish to address the following:

1. Do new regulations promulgated by HHS

under Title X of the Public Health Service

Act which prohibit abortion counselling,

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?

2. Does the regulations’ prohibition of abortion

counselling and referral in a Title X-funded

program violate the woman's constitutionally

protected privacy right to make a fully

infomed decision on whether or not to

continue her pregnancy?

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QUESTIONS PRESENTED .... 1... cece cece eee eeees i

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TABLE OF CONTENTS

STATEMENT OF THE CASE ..... 2... eee eee eee enees

INTEREST OF AMICI CURIAE .........--- cece ences

SUMMARY OF ARGUMENT ...... 2... ee eee eeeeeees

ARGUMENT

THE TITLE X AMENDED REGULATIONS

WILL PROVIDE INCOMPLETE AND MiIS-

LEADING INFORMATION TO WOMEN

MAKING REPRODUCTIVE HEALTH DE-

CISIONS AND RESULT IN DETERIORATION

OF HEALTH CARE SERVICES TO LOW

INCOME WOMEN ............0eeeeeeeeeees

A. THE AMENDED REGULATIONS WILL

SUPPRESS THE FLOW OF COMPLETE

MEDICAL INFORMATION NECESSARY

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

B. THE AMENDED REGULATIONS WILL

RESULT IN DETERIORATION OF

HEALTH CARE SERVICES TO THOSE IN

MOST DESPERATE NEED .............

THE DECISION OF THE SECOND CIRCUIT

CONTRAVENES RULINGS OF THIS COURT

WHICH PROTECT THE PRIVACY, LIBERTY,

AND FIRST AMENDMENT INTERESTS OF

WOMEN IN MAKING INFORMED CHOICES

REGARDING REPRODUCTIVE HEALTH,

AND WHICH PROHIBIT THE USE OF

FEDERAL SPENDING TO INFLUENCE

IMPROPERLY A STATE’S DISPOSITION OF

ITS OWN RESOURCES ............--04-5-

~

A. THE AMENDED REGULATIONS IMPOSE

AN IMPERMISSIBLE OBSTACLE TO A

WOMAN'S PERSONAL REPRODUCTIVE

CHOICE IN VIOLATION OF HER LIBERTY

AND PRIVACY RIGHTS AS PRO-

< TECTED BY THE CONSTITUTION ..... 10

B. THE AMENDED REGULATIONS

VIOLATE THE FIRST AMENDMENT

RIGHTS OF TITLE X PATIENTS AND

HEALTH CARE PROVIDERS .......... 14

C. THE AMENDED REGULATIONS IMPOSE

UNCONSTITUTIONAL CONDITIONS

UPON THE EXPENDITURE OF STATE

FUNDS COMMITTED TO TITLE X

ET SECC C EWES eo S06 ode cceccccs 18

RNR E eee encccccccctcsccccescccce 20

APPmrn A= CALIFORNIA 2.0... ccc ccc ccc cee A-1

POE, cc ccc cess ccccccccccess A-3

APPENDIX C - MASSACHUSETTS .............. A-5

TENT A-7

Seek cc tnccccccecescces A-9

Eee A-11

APPENDIX G - VERMONT ...................5. A-13

PPT WUPUEIOED Coc cc ccc ccc cc cccccces A-15

iv

TABLE OF AUTHORITIES

CASES PAGE

Abrams v. United States,

EE ok cae oe bagebedewcvcceses 19

American Communications Assoc. v. Douds,

FS ES a a 17

Arkansas Writers’ Project v. Ragland,

GOP ETE nc cek crv cdccccctcccts gccese 17

Bigelow v. Virginia,

421 U.G. GOOD (IGBTS) .nccccvcccccccccccccccsBees 18

Cammarano v. United States,

SEB UAE, GERD cb ccc cc ccccccccccccccces 16, 17

Canterbury v. Spence,

464 F.2d 772 (D.C. Cir.), cert. denied,

Ss IEE bo ceicccsasesesedeieccccces 11

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) ............666-- 11,14

Connick v. Myers, “

CL SESE } 15

Consolidated Edison Co. v. Public Service Comm'n,

447 U.S. SSO (1GBD) 2 nc cccccccccccccccccceds 15, 16

Cruzan v. Missouri Dept. of Health,

58 U.S.L.W. 4916 (June 25,1990) ............... 11

Elrod v. Burns,

Se IE ndccobddyecoccececoocccesse 18

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

GED I bcc cecweecccccccccgences 16, 17

v

CASES PAGE

Griswold v. Cornecticut,

has oo. 0 s0 66 54k 00's 60460 66ee0 10

Harris v. McRae,

448 U.S. 297, reh. denied,

IPED “ooo ccccccccccccce 10, 14, 15, 17

Hodgson v. Minnesota,

58 U.S.L.W. 4957 (June 25,1990) ................ 6

Maher v. Roe,

in in sect cb avesbseee 10, 14, 15, 17

Massachusetts v. Secretary of Health and

Human Services, 899 ° 2d 53 (8th Cir. 1990) .... 1,12

Perry v. Sindermann,

EEE en ere 17

Planned Parenthood of Missouri v. Danforth,

ee ee ees etccceeees 6

Police Dept. of Chicago v. Mosley,

\ 40GB US. 92 (1972) ..... cece cece cece eeeee 16

e—

—— oéai x Taxation with Representation,

‘ IN gl 16

. -— Health Services v. Webster,

/ 851 F.2d 1071 (8th Cir. 1988),

_ rev'd on other grounds, 109 S. Ct. 3040 (1989) .... 13

Roe v. Wade,

EE 10

Rutan v. Republican Party of Illinois,

58 U.S.L.W. 4872 (June 21,1990) ............... 18

vi

CASES PAGE

Sherbert v. Verner,

PPP T rT Tr rer irrT: Ty 18

Speiser v. Randall,

357 U.S. 513, reh. denied,

re Cocco seeceeccnbekeuse 16, 17,18

South Dakota v. Dole,

ik ounce ogee sesecaseun 18, 20

State of New York v. Sullivan,

889 F.2d 401 (2d Cir. 1989) ............005- 6, 8, 11

Sullivan v. Massachusetts,

Case No. 89-1929, 1990 U.S.

rr ek tte be dbs eeec ees 1

Thornburgh v. American College of Obstetricians

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

United States v. Kokinda,

58 U.S.L.W. 5013 (June 27,1990) ............44.. 15

Webster v. Reproductive Health Services,

109 S. Ct. 3040 (1969) ............ 10, 13, 14, 15, 17

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS

U.S. Const. art. 1, Section 8 6... eee cece ee eee eeees 18

CO IE nb cb cnccenccéeccovcogane passim

Public Health Service Act, Title X, 42 U.S.C.A. Section 300

et seg. (West 1982) ...... cece cee ceeeeeeee passim

42 U.S.C.A. Section 300a-4 (West 1982) ............ 5

vii

PAGE

42 C.F.R. Section 59.2 (1988) ......... ccc cece eee 6,8

42 C.F.R. Section 59.8(a)(1) (1988) .............0eee 6

42 C.F.R. Section 59.8(a)(2) (1988) .............06.. 7

42 C.F.R. Section 59.8(a)(3) (1988) ............ cee. 7

ee cca cncccvcescosceees 7

42 C.F.R. Section 59.8(b)(3) (1988) ............000ee 7

42 C.F.R. Section 59.8(b)(4) (1988) .............00.. 7

42 C.F.R. Section 59.8(b)(5) (1988) ............4.. 7,12

42 C.F.R. Section $0.9 (1968) .....ccccccccccccecs 19

SO PO CU UU «cc ccccccccccccccvcccceces 7

OTHER AUTHORITIES

Comment, The Title X Family Planning Gag Rule:

Can Government Buy Up Constitutional Rights?

of S& 6 fr rrr 8

Dryfoos, Family Planning Clinics - A Story of

Growth and Conflict, 20 Fam. Plan. Persp.

PE ME CGEM aONG de bbb b64 pedcseccccccccoes 15

Forrest, Delivery of Family Planning Services In

The United States, 20 Fam. Pian.

EEE 5, 6, 7

Forrest and Singh, Public-Sector Savings Resulting

from Expenditures for Contraceptive Services,

22 Fam. Plan. Persp.6 (1990) .........cccceceees 9

vill

PAGE CASE NOS. 89-1391, 69-1392

Gold and Guardado, Public Funding of Family Planning, In The

Sterilization, and Abortion Services, 1987, United States Supreme Court

20 Fam. Plan. Persp. 228 (1988) .....seeeeeeeeens 5 |

October Term, 1969

McCarthy, The Prohibition on Abortion Counseling

and Referral in Federally-Funded Family Planning OR. IAVING AUST, et al.,

Clinics, 77 Calif. L. Rev. 1181 (1989) .... cece eeees 6 Petitioners,

v.

Rosoff, Taking Family Planning Out of Title X: DA. LOUIS SULLIVAN,

The Impact of the Proposed New Regulations, Respondent.

19 Fam. Plan. Persp. 222 (1987) cece cccccceees 6, 8 and

THE STATE OF NEW YORK, et ai.,

Torres and Forrest, Family Planning Clinic Services Petitioners,

in U.S. Counties, 1983, 19 Fam. Plan. -

Persp. 54 (1987) ccc ccc c cece ces eeessesseaseees a DA. LOUIS SULLIVAN,

Respondent.

BRIEF OF AMICUS CURIAE

STATE OF OHIO IN SUPPORT OF PETITIONERS

| STATEMENT OF THE CASE

Amici rely on the statement of the case set forth in the

Petitioner's brief.

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, Delaware, Maine, Minnesota, Nebraska, New

Jersey, Oregon, Texas, Vermont and Virginia, and the

corporate Counsel for the District of Columbia.‘ Amici either

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

of the Nationa! Family Planning and Reproductive Health Association

(NFPRHA) ark! are plaintifis-appetiees in Massachusetts v. Secretary

of Health and Human Services, 899 F.2d $3 (6th Cir. 1990). This Court

denied a motion to consolidate the Massachusetis case with the instant

case. See Sullivan v. Massachusetts, Case No. 89-1929, 1990 U.S. Lexis

3528. The attorney general of Massachusetts is filing an amicus brief

and supports this amicus brief.

participate directly as Title X grantees, or have public or

private Title X grantees within their borders, through which

health care services are provided to hundreds of thousands

of citizens.2 Amici now join together to urge this Court to

reverse the judgment below.

The amended regulations to the Public Health Service Act,

Title X, if permitted to go into effect, will force the amici

to choose between accepting federal Title X funds under

an objectionable program, and forfeiting receipt of Title X

funding altogether. The former option will result in the

invasion of the physician-patient relationship and the first

amendment rights of both patients and health care providers;

the transmittal of incomplete, misleading, and in some cases,

medically dangerous information to pregnant women, and

the ultimate frustration of the right to make an informed,

independent decision whether to terminate a pregnancy. The

latter option will reduce the monies available to fund family

planning services. Either option will seriously undermine

effective family planning and related health care services

for low income women.

Agencies which both receive and disburse Title X funds

have a unique interest in the amended regulations. Most

of the amici provide matching funds from their own revenues

to support Title X projects. The regulations, as amended,

would expand the definition of “Title X Project” to require

that non-federal funds also be used to provide women with

misleading and possibly medically dangerous information

which will undermine their right of choice. The amendments

will impede the capacity of the amici to allocate state or

local funds to provide balanced post-conception counselling

and referral services even outside the ambit of the federal

Title X program.

2 All of the amici states have local Title X grantees within their borders.

State agencies in the amici states of Uhio, Ca'ifornia, Nebraska, Oregon,

Texas and The District of Columbia participate directly in the Title X

program.

SUMMARY OF ARGUMENT

Amici support and join in the arguments presented by

Petitioners and the American Public Health Association, et

al. This brief, however, will focus on issues of particular

concern to Ohio and the other amici.

The regulations at issue will result in provision of slanted

and misleading information to women and will undermine,

rather than promote, each woman's right to make an informed

reproductive health decision. The regulations require a Titie

X physician to violate sound medical practice and

professional ethics; unless the patient's life is in immediate

danger, the amended regulations forbid a Title X physician

from discussing the abortion option with a woman even when

the abortion may be advisable to protect her health.

Consequently, the health of many patients will be jeopardized.

Many Title X providers are likely to refuse further participation

in the program should the regulations go into effect. The

low income women served by the program will have no

alternative sources of care. Inevitably, fewer women will

receive any family planning services. Consequently,

unintended pregnancies will increase, and government costs

for medical treatment, social services, and subsistence

payments will soar.

The amended regulations cannot be upheld under the

government's discretion not to fund certain programs,

because the amendments curtail pure speech, and do so

in a content-discriminatory manner. The regulations require

the dissemination of information about childbearing but

censor speech about abortion. The rigid exchange mandated

between patient and health care professional bears the

imprimatur of a government program, upon which the patient

relies for full information about her choi :es. In fact, the option

to terminate her pregnancy has no’ been disclosed. By

intentionally misleading the patient r garding her choices,

the regulations impose an impermissible obstacle to a

woman's liberty and privacy rights to make an informed

reproductive health decision.

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 care professional must relinquish their first

amendment rights to exchange information about the

termination of pregnancy. The first amendment prohibits the

federal government from imposing this gag on pure speech.

Finally, the regulations extend far beyond a mere restriction

on the use of federal iunds. They redefine the scope of the

Title X project in such a way that matching funds provided

by amici would be swept within the new rules. The

amendments do 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. These conditions on the expenditure

of state monies exceed constitutional limits on the spending

power of Congress.

ARGUMENT

|. THE TITLE X AMENDED REGULATIONS WILL

PROVIDE INCOMPLETE AND MISLEADING

INFORMATION TO WOMEN MAKING

REPRODUCTIVE HEALTH DECISIONS AND

WILL RESULT IN DETERIORATION OF

HEALTH CARE SERVICES TO LOW INCOME

WOMEN.

Title X of the Public Health Service Act authorizes grants

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

establishment and operation of voluntary family planning

projects,” primarily for low income families. 42 U.S.C.A.

Sections 300, et seq. (West 1982). Direct or indirect Title

X grantees include state, county, and municipal health

departments, family planning clinics, hospitals and

community health organizations. Nationwide, there are about

2,500 diffe-ent agencies operating some 5,100 clinics; eighty

V

percent of these receive Title X funding. Clinics operated

by public health departments serve about forty percent of

family planning patients. Forrest, Delivery of Family Planning

Services in the United States, 20 Fam. Plan. Persp. 88, 92

(1988) [hereinafter Delivery of Services ].

In 1987, federal and state governments spent a total of

386 million dollars for family planning services. Title X grants

accounted for thirty-four percent of this total. Other federal

funding sources included Medicaid reimbursement, Social

Services block grants, and Maternal and Child Health block

grants. State governments provided thirteen percent of the

total public funding for family planning services. Gold and

Guardado, Public Funding of Family Planning, Sterilization

and Abortion Services, 1987, 20 Fam. Plan. Persp. 228 (1988).

States which receive Title X funds are required to provide

a minimum of ten percent in matching funds. 42 U.S.C.A.

Section 300a-4 (West 1982).-

A sampling of eight amici states shows over 1.1 million

women received family planning services through Title X

regulated programs in these states alone.* See Appendices

A-H. Public funding from combined sources in these eight

States amounted to over 117 million dollars, twenty-eight

percent of which was from federal Title X grants. /d. The

eight states provided twenty percent of family planning

services support for a total contribution of more than 24

million dollars. /d.

Nationwide, subsidized ciinics serve nearly five million

women per year. Ninety percent of these women receive

pregnancy prevention services. Nine percent of all visits

(thirteen percent of all initial visits, and twenty percent of

all visits by teenagers) involve a pregnancy test. Only about

four percent of all patients are pregnant when they come

* California, Maine, Massachusetts, Ohio, Vermont and Virginia provided

Statistics showing ihe total women served in 1989 and funds allotted

for 1990. See Appendices A-C, © and G-H. Nebraska and Texas provided

statistics showing the total women served and funds allotted for calendar

year 1989. See Appendices D and F.

to the clinic. Rosoff, Taking Family Planning Out of Title X:

The Impact of the Proposed New Regulations, 19 Fam. Plan.

Persp. 222, 223 (1987) [hereinafter New Regulations ].

The Title X clientele is composed of those women in

greatest need of objective information about their health and

pregnancy options, and those least able to obtain that

information independent of public assistance. Eighty-three

percent of clinic patients have incomes below 150 percent

of the poverty line. Thirteen percent receive welfare. Thirty-

two percent are under 20 years of age, and 14 percent are

under 18 years of age. Delivery of Services at 92. A teenager

is in particular need of “mature advice and emotional

support” in making the “grave decision” whether to carry

a child to term. Hodgson v. Minnesota, 58 U.S.L.W. 4957,

4974 (June 25, 1990) (Kennedy, J. Concurring and

Dissenting). See also, Planned Parenthocd of Missouri v.

Danforth, 428 U.S. 52, 91 (1976) (Stewart, J., Concurring).

A. 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 federal funds to inform women of the availability

of abortion, the United States Department of Health and

Human Services (hereinafter HHS) elected to accomplish the

same result in 1987 by edministratively “reinterpreting” the

Act. See McCarthy, The Prohibition on Abortion Counseling

and Referral in Federally-Funded Family Planning Clinics,

77 Calif. L. Rev. 1181, 1183 (1989). In so doing, HHS rejected

its own longstanding position that the Act required “non-

directive” counselling 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 regulations now declare the Title X family

planning function must terminate with pregnancy and forbid

the clinic to provide counselling or referrals for an aboriion.

42 C.F.R. Sections 59.2 and 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,” except when an emergency abortion is

required to protect the life of the mother. 42 C.F.R. Section

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. Section 59.8(a)(3) and (b)(4) (1988). Under the amended

regulations a physician would be preciuded from raising the

issue of abortion or responding to questions raised by a

patient, even if childbearing would threaten the health of

the mother, or pose a non-emergency threat to the life of

the mother. 42 C.F.R. Section 59.8(b) (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 response, scripted by the amended

regulations, must be, “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 heip

[you] to obtain pre-natal care .. .” 42 C.F.R. Section 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 have been excised.‘ The list may neither

include an abortion clinic, nor exclude a provider of pre-

natal services. 42 C.F.R. Sections 59.8(b)(3) and (b)(4) (1988).

A woman requesting abortion referral services may not even

be given the Yellow 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). )

* This requirement censors referrals to most possible abortion sources

for low income women. Eighty-three percent of all induced abortions

are performed at specialized abortion clinics. in 1983, only three percent

of family practitioners and forty-two percent of gynecologists would

provide an abortion. Delivery of Services at 90.

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 telephone book

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

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

regulations not only frustrate a woman's individual choice,

but also affect the entire health care system for low income

women.

B. THE AMENDED REGULATIONS WILL RESULT

IN DETERIORATION OF HEALTH CARE

SERVICES TO THOSE IN MOST DESPERATE

NEED.

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. Section 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 is gagged as well.

lf subjected to the new regulations, fewer practitioners will

remain available to serve Title X patients. The right to

informed consent based on full information is central to the

codes of ethics for all professional groups which provide

pregnancy-related services. See New Regulations’ at 224.

The National Family Planning and Reproductive Health

Association (NFPRA), which represents eighty-five percent

of Title X recipients, predicts that the majority would refuse

to subject themselves to the new regulations. Comment, The

Title X Famiiy Planning Gag Rule Can the Government Buy

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

Providers of family planning services to low income women

cannot easily be replaced. As it is, of the 9.5 million women

in this country with family incomes below 150 percent of

the poverty level, 4.5 million are receiving no organized family

planning services. Torres and Forrest, Family Planning Clinic

Services in U. S. Counties, 1983, 19 Fam. Plan. Persp. 54,

57 (1987).

Publicly funded family planning services, which will be

sacrificed because of ideoiogical objections to balanced

counselling and referral for the four percent of Title X patients

who are pregnant, play an indispensable role in preventing

millions of unintended pregnancies. Researchers estimate

the use of contraceptives from publicly funded sources is

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). Savings in public

social service and welfare costs from contraceptive use by

women relying on publicly funded providers ;epresents up

to $11.26 for each dollar spent to provide family planning

services; the annual savings is an estimated 4.6 billion dollars.

Id. at 11-12. Thus a cost beneficial program is scuttled to

prevent four percent of the women it serves from discovering

that they may obtain an abortion.

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. If states forego

Title X assistance, less funding will remain to subsidize Title

X services. if states remain in the program, their own funds

will be held hostage to requirements with which the states

may vehemently disagree, many providers will refuse to

participate, and those who remain will be required to conceal

options when medical judgment may mandate disclosure.

Either way, services to low income women and teenagers

will suffer.

ll. THE DECISION OF THE SECOND CIRCUIT

CONTRAVENES RULINGS OF THIS COURT

WHICH PROTECT THE PRIVACY, LIBERTY,

AND FIRST AMENDMENT INTERESTS OF

WOMEN IN MAKING INFORMED CHOICES

REGARDING THEIR REPRCDUCTIVE

HEALTH, AND WHICH PROHIBIT THE USE

10

OF FEDERAL SPENDING TO INFLUENCE

IMPROPERLY A STATE’S DISPOSITION OF

ITS OWN RESOURCES.

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. (1989),

notwithstanding a woman's constitutional right to freedom

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

Griswold v. Connecticut, 381 U.S. 479 (1965). This Court's

decision in Webster did not address the issues presented

herein, as the majority concluded the first amendment

question presented by the prohibition of abortion counselling

and referral by publicly funded family planning clinics was

moot. 109 S. Ct. at 3053-54. It was noted iat 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/ dissenting).

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 terminate her pregnancy may enjoy, it is clear that,

at the very least, the government may not impose obstacles

to thwart the abortion decision. Harris v. McRae, 448 US.

at 314; Maher v. Roe, 432 U.S. at 473. The HHS regulations

fail even this minimal tes

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

11

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

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

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

beirg 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); see also Cruzan v. Missouri Dept. of Health, 58

U.S.L.W. 4916, (June 25, 1990).

The Second Circuit determined, on the basis of Maher,

Harris, and Webster, that no one has the “right” to federally-

funded abortion counselling. 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 counselling at all, and none of

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

is constitutionally unharmed by this funding decision, defies

reality, and constitutes slight of hand with what is actually

being funded.

Despite the regulations’ disingenuous disclaimer that

pregnancy counselling and referral are now beyond the

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

12

for federal funding of a counselling and referral conversation

between health care professional and patient. The Title X

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 inquires about an abortion. 42 C.F.R. Section 59.8(b)(5)

(1988). Rather than simply refusing to subsidize counselling

and referral, the regulations endeavor to censor the contents

of the funded counselling 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,

899 F.2d 53, 70 (ist Cir. 1990) (en banc).

The amended regulations pose a trap for the

unsophisticated and unwary patient. The exchange between

the woman and Title “ professional has all the appearances

of government-sponsored counselling and referral, from

which the patient is likely to conclude she has received full

‘nformation. But only an incomplete counselling and referral

has occurred, and the patient has been affirmatively misied.

The government can therefore arguably remain neutral,

in the same sense it has been deemed by this Court to remain

13

neutral in refusing to fund the entire abortion procedure,

only by refusing entirely to fund any counselling and referral

procedure. Neutrality can be accomplished only either by

full disclosure of all options or by refusal to discuss e/ther

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

simiiar 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 Counselling” 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 10.

course, a refusal to provide any counselling or referral would not

with the authorizing statute. 42 U.S.CA Sections 300,

et seq. (West 1962). Nor would a ban on providing any information about

health risks on abortion necessarily comport with the woman's privacy

and liberty interests in informed consent, or with the first amendment

14

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

462 US. 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. Deliberately incomplete and misieading 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 counselling 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 violaie 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, Har,is, 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

16

same time funding and permitting childbirth procedures.

These cases did not reach the question whether the federal

government may use its considerable taxing and

abortion. Because the contested rules directly suppress

speech, the reliance placed by HHS and the Second Circuit

on Maher, Harris, and Webster is misplaced.

Certainly, the government may constitutionally warn its

citizens of the risks of smoking or the evils of drug abuse.

A traditional public health campaign is designed to impart

information, not to censor it — to pe/suade, not to manipulate.

The HHS regulations, however, embody a program of official

subterfuge, the thrust of which is not merely to take sides

in the abortion debate, but to squelch any debate by hiding

the abortion option. As opposed to persuasion, official

manipuration and censorship offend the core values of the

first amendment.

This case does not invoive internal management of a

proprietary governmental operation, United States v. Kokinda,

58 U.S.L.W. 5013, 5014-15 (June 27, 1990) (plurality opinion),

or the rights of government employees, Connick v. Myers,

461 US. 138 (1983), where first amendment rights must

sometimes yield to the government's interests as an

employer. Here the government is granting a subsidy to

private or independent public health care professionals,

. Dryloos,

Family Planning Clinios-A Story of Growth and Contlict 20 .

Fam. Plan. Persp. 262, 283 (1968). The decisions of this Court

are Clear that the government carinot condition receipt of

a government subsidy upon manipulation of first amendment

rights of the grantees.

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

3

;

:

ai

ii!

te

ule

16

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.

ld. at 537-38, quoting, Police Dept. of Chicago v. Mosley,

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

Other decisions of this Court 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.held that Congress could refuse to subsidize all

lobbying activities by 501(c)(3) cheritable organizations

without violating those organizations’ first amendment righis.

This Court was careful to point out, however, that the

restriction on deductability for lobbying was content neutral.

“The case wouid 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 of 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:

17

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

(1987).

Because the challenged regulations directly affect speech

in either a content-or 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 |.is

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

18

Rutan v. Republican Party of Illinois, 58 U.S.L.W. 4872 (June

21, 1990); Elrod v. Burns, 427 U.S. 347 (1976) (conditions

of 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).

Clearly, the federal government could not condition tax

benefits to Title X clinics on whether abortions were advised.

Nor could all welfare benefits be cut off to women who

advocate abortion. Nor may HHS condition the grant of Title

X subsidies to family planning providers, and the grant of

Title X subsidized counselling and referral services to low

income women, on both parties’ relinquishment of their

mutual first amendment rights to exchange full and complete

information about reproductive choices. See Bigelow v.

Virginia, 421 U.S. 809 (1975).

C. THE AMENDED REGULATIONS IMPOSE

UNCONSTITUTIONAL CONDITIONS UPON

THE EXPENDITURE OF STATE FUNDS

COMMITTED TO TITLE X PROJECTS.

In addition to jeopardizing seriously the interests of women

in full information regarding their reproductive health, and

inhibiting the ability of health care professionals to provide

this information, the amended regulations also affect the

ability of states to use state revenues as they see fit to fund

Title X projects. The amended regulations redefine “Title X

project” te include not only the federal Title X grant, but

also state, lwcal, or private funds.

The regulations run afoul of the Constitution's Spending

Clause. U.S. Const. art. |, Section 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” may be; 2) any conditions on state

19

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

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 intent.

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

of Dr. Irving Rust, pp. 20-27.

Second, some of the regulations impose conditions on

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

C.F.R. Section 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.

ld. Participating states will remain unsure under what

circumstances they may separately fund “prohibited”

abortion counselling 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 a manner that violates the constitutional rights of women

and health care professionals.

The new regulations reflect far more than a value judgment

affecting the expenditure of federal doliars. The regulatory

scheme also conditions states’ participation in Title X upon

state acceptance of identical limitations on use of state funds,

regardless of state policy. And the rules construct obstacles

to the states’ separate funding of balanced counselling and

referral services which cannot be justified by the need to

account separately for Title X funds. Therefore, the amended

regulations are unconstitutional under South Dakota v. Dole.

CONCLUSION

For all the foregoing reasons, the Court should reverse

the decision of the Second Circuit Court of Appeals.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General

RITA S. EPPLER

Chief, Federal Litigation Section

(Counsel of Record)

SUZANNE E. MOHR

JACK DECKER

Assistant Attorneys General

State Office Tower, 26th Floor

30 E. Broad Street

Columbus, Ohio 43266-0410

(614) 466-5414

A-2

A-1

CALIFORNIA

(D) (E) (F) (G)

(A) . (B) (C)

at or Total

below Non- State MCH Columns

Total 150% of Title X Title X Funds Block (C) - (F)

Women poverty Award

Los Angeles

ional Famil

adie . $9,127,980 $7,505,700 N/A $21,475,011

Council 151,609 129,949 $4,841,331

California

Family

Planning 18,739,469 N/A N/A 26,222,818

Council 262,959 216,391 7,483,349

7,867,449 _ $7,505,700 _$ N/A _ $47,697,829

TOTALS 414,568 346,340 1 4,680 58.42% 15.74% 100%

25.84%

NOTES:

1. Total number of women served and dollars reflected

represents Basic Contraceptive Services for fiscal year

1988-1989.

2. N/A = Information is not available.

3. Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

peverty guidelines.

4. The total of Columns C-F reflects funds that are subject

to Title X regulations.

5. California Family Planning Council (CFPC) requires

reporting by agencies of non-Title X funds. This total

amount, including state funds, is reflected in Column (D).

A detailed breakdown of non-Title X funds is not available

for CFPC.

Ce ee ee

Se ae ee Sh ee oe me eee ee lL - a =~ a ee 2

A-3 A-4

MAINE

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

Women

at or

below Total

Total 150% of Title X Non- State MCH Columns

| Women poverty Award Title X Funds Block (C) - (F)

Family

Planning

Association

of Maine 32,460 24,353 $818,000 $1,875,000 $1,440,000 $ -0O- $4,133,000

19.79% 45.37% 34.84% 100%

NOTES:

1. Total number of women served (Column A) reflects 1989

figures. The balance of the Columns (C-G) reflect figures

from fiscal year 1990.

2. Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

poverty guidelines.

3. The total of Columns C-F reflects funds that are subject

to Title X regulations.

——e) lu eee

A-5

MASSACHUSETTS

(A) (B) (C)

Women

at or

below

Total 150% of Title X

Women _poverty _ Award

Family Planning

Clinics 88,000 76,560 $3,055,425

37.47%

NOTES:

1.

Total number of women served (Column A) reflects 1989

figures. The balance of the columns (C-G) reflect figures

from calendar year 1989.

Column B reflects the number of womon in Coiumn A

whose incomes are at or below 200% of the federal

poverty guidelines.

The total of Columns C-F reflects funds that are subject

to Title X regulations.

30.16

ee ee ee

A-7

NEBRASKA

(A) (B) (C)

3 Women

at or

below

Total 150% of Title X

Women _poverty | Award

Nebraska

Department

of Health 24,521 19,369 $935,000

41.28%

NOTES:

1. Total number of women served (Column A) reflects 1989

figures. The balance of the Columns (C-G) reflect actual

figures from fiscal year 1989.

2. Total in Column A reflects unduplicated female users.

3. The total in Column B reflects the total unduplicated

female users in Column A whose incomes are at or below

150% of the federal poverty guidelines.

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

reimbursement such as patient fees, insurance, and

medicaid as well as funds from other source.

5. Maternal and Child Health Block Grant.

A-9

A-10

OHIO (D) (E) (F) (G)

(A) (B) (C)

Women Total

— Non- State MCH Columns

Total 150% of Title X Title X Funds Block _(C) - (F)

Ww Award

| omen -Powerty wer $3,219,015 $431,000 $275,000 —$6,857,338

Ohio Dept.

Of Health 87,787 73,137 $2,932,323

Federation

For Community 1,232,863 126,500 -0- 2,377,124

Planning

(Cleveland) 28,685 27,369 1,017,761

Planned

Parenthood

Cun Pevtnge 1,518,763 55,000 -0- 2,098,993

and Medina

Counties 15,051 13,490 525,230

Planned

Parenthood _—s

Central Ohio 10,543 9,054 435,770 126200 $3,000 g 1,533,000

TOTALS 142,066 123.050 $4,911,084 $7,034,871 $645,500 $275,000 $12,866,455

act — 54.68% 5.02% 2.14% 100%

38.17%

NOTES:

5. The total of Columns C-F reflects funds athat are subject

1. Total Women provided family planning services through to Title X regulations.

Title X activities.

2. Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

poverty guideiines.

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

reimbursement such as patient fees, insurance and

medicaid as well as agency operating funds.

~

=

—,

A-11

TEXAS

(A) (B) (C)

Women

at or

below

Total 150% of Title X

Women __ poverty Award

Texas Dept.

of Health 328,497 244,730 $7,960,524

28.99%

NOTES:

1. Total number of women served (Column A) reflects 1989

figures. The balance of the columns (C-G) reflect figures

from calendar year 1989.

2. Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

poverty guidelines.

3. The total of Columns C-F reflects funds that are subject

to Title X regulations.

4. Column D includes additional state money jin th form

\. Of matching funds which cannot be distilled from the

‘other funds.

(D)

Non-

Title X

$13,502,198

49.16%

oY) aoe ee 2

A-12

(E) (F) (G)

Total

State MCH Columns

Funds Block (C) - (F)

$3,540,301 $2,460,209 $27,463,232

12.89% 8.96% 100%

A-13

VERMONT

(A) (B) (C)

Women

at or

below

Total 150% of Title X

Women poverty Award

Planned

Parenthood of

Northern

New England 11,650 6,443 $425,962

Vermont

Department of

Health 6,358

TOTALS 11,650 6,443 $432,320

24.98%

NOTES:

1.

Total number of women served (Column A) reflects 1989

figures. The balance of the Columns (C-G) reflect figures

from fiscal year 1990.

Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

poverty guidelines.

The total of Columns C-F reflects funds that are subject

to Title X regulations.

Vermont agency statistics do not contain a breakdown

of patients at or below 150% of poverty by gender. Since

98% of all Title X patients were women, we assume that

98% of those in poverty were women. See Column B.

Pianned Parenthood of Northern New Engiand receives

the funds in Column C for services provided under

contracts with the Vermont Department of Health.

A-14

(D) (E) (F) . (G)

Total

Non- State MCH Columns

Title X Funds Block (C) - (F)

$1,040,940 $257,076 $-0- $1,723,978

$-0- 6,358

1,040,940 $257,076 $- 0 - $1,730,336

60.16% 14.86% 100%

6. Column D is the sum of patient fees: $923,044; Medicaid;

$77,109; tuition /fees: $18,475; and miscellaneous agency

funds: $22,312.

A-15

VIRGINIA

(A) (B) (C)

Women

at or

below

Total 150% of Title X

Women poverty Award

Department

of Health 82,704 68,644 $2,590,818

18.93%

NOTES:

%.

Total number of women served (Column A) reflects 1989

figures. The balance of the Columns (C-G) reflect figures

from fiscal year 1991.

Column B reflects the number of women in Column A

whose incomes are at or below 150% of the federal

poverty guidelines.

The total of Columns C-F reflects funds that are subject

to Title X regulations.

Column E includes local department of health funds

because under Virginia Code Ann. §32.1-31 (1950) as

amended, the local departments of health are state

agencies.

(D)

A-16

(E) (F) (G)

Total

State MCH Columns

Funds Block (C) - (F)

$8,791,995 $1,749,907 $13,688,880

64.23% 12.78% 100%