Amicus Curiae Brief — Rust v. Sullivan

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Supreme Court of the United States

OCTOBER TEKM, 1990

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

situated, Dk. MELVIN PADAWER, On behalf of himself, his patients, and

all others similarly situated, MEDICAL AND HEALTH RESEARCH

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

NEW YORK CiTy, INC., PLANNED PARENTHOOD OF WESTCHESTER/

ROCKLAND, and HEALTH SERVICES OF HUDSON COUNTY, NEW ©

JERSEY, Petitioners,

_V—

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

Department of Health and Human Services, Respondents.

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

THE NEW YORK CITY HEALTH & HOSPITALS CORP,

Petitioners,

_—V—

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

Department of Health and Human Services,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

————— ———

BRIEF OF AMICI CURIAE NOW LEGAL DEFENSE AND

EDUCATION FUND AND 117 ORGANIZATIONS

COMMITTED TO WOMEN’S EQUALITY

IN SUPPORT OF THE PETITIONERS

(List of Amici Curiae on inside cover)

—

Sarah E. Burns ’ John H. Hall

Alison Wetherfield Counsel of Record :

NOW LEGAL DEFENSE AND Geoffrey H. Coll '

EDUCATION FUND Claudia A. Lewis

99 Hudson Street Randi J. Roberts .

i2th Floor Mallika Dutt

New York, New York 10013 DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

Attorneys for Amici Curiae

-_-

S ITNT LOLOL ETE LE LEP DELLE ELLA LEE CELLED LOOSE LAE ITIL LAD TEES

AMICI CURIAE

Abortion Rights Mobilization International Agency for Minority

ActionAIDS Artist Affairs

All Peoples Congress Jessie Smith Noyes Foundation

American Association of University League of Women Voters of the

Women United States

American Humanist Association MADRE

American Jewish Committee Men of All Colors Together

Americans for Religious Liberty New York

Asian American Legal Defense anu Mobilization for Youth Health

Education Fund Services, Inc.

Association for Voluntary Surgical Ms. Foundation For Women

Contraception My Sister’s Place

Association for Women in Washington, D.C.

Psychology My Sister’s Place

AWARE New York

Beverly Hills Bar Association Nation Institute

Black Women’s Agenda, Inc. National Abortion Rights Action

Bradford County Coalition for League

Choice National Association of

Brooklyn Women’s Political Caucus Commissions for Women

California Women Lawyers Nationa! Center for Lesbian Rights

Canadian Abortion Rights Action National Coalition Against

League Domestic Violence

Center for Law & Social Justice National Council of Jewish Women

Center for Public Representation National Council for Research »n

Colorado Women’s Bar Association Women

Columbia-Greene Rape Crisis National Latina Health

Center Organization

Committee for Hispanic Children National Law Center on

and Families Homelessness and Poverty

Committee to Defend Reproductive National Lawyers Guild

Rights National Medical Association

CHOICE National Organization for Women

Disabled in Action of National Republican Coalition for

Metropolitan New York Choice

Equal Rights Advocates, Inc. National Woman Abuse Prevention

Federation of Feminist Women’s Project

Health Centers National Women’s Health Network

Feminist Institute National Women’s Law Center

Hispanic Health Council National Women’s Political Caucus

Human Rights Campaign Fund New Directions for Women

Institute for Women’s Policy New Jewish Agenda

Research New York Asian Women’s Center

— =

New York City Coalition for

Women’s Mental Health

New York Coalition of 100 Black

Women

New York Pro-Choice Coalition

New York State Republican Family

Committee

New York University Law Women

New York Women in Criminal

Justice

Northwest Women’s Law Center

Older Women’s League

Organization for Obstetric,

Gynecologic, and Neonatal

Nurses

Pathfinder Fund

Pembroke Center for Teaching and

Research on Women

Brown University

Project Choice: AIDS Education

for Women of Color

Project on Women & Disability

Queen’s Bench Bar Association of

the San Francisco Bay Area

Racism & Homophobia in the

Media Project

Radical Women

Rainbow Lobby, Inc.

Reproductive Health Services

San Francisco Women Lawyers

Alliance

Santa Fe Health Education Project

Sex Information and Education

Council of the United States

Southern California Women’s Law

Center

Students and Youth Against Racism

Students Organizing Students

Tucson Women’s Commission

Union of American Hebrew

Congregations

United Auto Workers District 65

Unitarian Universalist Association

Unitarian Universalist Women’s

Federation

United Church

Board for Homeland Ministries

United Synagogue of America

VOICES In Action

Voters for Choice

Woman's Law Project

Women and AIDS Coalition

Women for Racial and Economic

Equality

Women in Crisis Committee

Womenspace

Women USA

Women’s Bar Association of Illinois

Women’s Bar Association of

Massachusetts

Women’s Bar Association of the

State of New York

_ Women’s City Club of New York,

Inc.

Women’s Educational Center, Inc.

Women’s Equal Rights Legal

Defense and Education Fund

Women’s Health Action and

Mobilization

Women’s International Resource

Exchange

Women’s Legal Defense Fund

Women’s Project

Women’s Studies Program

Hunter College, City University

of New York

Yale University

Workers World Party

Worldwatch

Yale Journal of Law and Feminism

YWCA of the USA

Zero Population Growth

Se ere. ee ~ C

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........-.--eeeeeeeee ii

INTEREST OF AMICI CURIAE............-..+45- |

SUMMARY OF ARGUMENT ...........-.-5+e00: ]

PRGUIMIIINT cece ccc decccccccvesccccccccccccccce 2

I. THE REGULATIONS UNDULY BURDEN A

WOMAN’S FUNDAMENTAL PRIVACY

RIGHT TO MAKE INFORMED REPRO-

DUCTIVE DECISIONS FREE FROM

UNWARRANTED GOVERNMENTAL

Il. THE REGULATIONS VIOLATE THE

FIRST AMENDMENT RIGHTS OF LOW

INCOME WOMEN TO RECEIVE INFOR-

MATION FROM HEALTH CARE PRO-

VIDERS PRACTICING AT TITLE X

CEIINICS ccc cccscvccccccccccsccccccccccces 14

Ill. THE REGULATIONS DEPRIVE WOMEN

OF EQUAL PROTECTION UNDER THE

LAW BECAUSE THEY DISCRIMINATE

ON THE BASIS OF GENDER! AND

UNDULY BURDEN A WOMAN’S FUNDA-

MENTAL RIGHTS...........cececeecesess 20

IV. THE TITLE X REGULATIONS AT ISSUE

HERE CANNOT SURVIVE STRICT SCRU-

TINY BECAUSE THE GOVERNMENT

LACKS A COMPELLING INTEREST AND

THE REGULATIONS ARE NOT NAR-

ROWLY TAILORED TO SERVE ANY

TABLE OF AUTHORITIES

Cases PAGE

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)... 26

Board of Education v. Pico, 457 U.S. 853 (1982)....15, 18

Bradwell v. Illinois, 16 Wall. 130 (1873).........+++. 22

Califano v. Goldfarb, 430 U.S. 199 (1977) ......+.+- 22

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

denied, 409 U.S. 1064 (1972)......sseeecceeeceees 19

Carey v. Population Services International, 431 U.S. :

678 (1977)... ccccccccccccncccercsceseccsessseees

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983) .......eeee eens passim

City of Richmond v. J.A. Croson Co., 109 S. Ct. 706

(1989). ccccccccccccccccccccccccccccsvcscscccees 25, 26

Craig v. Boren, 429 U.S. 190 (1976).......+-eeeeee 22, 23

Doe v. Bolton, 410 U.S. 179 (1973).....--ee eee eeeee 8

Eisenstadt vy. Baird, 405 U.S. 438 (1972) .......--++- 3

FCC v. League of Women Voters, 468 U.S. 364 (1984) 25

First National Bank of Boston v. Bellotti, 435 U.S.

765, reh’g denied, 438 U.S. 907 (1978)........++-- 15, 16

Frontiero v. Richardson, 411 U.S. 677 (1973)........ 22, 23

Geduldig v. Aiello, 417 U.S. 484 (1974).......+++++- 21

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 *

(1982)... ceccccccccccccccccvcccccccccsccseeceees

ety Rye

PAGE

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

Harris v. McRae, 448 U.S. 297 (1980)............. 3, 7, 28

Hodgson v. Minnesota, 58 U.S.L.W. 4957 (U.S.

NE Sk Mik wk Oh aesS due ee eabededcapace'e passim

Kirchberg v. Feenstra, 450 U.S. 455 (1981) .......... 22

Kleindienst v. Mandel, 408 U.S. 753 (1972).......... 14, 15

Lamont v. Postmaster General, 381 U.S. 301 (1957).. 15

Linmark Assoc. v. Willingboro, 431 U.S. 85 (1977).. 16

Loving v. Virginia, 388 U.S. 1 (1967)............... 23

Maher v. Roe, 432 U.S. 464 (1977) ......... cc cceees 7, 28

Massachusetts v. Secretary of Health and Human Ser-

vices, 899 F.2d 53 (Ist Cir. 1990) ................ passim

Metro Broadcasting, Inc. v. FCC, 58 U.S.L.W. 5053

Pe ED cae Chi ucewebsecdineccces ses 26

Meyer v. Nebraska, 262 U.S. 390 (1923) ............ 14, 23

Michael M. v. Sonoma County Superior Court, 450

Sica MONEE bb Ne wkaeae Vand Cee seclbeceadeces 4

Mississippi University for Women v. Hogan, 458 U.S.

718 (1982)..... erreeee ere eee eee eeeene ore ewe en eeee 22, 26

Moore v. City of East Cleveland, 431 U.S. 494 (1977) 23

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)..... 21

New York v. Sullivan, 889 F.2d 401 (2d Cir. 1989) .. 16

New York v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d

FEO Me es SE bedck ch c60EAdn Soaks caccdeadess 18

Perry v. Sindermann, 408 U.S. 593 (1972)........... 25

Personnel Administrator v. Feeney, 442 U.S. 256

CRUE 60.666 chad MeN Comeau Rebekonctdbsivesteces 24

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..... 23

Pinkus v. MacMahon, 129 N.J. 367, 29 A.2d 885,

(N.J. Sup. Ct. 1943). ...ccceeeeeeeeeecceeeneenees

Planned Parenthood of Missouri v. Danforth, 428 U.S.

$2 (1DTG) oo cccccccvcccccccscccnccccvcceccccccecs

Procunier v. Martinez, 416 U.S. 396 (1974).......... 15

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

1071 (Sth Cir. 1988)... ccccccccvccccccccsvccess 7

Richmond Newspapers Inc. v. Virginia, 448 U.S. 555

PE a nines voecnwedtns cb GeeeFSsPkavotncctcseve’ 15

Roe v. Wade, 410 U.S. 113 (1973) .........eee cece passim

Sherbert v. Verner, 374 U.S. 398 (1963)........++++. 25

Skinner v. Oklahoma, 316 U.S. 535 (1942).........- 25, 28

Stanley v. Georgia, 394 U.S. 557 (1969).........+4+: 15

Stanton v. Stanton, 421 U.S. 7 (1975).....-..+-ee0e 22

Thomas v. Collins, 323 U.S. 516 (1945).....+++0+0+: 15

Thornburgh v. American College of Obstetricians and .

Gynecologists, 476 U.S. 747 (1986) ........-eeeees passim

Virginia Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748 (1975) ......... 14, 20

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

DRED TISED 6 cee bekcdedeeccwsbeseescens cosueszess 7, 8

Weinberger v. Weisenfeld, 420 U.S. 636 (1975) ...... 23, 26

Whalen v. Roe, 429 U.S. 589 (1977) ...... cece eceeee 8

Whitney v. California, 274 U.S. 357 (1927).......... 16

Zablocki v. Redhail, 434 U.S. 374 (1978)............ 25

PAGE

Regulations

Se Mets Ne CR Wi bc vie cnc bdRcdNekeccscus 21

42 C.F.R. § 59.8 (1989) ...... ccc ccc cece cee c cece passim

Other Authorities

The Alan Guttmacher Institute, Abortion and Wom-

en's Health: A Turning Point for America? (1990) . 4, 12

The Alan Guttmacher Institute, Making Choices—

Evaluating the Health Risks and Benefits of Birth

Control Methods (1983). .........cccccccccccccccs 21

The Alan Guttmacher Institute, Organized Family

Planning Services in the United States 1981-1983

CP Asa pacidhink shdseusecnsioceevebaecke cece 5

American College of Obstetricians and Gynecologists,

Statement of Policy: Further Ethical Considerations

in Induced Abortion (Dec. 1977).............2+0+- y

American College of Obstetricians and Gynecologists,

Standards for Obstetric-Gynecologic Services (6th ed.

SRR Natbdws sume dks dawadcakbestabokceticdaes tes 9

American Medical Association, Current Opinions of

the Council on Ethical and Judicial Affairs of the

American Medical Association (1989).............. 19

AMA Council on Long Range Planning and Develop-

ment, The Future of General Internal Medicine, 262

J. Am. Med. A. 2119 (1989) ............cccecceee 17

AMA Council on Medical Education, Future Direc-

tions for Medical Education, 248 J. Am. Med. A.

See SE 6805s 06 Sab Re CNA iidbadk cicdeotnedeel ic 17

PAGE

G. Annas, The Rights of Patients (2d ed. 1989)...... 17

S. Apeton, Sexual Assault Among Adolescents (1983) 4

Carlson, Abortion’s Hardest Cases, Time, July 9, 1990

at OD bi bees eedbeedaeWerteedecesegeoseanes 6, 13

Chu, Buehler & Berkelman, Impact of Human

Immunodeficiency Virus Epidemic on Mortality in

Women of Reproductive Age, United States, 264 J.

Am. Med. A. 2714 (1987)........cceseeeeeeeeees

116 Cong. Rec. H37370 (daily ed. Nov. 16, 1970).... 26

Dallek, Health Care for America’s Poor: Separate and

Unequal, 20 Clearinghouse Rev. 361 (1986)........

D. Danforth, M. Hughey & A. Wagner, The Complete

Guide to Pregnancy (1983) .......+seeeceeeeeeeees

Danielson & McNally, Title X and Family Planning

Services for Men, 20 Fam. Plan. Persp. 234 (1988). 24

Estrich and Sullivan, Abortion Politics: Writing for an

Audience of One, 138 U. Pa. L. Rev. 119 (1989) ..21, 22

Federal Bureau of Investigation, Uniform Crime

Reports for the United States (1987) .........++++- 3

K. Fineberg, J. Peters, J. Willson & D. Kroll,

Obstetrics/Gynecology and the Law (1984)......... 21

D. Finklehor & K. Yllo, License to Rape: Sexual Abuse

Of Wives (1985) . 0... ccc ccc ce cece cece eeeeeeceeees 4

R. Gold, A. Kenney & S. Singh, Blessed Events and

the Bottom Line: Financing Maternity Care in the

United States (1987) 2... .ccccccccccccccceceeceess 4

Greydanus & Railsback, Abortion in Adolescence, |

Seminars in Adolescent Med. 213 (1985)...........

‘a

. p \ td ee tee ee | ok

—

OE RT Ie eee eae ee ae Vee ees oe

vii

PAGE

Hatlie, Professional Liability: The Case for Federal

Reform, 263 J. Am. Med. A. 586 (1990).......... 17

R. Hatcher, E. Guest, F. Stewart, J. Trussell, S.

Bowen & W. Cates, Contraceptive Technology (14th

a RhaGintteie dbitccveevvese cocee 3

Health Care Sourcebook, A Compendium of Federal

Laws, Regulations and Documents Relating to

Health Law (W. Miller ed. 1989) ................. 17

Henshaw, Forrest & Van Voort, Abortion Services in

the United States, 1984 and 1985, 19 Fam. Plan.

Henshaw & Silverman, The Characteristics and Prior

Contraceptive Use of U.S. Abortion Patients, 20

Fam. Plan. Persp. 158 (1988) ..............ee000- 3

Jones & Forrest, Contraceptive Failure Rates in the

United States, 21 Fam. Plan. Persp. 103 (1989) .... 3

Katz, _Physician-Patient Encounters “‘On a Darkling

Plain,”” 9 W. New Eng. L. Rev. 207 (1987) ....... 10

L.A. Times, July 17, 1990, at Al, col. 5............ 17

LeBolt, Grimes & Cates, Mortality from Abortion and

Childbirth: Are the Populations Comparable? 248 J.

Am. Med. A. 188 (1982).....ccccccceccccececen. $

Maternal-Fetal Medicine (R. Creasey & R. Resnik 24

I 13

Medical Complications During Pregnancy (G. Burrow

& T. Ferris 3d ed. 1988)....ccccccesceccececeee. 13

Minkoff, Care of Pregnant Women Infected with

Human Immunodeficiency Virus, 258 J. Am. Med.

Fis BE as hath bbb ee vekdecnicéccvccecdscece 6

Viii

PAGE

National Abortion Rights Action League, Hickman-

Maslin Research Poll for American Viewpoint (1987)

National Research Council, Risking the Future’ Ado-

lescent Sexuality, Pregnancy and Childbearing (C.

Bhawes C8. ISBT)... ccc cccccccccccccccccccccccscecs

N.Y. Times, Sept. 28, 1987, at BS, col. 1...........

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

N.Y. Times, June 28, 1990, at Al0, col. 5..........

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

Government Buy U,) Constitutional Rights? 41 Stan.

B, Bes GE GIIG9) concccccccdccecscavecescesvecs 5,

Nsiah-Jefferson, ‘‘Reproductive Laws, Women of

Color and Low Income Women,” in Reproductive

Laws for 1990s 24 (N. Taub & S. Cohea, eds.

M. Rudov & N. Santangelo, Health Status of Minori-

ties and Low-Income Groups (1979). ........0+00++

Tallon & Block, ‘‘Changing Patterns of Health Insur-

ance Coverage; Special Concerns for Women,”’ in

Women, Health and Poverty 119 (C. Perales & L.

Young €s. 1968)......cccccccccccccscccccccscees

C. Tietze & S. Henshaw, Induced Abortion: A World

Reevdew Gitta OB. IGGB. 20 cc cccccccsccccecccccceses

Tietze, Bongaarts & Schearer, Mortality Associated

with the Control of Fertility, 8 Fam. Plan. Persp. 6

SO Sknccsccbenccevecenccdessesaceness+4eneses

U.S. Dept. of Health and Human Services, Heaith:

Eheitad Santas IFES CIGTED 2c cccccccccscceccccccess

—

CO ee a et Ra ee a et Act

PAGE

U.S. Dept. of Health and Human Services, Program

Guidelines for Project Grants for Family Planni

Services § 9.4 (1981) actin

ina hie ee eek 12

Wilson, ““Women and Poverty: A Demographic Over-

view, in Women, Health and Poverty 26 (C.

Perales & L. Young eds. 1988)................... 6

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

Grant 17th ed. 1985) ......................... 13, 23

]

;

INTEREST OF AMICI CURIAE

This brief is filed on behalf of NOW Lega! Defense and

Education Fund and 117 organizations which share a com-

mon concern for the protection of women’s rights, and in

particular the fundamental right to reproductive autonomy,

necessary to fuifill the Constitution’s promises of liberty and

equality for all. These organizations, representing millions of

individual women and men from diverse backgrounds, have

joined together to urge this Court to grant the relief sought

by Petitioners and permanently enjoin the Title X regulations

at issue. They believe the regulations profoundly impede exer-

cise of the fundamental right to reproductive decisionmaking

essential to the health and the lives of the millions of low

income women who are served by federally funded family

planning clinics. (Further statements of interest of amici are

set forth at Appendix A.)

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

ters of consent have been filed separately with this Court.

SUMMARY OF ARGUMENT

The Title X regulations at issue prohibit abortion counsel-

ing and require referral for prenatal care only, and thus

impermissibly burden women’s constitutionally protected

right to reproductive decisionmaking. That unconstitutional

burden translates into concrete risks to the health and the

lives of poor women—a disproportionate number of whom

are young women and women of color—who are served by

Title X clinics.

Under the guise of encouraging childbirth, the regulations

prevent women seeking help at Title X clinics from receiving

complete and unbiased medical advice about reproductive

options. The ban on abortion information puts at risk the

health and the lives of pregnant women, particularly those

for whom complicating physical conditions make abortion a

critical medical option. The regulations thus affirmatively

interfere with a woman’s constitutionally protected decision,

informed by her physician, of whether or not to carry her

pregnancy to term. The regulations also impermissibly

infringe the basic first amendment right of the women served

by Title X clinics to receive accurate reproductive health

information from their health care providers. Finally, the reg-

ulations deprive women of equal protection under the law

because they discriminate on the basis of gender and do so in

a way that implicates a woman’s fundamental right to choose

abortion and to receive information essential to informed

reproductive health care.

The governmental purpose in enacting the regulations—to

encourage childbirth by curtailing access to information

about abortion and abortion services—and the regulatory

scheme devised to effect that purpose cannot survive strict

scrutiny. The scheme cannot even stand as a rational means

to achieve the government’s purpose, given that the regula-

tions both contravene the aim of Title X to promote public

health and mandate violations of accepted medical practice.

Amici respectfully urge this Court to reject, as it has in the

past, this blatant attempt to interfere with constitutionally

protected reproductive decisions.

ARGUMENT

I. THE REGULATIONS UNDULY BURDEN A WOM-

AN’S FUNDAMENTAL PRIVACY RIGHT TO MAKE

INFORMED REPRODUCTIVE DECISIONS FREE

FROM UNWARRANTED GOVERNMENTAL INTER-

FERENCE.

The regulations prevent the women served by Title X clin-

ics from freely and independently deciding whether or not to

carry a pregnancy to term, as is their right under Roe v.

Wade, 410 U.S. 113 (1973), and cases following Roe. By sup-

pressing all mention of abortion while simultaneously

compelling referral for prenatal care, the regulations imper-

missibly intrude into the physician-patient dialogue

concerning reproductive options.’ Through the funding mech-

1 The regulation’s ban on abortion counseling and referral affects not

only women who are already pregnant, but also women using Title X family

planning services for non-pregnancy related needs. See infra p. 20 & note 39.

ee ee ee ee

—— =

ee eee

;

anism, they create significant obstacles to the constituti

protected right of women seeking health care at Te = =

ics to decide, with the necessary information at their disposal

whether or not to carry pregnancies to term.

The Court has recognized that if the sphere of ‘‘liberty’’

guaranteed under the due process clauses of the fifth and

fourteenth amendments is to ‘‘extend[ ] to women as well as

to men,’” women must have the autonomy to decide whether

and when to bear children, Thornburgh v. American College

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

and to be free from unwarranted governmental intrusion into

matters so fundamentally affecting a person as the decision

whether to bear or beget a child,” Eisenstadt v. Baird. 405

U.S. 438, 453 (1972). See Hodgson vy. Minnesota, 58

U.S.L.W. 4957, 4961.(U.S. June 25, 1990) & 4968 (O’Con-

nor, J., concurring); Harris v. McRae, 448 U.S. 297, 312-318

(1980); Carey v. Population Services International 431 U.S

678, 685, 687 (1977); Roe v. Wade, 410 U.S. 113 152-53

(1973); Griswold v. Connecticut, 381 U.S. 479, 502-03 (1965)

(White, J., concurring). Absent the right to decide whether or

not to terminate a pregnancy, the freedom to mak i

. . . . ‘ 4

bearing decision would be hollow.” a

2 Because of advances in modern medicine. no bri i

drawn between the decision to abort and the decision Ae gilda 2

~y? reg em ng the intrauterine device operate after fertilization See

. Hatcher, E. Guest, F. Stewart, J. Trussell, S. Bowen & W.

ron Technology 252-53, 377 (14th rev. ed. 1988). hasten a

re) rth control is 100 percent effective. See Jones & Forrest, Contraceptive

Failure Rates in the United States, 21 Fam. Plan. Persp. 103 (1989). The fail-

= — on contraceptives used for a 1-year period are as follows: the Pill-

pace st condem-84.2%; the diaphragm-15.6%; the rhythm

~ 16. %; and spermicides-26.3%. Jd. at 109. A study of women who

had abortions in 1987 revealed that 51.3% had been using a contracepti

method during the month in which they became pregnant. Henshaw a Saver.

man, The Characteristics and Prior Contraceptive Use of U.S. Aborti. ‘

Patients, 20 Fam. Plan. Persp. 158, 167 (1988). a =

Furthermore, because of the high risks of sexual violence, no woman of

child-bearing capacity is safe from an unwanted pregnancy. See Federal

Recognizing that a woman needs medical advice to decide

whether or not to continue a pregnancy, the Court has care-

fully protected the physician’s role in the woman’s oe one

making process. See, e.g., City of Akron vy. — om

for Reproductive Health, Inc., 462 U.S. 416, 447 ( nee

Because her decision is ‘‘inherently, and primarily, a me ”

decision,”’ Roe v. Wade, 410 U.S. 113, 153 (1973), rl pe

important and often a stressful one,”’ Planned Parentho ~d

Missouri v. Danforth, 428 U.S. 52, 67 (1976), it is ‘‘desira

and imperative that [the decision] be made with full — -

edge of its nature and consequences, id. Only by provi ~

pregnant women with all the medical facts that bear upon t w

decision, can physicians assist women to make cg

reproductive choices about one of the most important deci-

in life.

"For al women, pregnancy entails ‘profound physical,

emotional and psychological consequences.’ Michael M. v.

Sonoma County Superior Court, 450 U.S. 464, 471 oe

(Rehnquist, J.). For many women, pregnancy, labor an

delivery pose significant medical risks, particularly when a:

sarean sections account for one out of four deliveries. See :

Danforth, M. Hughey & A. Wagner, The Complete Guide to

Pregnancy 228-31 (1983). The medical risks associated > go

carrying pregnancy to term should not be paper i

every ten women who experience pregnancy and chil :

six are treated for some medical complication, and three are

treated for major complications. See R. Gold, A. Kenney &

S. Singh, Blessed Events and the Bottom Line: Financing

Maternity Care in the United States 10 (1987). ral

In comparison, legal abortion is safer than childbirth. Less

than one percent of all abortion patients experience a _

complication associated with the procedure. See The n

Bureau of Investigation, Uniform Crime Reports for the United States pte e

15 (1987) (in 1987, one forcible rape every six minutes); N.Y. beac paage mo

28, 1987, at BS, col. 1 (113,000 cases of child sexual abuse report in os

S. Apeton, Sexual Assault Among Adolescents 130-34 (1983) (very hig cy

dence of date rape among adolescents); D. Finklehor & K. Yilo, ~ speed -

Rape: Sexual Abuse of Wives 6-8 (1985) (estimating 10-14% of all marri

women experience marital rape).

Guttmacher Institute, Abortion and Women’s Health: A

Turning Point for America? 32 (1990). At eight weeks of ges-

tation or earlier, the risk of death from abortion is about 20

times lower than that of childbirth; at no point during preg-

nancy is abortion more dangerous than childbirth. See

LeBolt, Grimes & Cates, Mortality from Abortion and Child-

birth: Are the Populations Comparable?, 248 3}. Am. Med.

A. 188, 191 (1982).

As the primary source of federal support for family plan-

ning and reproductive health services, funding over 3,900

clinics nationwide, Title X served 4.3 million low income

women in 1988, with a target population consisting of an

estimated 14.5 million women at risk of unintended preg-

nancy, including 5 million adolescents between the ages of 15

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

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

Rev. 401, 408 (1989) (collecting sources). Thirty percent of

these women are women of color, see The Alan Guttmacher

Institute, Organized Family Planning Services in the United

States 1981-1983 28, 30 (1984), and eighty percent have

incomes below 150 percent of the poverty line, see Declara-

tion of Dr. Stanley Henshaw, Deputy Director of Research,

The Alan Guttmacher Institute, q 18 (194JA).°

The right to make informed decisions concerning reproduc-

tive health care is particularly important for the low-income

women served by Title X. The communities in which they live

suffer from disproportionately high rates of teenage preg-

nancy and a myriad of diseases (high blood pressure, hyper-

tension, diabetes, cancer, sickle cell anemia and AIDS) that

increase the risks associated with pregnancy.‘ Pregnant teen-

3 Citations to the joint appendix that accompanies the Petitioners’

Briefs are made to the page number therein as “(___. JA).”” Citations to

the appendix that accompanied the Petitions for Writ of Certiorari are made

to the page number therein as ‘“(___ a).’” Citations to the joint appendix

filed in the Second Circuit are made to the page number therein as

~— A).”’

4 See generally M. Rudov & N. Santangelo, Health Status of Minori-

ties and Low-Income Groups (1979). The AIDS epidemic has particularly

severe consequences for these communities. A recent study predicts that by

)

en are twenty-four times more likely to die from

childbirth than from a first trimester abortion. Carlson,

Abortion’s Hardest Cases, Time, July 9, 1990, at 22, 25.

Black women, disproportionately represented in low-income

communities,’ are nearly three times more likely to die from

complications of pregnancy or childbirth than are white

women. U.S. Dep’t of Health and Human Services, Health:

ited States 1989, at 33 (1990).

a prohibiting any mention of abortion, see 42 “sare

§§ 59.8(a)(1)-(4) (1989), the Title X regulations deprive ow

income women of full health care counseling and information

critical to their reproductive decision-making and treatment.

Section 59.8 of the regulations forbids practitioners in Title X

clinics from informing their patients either of the availability

of abortion or where abortion-related information can be

obtained. 42 C.F.R. § 59.8(a)(1) (1989). Even when women

request information about abortion, they may be told only

that ‘‘the project does not consider abortion an appropriate

method of family planning and therefore does not counsel or

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

more, the regulations do not simply censor abortion-related

speech: they require that pregnant women be given a list of

health care providers ‘‘that promote the welfare of ‘mother

and unborn child.”’ 42 C.F.R. § 59.8(a)(2) (1989). This refer-

1991, AIDS will become one of the five leading causes of death among

women in the childbearing years nationwide. Chu, Buehler & Berkelman,

Impact of Human Immunodeficiency Virus Epidemic on eng

Women of Reproductive Age, United States, 264 J. Am. Med. A. 22 oe

The racial disparities uncovered by the study are dramatic: in 1988, +

killed nine times as many black women as white women. Id. at 226. ae .

already the leading killer of black women of childbearing years in New Yor

sey. Id. at 227. .

yar toner both accelerates the course of AIDS in a child-bearing ——

and poses a 30-50% risk that her newborn baby will be HIV-infect . e

Minkoff, Care of Pregnant Women Infected With Human Immuno efi-

ciency Virus, 258 J. Am. Med. A. 2714 (1987).

5 In 1984, 32.3% of Black women and 26.4% of Hispanic women

lived below the poverty level, as compared to 11.5% of white women.

Wilson, ‘‘Women and Poverty: A Demographic Overview,” in Women,

Health and Poverty 26 (C. Perales & L. Young eds. 1988).

ral list must include all available prenatal care providers that

do not perform abortions, and it cannot include any health

care providers that offer abortion as their ‘principal busi-

ness.’’ 42 C.F.R. § 59.8(a)(3) (1989).

While the government may implement ‘‘a value judgment

favoring childbirth over abortion . . . by the allocation of

public funds,’” Maher v. Roe, 432 U.S. 464, 474 (1977), it

cannot, absent a compelling justification, place ‘‘obstacles—

absolute or otherwise—in the pregnant woman’s path to an

abortion.’’ Jd. By altering medical counseling through with-

holding information concerning abortion and prescribing

information designed to cause women to Carry to term, the

regulations erect significant obstacles to women’s reproduc-

tive decisionmaking, hidden but nevertheless very real to the

women served by Title X. The regulations’ intrusion into the

physician-patient dialogue impermissibly crosses the line

between ‘‘state encouragement of an alternative activity con-

sonant with legislative policy’’ and ‘‘direct state interference

with a protected activity.’’ Maher, 432 U.S. at 475.

Unlike the selective subsidies of childbirth upheld in Maher

v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S.

297 (1980), and the selective allocation of public hospitals

and staffs upheld in Webster vy. Reproductive Health Ser-

vices, 109 S. Ct. 3040, 3052-53 (1989), the Title X regulations

seek to encourage childbirth by affirmatively impairing wom-

en’s reproductive choice. Maher and McRae involved refusals

to fund abortions,® not governmental schemes to interfere

with a woman’s decisionmaking process by withholding infor-

mation and providing misinformation. In Reproductive

Health Services v. Webster, 851 F.2d 1071, 1080 (8th Cir.

1988) (en banc), the Eighth Circuit distinguished Missouri’s

ban on “‘encouraging or counseling’’ abortion from the

restrictions in Maher and McRae, declaring that it could

6 In Maher, the Court observed that the statute at issue “imposed no

restriction on access to abortions that was not already there.’’ 432 U.S. at

474. Similarly, the Court noted in McRae that the funding restriction left an

indigent woman ‘“‘with at least the same range of choice in deciding whether

to obtain a[n] . . . abortion as she would have had if Congress had chosen

to subsidize no health care costs at all.’’ 448 U.S. at 317 (emphasis added).

‘perceive of few obstacles more burdensome to the right to

decide than a state-imposed blackout on the information nec-

essary to make a decision.’’’ The Title X regulations present

an a fortiorari case, for they not only impose a blackout, but

they also compel Title X health care providers to transmit

skewed information that will mislead Title X patients into

carrying pregnancies to term.

The Title X regulations are an even more serious inter-

ference in the physician-patient dialogue than were the

requirements struck down in City of Akron v. Akron Center

for Reproductive Health, Inc., 462 U.S. 416, 444 (1983), that

compelled health care providers to disseminate information

‘‘designed to influence the woman’s informed choice between

abortion or childbirth.’’® The Title X regulations obstruct the

decisionmaking process more aggressively than did the Penn-

sylvania statute struck down in Thornburgh v. American Col-

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

which required physicians to provide their pregnant patients

with a description of fetal development and a list of agencies

offering alternatives to abortion.”

7 The Court did not address the constitutionality of Missouri’s ban on

counseling in Webster v. Reproductive Health Services, 109 S. Ct. 3040

(1989). The issue was dismissed as moot because the State interpreted the

restriction as directed not at the conduct of any physician or health care pro-

vider, but only at those responsible for expending funds. Id. at 3053-3054.

8 In Akron, the Court held that by forcing physicians to furnish all

their pregnant patients with an ‘‘inflexible list of information,’’ the ordi-

nance “‘unreasonably . . . placed ‘obstacles in the path of the doctor upon

whom [a woman is] entitled to rely for advice in connection with her deci-

sion.’ Akron, 462 U.S. at 444-445 (quoting Whalen v. Roe, 429 U.S. 589,

604 n.33 (1977)). The Court reasoned that ‘‘full vindication of the woman’s

fundamental right [to reproductive choice] necessarily requires that her phy-

sician be given ‘the room he needs to make his best medical judgment.’ ’’ Jd.

at 427 (quoting Doe v. Bolton, 410 U.S. 179, 192 (1973)). That room includes

the physician’s discretion to provide her pregnant patient with information

relevant to her particular needs, id. at 443, when “‘both assisting the woman

in the decisionmaking process and implementing her decision should she

choose abortion,’’ id. at 427.

9 The Court described these requirements as ‘‘an outright attempt to

wedge Pennsylvania’s message discouraging abortion into the privacy of the

informed consent dialogue between the woman and her physician.’’ Thorn-

}

Contrary to professional standards that require

counseling and discussion of the full range os somo

which a woman is entitled when pregnancy is diagnosed, see

American College of Obstetricians and Gynecologists, State-

ment of Policy: Further Ethical Considerations in Induced

Abortion 2-3 (Dec. 1977),"° the regulations require Title X

health care providers to direct their counseling solely towards

promoting childbirth. Health-related abortion restrictions that

so “‘depart from accepted medical practice,”’ City of Akron

v. Akron Center for Reproductive Health, Inc., 462 U.S. at

431 & 454 (O’Connor, J., dissenting), as these regulations do

unduly burden a woman’s right to decide whether or not to

continue a pregnancy.

By censoring information on abortion and i

referral for prenatal care, section 59.8 of the ea sero

lead many women to believe wrongly that abortion is not an

available option. Some women, especially those who are

uneducated or immigrants from countries where the right to

burgh, 476 U.S. at 762. The Court acknowledged that even standing alone

the list of prenatal and neonatal care agenci

es . .

muster: agencies could not pass constitutional

Even the listing of agencies . . . presents serious pro i i

names of agencies that well may be out of step be oh ay a

particular woman and thus places the physician in an awkward posi-

tion and infringes upon his or her professional responsibilities. Forcing

the physician or counselor to present the materials and the list to the

woman makes him or her in effect an agent of the State in treating the

woman and places his or her imprimatur upon both the materials and

the list. All this is, or comes close to being, state medicine imposed

upon the woman, not the professional medical guidance she seeks, and

it officially structures—as it obviously was intended to do—the dia-

logue between the woman and her physician.

Id. at 762-63 (citation omitted).

10 See also American College of Obstetricians and i

dards for Obstetric-Gynecologic Services 57 (6th ed. meta doe at

an unwanted pregnancy, the physician should counsel the patient about her

options of continuing the pregnancy to term and keeping the infant, continu-

ing the pregnancy to term and offering the infant for legal adoption or

aborting the pregnancy.’’) For a fuller discussion of the ethical issues raised

see Briefs of Amici Curiae the American Public Health Association, ef al.

and the American College of Obstetricians and Gynecologists, ef al.

abortion is restricted, may be prevented from discovering that

abortion is legal in the United States.'' Out of fear of incur-

ring their doctor’s disapproval or exposing themselves to

prosecution, many women will be reluctant to break the

silence on abortion and ask about it. The regulations deprive

these women of the opportunity to decide whether or not to

continue a pregnancy, for they will not even realize they have

a choice to make.

Those women who know abortion is an option and ask

about its availability must be told only that ‘‘the project does

not consider abortion an appropriate method of family plan-

ning and therefore does not counsel or refer for abortion.’”’

42 C.F.R. § 59.8(b)(5) (1989). Many women will understand

this message to mean that they have no safe alternative to

carrying their pregnancy to term and that abortion is not

appropriate for them. Declaration of Dr. Irving Rust, Medi-

cal Director of the Bronx Center of Planned Parenthood,

New York City, 4 15 (254JA).’* If information on the health

of their ‘‘unborn child’’ is the only guidance women receive,

they may well feel compelled to carry to term, or to turn to

dangerous attempts to self-abort or even to suicide.'? Teenage

girls, who are often scared, ashamed and alone when faced

with pregnancy, are particularly susceptible to suggestion

from their physicians that abortion is not permissible or

available. Declaration of Toni Morgan, 44 7-8 (219-220JA).

Even the women who resist the government’s censorship

attempts, identify abortion as a safe and legal option, and

11 See generally C. Tietze & S. Henshaw, Induced Abortion: A World

Review (6th ed. 1986). In fact, ignorance regarding the availability of abor-

tion is pervasive throughout American society. See National Abortion Rights

Action League, Hickman-Maslin Research Poll for American Viewpoint 4

(1987) (36% of American adults believe that abortion is available during the

first three months of pregnancy only under ‘‘extreme circumstances’’ or is

**not allowed’’).

12 Even if women are unsure of the meaning of this message, few will

ask their doctors for fuller explanation because all patients are conditioned

to ‘follow doctors’ orders’”’ unquestioningly. See Katz, Physician-Patient

Encounters “‘On a Darkling Plain,’’ 9 W. New Eng. L. Rev. 207, 215 (1987).

13. Declaration of Dr. Irving Rust 44 11 (252JA), 14-16 (253-54JA).

choose to obtain abortions are harmed by the increased

health risks and costs caused by the delay the regulations

impose on their process of obtaining appropriate health care

See Massachusetts v. Secretary of Health & Human Services,

899 F.2d 53, 69-70 (1st Cir. 1990) (en banc). Under the regu-

lations, women who enter Title X facilities with false, but not

unreasonable, expectations of balanced counseling will be

referred only to prenatal clinics—even if they express their

desire to terminate their pregnancy. Though there may be

some abortion providers on the list of prenatal care providers

given them, women will not be able to identify the abortion

providers except by a series of telephone calls or hit or miss

Visits to several facilities. This is particularly onerous for low

income women who often lack access to a car, the fare for

other transportation or even a telephone.’ Combined with

scheduling difficulties, work and child care commitments

school and transportation problems, this circuitous path to

abortion may entail delays of days, weeks or even months

Such delays may well push women into the second trimester

of pregnancy, significantly increasing the health risks for

those women who choose abortions.'* For the thousands of

teenagers whose denial, fear, shame and uncertainty often

result in a late initial visit to a clinic,"* further delay resultin

from the regulations can be critical. ,

14 See Nsiah-Jefferson, ‘“‘Reproductive Laws, Women of Color and

Low-Income Women,” in Reproductive L

Cohen eds. 1988). aws for the 1990s 24 (N. Taub & S.

15 The Court recently noted that an abortion delay of 4

week or more ‘‘increased the medical risk associated with - netstat

dure to ‘a statistically significant degree.’ "’ Hodgson v. Minnesota, $8

U.S.L.W. 4957, 4963 (U.S. June 25, 1990) (accepting the finding of the Dis.

trict Court). With each passing week in the second trimester, the risks of

major complications from even a legal abortion increases by approximate!

30 percent and the mortality risk by $0 percent. Declaration of Dr. io

Morley 4 12, Presiden: of the American Coll ss

cologists, (227JA). ege of Obstetricians and Gyne-

16 See Hodgson v. Minnesota, $8 U.S.L.W. at 4970 (Marshall, J., con-

= r 3° and oe in part) (citing 1 National Research Council

ng the Future: Adolescent Sexuality; Pr

c. tom. ok le ty; Pregnancy and Childbearing 114

In addition to increasing health risks, delay makes abortion

more costly’” and difficult to obtain.’* This is especially true

for low income women living in rural areas where abort‘on

providers are scarce and women often have to travel to

another county or even another state to obtain an abortion.”

Because most of the women served by Title X do not have

access to alternative health care,” many will learn of afford-

17. The cost of an abortion increases as pregnancy advances. Clinics

charge an average of $231 for an abortion at 8 weeks, $400 at 16 weeks and

$700 at 20 weeks. The Alan Guttmacher Institute, Abortion and Women’s

Health: A Turning Point for America? 26 (1990). The Court invalidated the

second trimester hospitalization requirement in Akron because it imposed ‘‘a

heavy, and unnecessary, burden,’’ more than doubling the cost of ‘‘women’s

access to a relatively inexpensive, otherwise accessible, and safe abortion pro-

cedure.’’ 462 U.S. at 438.

18 Only 17% of all abortion providers perform abortions after the 16th

week of pregnancy. Henshaw, Forrest, & Van Voort, Abortion Services in

the United States, 1984 and 1985, 19 Fam. Plan. Persp. 63, 69 (1987).

19 In 1985, 82% of all U.S. counties lacked an abortion provider, yet

these counties were home to 30% of all women of childbearing years. See

Henshaw, Forrest, & Van Voort, supra n.18, at 65. The difficulty in locating

an abortion provider is increasing as fewer doctors are willing to perform

abortions for fear of harassment. N.Y. Times, Jan. 8, 1990, at Al, col. 1.

South Dakota and North Dakota now only have one abortion provider each

and in Wyoming, more than 50% of women go out of state to obtain an

abortion. N.Y. Times, June 28, 1990, at A10, col. 5.

20 Even HHS has acknowledged that ‘‘[fJor many clients, family plan-

ning clinics are their only continuing source of health information and medi-

cal care.” U. S. Dep’t of Health and Human Services, Program Guidelines

for Project Grants for Family Planning Services § 9.4 (1981) (emphasis

added). Few women served by Title X have any health insurance which

would enable them to afford private care. Of all women aged 18-24, almost

30% have no insurance coverage. Tallon & Block, ‘‘Changing Patterns of

Health Insurance Coverage; Special Concerns for Women,’’ in Women,

Health and Poverty 119, 122 (C. Perales & L. Young eds. 1988). Of all

women aged 15-44 living below the poverty level, 36% are uninsured. Id. The

rates are worse for women of color: 21.8% of Blacks and 29.1% of Hispan-

ics are uninsured, compared with 14% of whites. Nsiah-Jefferson, ‘‘Repro-

ductive Laws, Women of Color, and Low-Income Women,”’ in Reproductive

Laws for the 1990s 17, 27 n.46 (N. Taub & S. Cohen eds. 1988). Moreover,

‘“‘uninsured minorities obtain less physician care and less hospital care, and

travel further and wait longer for care, than white uninsured.’’ Dallek,

Health Care for America’s Poor: Separate and Unequal, 20 Clearinghouse

Rev. 361, 370 (1986).

~ o5 20s ees

able abortion clinics only through word of mouth. In their

desperate and frustrated quest to end an unwanted preg-

nancy, some women will find and turn to illegal abortion-

ists.*’ For these women, delay may spell death.”

The regulations will have perhaps their cruelest eficct on

those low income women who have serious complicating con-

ditions, such as hypertension, eclampsia, diabetes, congenital]

heart disease, cancer, sickle-cell anemia, kidney disease and

certain respiratory, urinary and neuromuscular disorders

Continuation of pregnancy for women suffering from these

diseases carries grave risks for the health of both the mother

and the fetus.”” While the regulations at issue will permit pro-

fessionals in Title X clinics to disclose the existence of com-

plicating conditions to their patients, they will prevent

counseling of abortion as an alternative to Carrying a preg-

nancy to term.“ As a result, women with serious complicat-

21 = Recently, Becky Bell, an Indiana hi i

2 . ‘ gh school student, died of a -

sive infection after she sought an illegal abortion to avoid Geamataden'| a

parents by telling them she was pregnant ent

Cases, Time, July 9, 1990, at 22. Pregnant. Carlson, Abortion’s Hardest

m. a Hodgson v. Minnesota, 58 U.S.L.W. 4957, 4970 (U.S. June 25

~ A. arshall, J., concurring in part and dissenting in part) (citing

reydanus & Railsback, Abortion in Adolescence, 1 Seminars in Adolescent

Med. 213, 214 (1985) (mortality rate 100 ti '

than legal one)). y 00 times greater from illegal abortion

23. For example, diabetes poses serious risks duri

Pregnancy-induced diabetes occurs in approximately one > Esta

pregnancies. Medical Complications During Pregnancy 41 (G. Burrow &

T. Ferris 3d ed. 1988). In addition, approximately 1.5 million women of

childbearing age are known to have diabetes. Maternal-Fetal Medicine 925

(R. Creasey & R. Resnik 2d ed. 1989). A pregnant woman with diabetes is

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

aaa infections ofa greater severity, injure her birth canal during vaginal

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

Obstetrics 600 (J. Pritchard, P. MacDonald & N. Grant 17th ed 1985) See

Brief of Amici Curiae the American College of Obstetricians and Gynecolo-

gists, ef al. for a full discussion of the health risk

with complicating medical conditions. # of pregnancy to women

24 See Declaration of Dr. Geor i

rat b ge Morley, President of the American

ory” of Obstetricians and Gynecologists { 17 (228-29JA); Declaration of

rof. Howard Minkoff, Professor of Obstetrics and Gynecology, State of

ing conditions will not learn that their pregnancies pose

substantial health risks that may require an abortion to pre-

serve their health or save their life. In addition, the regula-

tions’ mandated referral to prenatal care will reinforce the

false impression that the pregnancy does not actually threaten

their health.

As a result of the Title X regulations’ enforced misinfor-

mation, low income women who have restricted access to

affordable, comprehensive reproductive health care and coun-

seling will be impermissibly coerced to make uninformed, and

often dangerous, reproductive decisions. For this reason, the

Title X regulations do more than encourage childbirth over

abortion: they actively interfere with a woman’s ability to

decide whether to carry a pregnancy to term.

Il. THE REGULATIONS VIOLATE THE FIRST AMEND-

MENT RIGHTS OF LOW INCOME WOMEN TO

RECEIVE INFORMATION FROM HEALTH CARE

PROVIDERS PRACTICING AT TITLE X CLINICS.

The regulations hold the first amendment rights of women

and their health care providers hostage to a funding scheme

requiring the dissemination of inaccurate and distorted infor-

mation. Through these funding restrictions, the government

has impaired the first amendment right of women to receive

information about their reproductive health.

It is now well established that the first amendment protects

the listener’s right to receive information. Virginia Board of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 756-57 (1975); Kleindienst v. Mandel, 408 U.S.

753, 762-63 (1972); Griswold v. Connecticut, 381 U.S. 479,

482 (1965). As early as its decision in Meyer v. Nebraska, 262

U.S. 390 (1923), the Court clarified that, in addition to pro-

tecting the freedom to speak, the Constitution safeguards

‘“‘opportunities . . . to acquire knowledge.’’ Jd. at 482. In

keeping with this principle, the Court has struck down a wide

New York Health Science Center 48 (648A); Declaration of Dr. Allan

Rosenfield, Professor of Obstetrics-Gynecology and Public Health, Colum-

bia University School of Public Health 4 22 (83a).

variety of government restrictions that offended **(f)i

amendment right to receive information and hoe paren

dienst v. Mandel, 408 U.S. 753, 762 (1972) (quoting Stanley

v. Georgia, 394 U.S. 557, 564 (1969)). See, e.g., Globe News-

paper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Procunier

v. Martinez, 416 U.S. 396, 408-09 (1974); Lamont v. Post-

master General, 381 U.S. 301, 306-07 (1957); Thomas ¥. Col-

lins, 323 U.S. 516, 534 (1945).”* The reciprocal nature of the

right to receive information derives from the fact that it “‘is a

necessary ‘Predicate to the recipient’s meaningful exercise of

his own right of speech, press and political freedom.’’ Board

of Education v. Pico, 457 U.S. 853, 867 (1982) (plurality

opinion) (emphasis in original).”

In this instance, the right to receive information is a neces-

sary predicate to the constitutionally protected right to repro-

ductive decisionmaking. As the Court declared in Griswold

the very first case recognizing the protected nature of the

relationship between a patient seeking family planning infor-

mation and her physician, ‘‘[t]he right of freedom of speech

and press includes not only the right to utter or print, but the

. . « Fight to receive . . . [information].”’ 381 U.S. at 482.7’

25 Im these cases, the Court has held unconstituti

attempts to stem the flow of information in public a ee

prisons and the mails. The regulations’ efforts to suppress vital medical com-

munications in Title X clinics are surely more reprehensible given that this

blackout’’ not only curtails the sharing of ideas and information critical to

our ity but i i i

a y but also directly undermines the health and lives of millions of

26 Justice Brennan stated that the listener’s right to receive i i

warrants first amendment protection because the, sete oe

accomplish nothing if otherwise willing addressees are not free to receive and

consider them. It would be a barren marketplace of ideas that had onl

sellers and no buyers.” Lamont, 381 U.S. at 308 (Brennan, J., poner

27 Justice White has written that ‘‘[t}he self-expression of the commu-

nicator is not the only value encompassed by the First Amendment. One of

its functions, often referred to as the right to hear or receive information is

to protect the interchange of ideas. Any communication of ideas for

thers the purposes of the first amendment.’’ First National Bank of Boston

v. Bellotti, 435 U.S. 765, 806, reh’g denied, 4

dissenting). 8 denied, 438 U.S. 907 (1978) (White, J.,

Despite the fact that the first amendment ‘‘prohibit(s) [the]

government from limiting the stock of information from

which members of the public may draw,’ First National

Bank of Boston v. Bellotti, 435 U.S. 765, 783, reh’g denied,

438 U.S. 907 (1978),% the regulations withdraw abortion

counseling and referrals in the context of low income health

care from the stock of information that millions of women

can receive and cast prenatal care and childbirth as the only

option.” Therefore, the Second Circuit’s conclusion that the

regulations were not viewpoint-based, because they limited

both ‘‘pro and con’’ advocacy about abortion, New York v.

Sullivan, 889 F.2d 401, 414 (2d Cir. 1989), ignored the regu-

lations’ obvious intent actively to interfere with a woman’s

decision whether or not to carry her pregnancy to term. As

the First Circuit correctly observed,

It is naive to assert that not talking about abortion to a

pregnant woman when discussing her options is value

neutral. . . . By discussing only what is best for the

unborn child, the counselor has already made the wom-

an’s choice. The Government, in restricting the coun-

selor’s options to that choice, enforces its choice.

Massachusetts v. Secretary of Health and Human Services,

899 F.2d 53, 72 (Ist Cir. 1990) (en banc).” By prohibiting a

woman from receiving abortion-related information, the reg-

ulations violate the Court’s admonition, in another first

amendment context, that “‘[iJf there be time to expose

through discussion the falsehood and fallacies . . . the rem-

edy to be applied is more speech, not enforced silence.’’ Lin-

mark Assoc. v. Willingboro, 431 U.S. 85, 97 (1977) (quoting

Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis,

J., concurring)).

28 See also Griswold, 381 U.S. at 482 (the government **may not, con-

sistently with the spirit of the First Amendment, contract the spectrum of

available knowledge’’).

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

Buy Up Constitutional Rights? 41 Stan. L. Rev. 401, 402 (1989).

30 Fora fuller discussion of the regulations’ unconstitutional discrimi-

nation on the basis of viewpoint in a public forum, see Brief of Amici Curiae

the Commonwealth of Massachusetts, ef al.

Protecting the dissemination of full and accur: i

information from governmental interference Seni aie

information is critical and is already of limited supply, espe-

cially to low income women.*' The pervasive nature of gov-

ernment regulation of medicine, designed to protect the

public through ensuring the quality of medical counseling

demonstrates the crucial importance of complete and accurate

medical information to our society.” All states require that a

license be obtained before a doctor can practice medicine

and licensing is contingent upon completion of extensive edu-

cation and training.” In addition, many doctors choose to

develop specializations which restrict the availability of spe-

cific medical information even further, to a limited few in a

given field.* While such efforts are intended to improve the

31 Numerous studies and reports have i i i ion i

access to health care services oy wee et ggg o.oo

July 17, 1990, at Al, col. 5 (noting that the United States infant mortality

—— prime indicator of the nation’s health care access—exceeds 10 no

jee " placing the United States no better than 20th out of 22 industrial

ons in a United Nations survey); Hatlie, Professional Liability: The Cas

Sor Federal Reform, 263 J. Am. Med. A. 586 (1990) (reporting bomen

diminution in the availability of health care in the United States and notin

that “‘access problems are most pronounced in the maternal health field’’) ‘

an : Public health and the practice of medicine are highly regulated by

t ¢ state and federal government, including the licensing of health care

providers, facility construction, antitrust matters, environmental protection

and the development and distribution of drugs. See generally Health Care

Sourcebook, A Compendium of Federal Laws, Regulations and Docum

Relating to Health Law, vols. 1 & 2 (W. Miller ed. 1989) ?2

33. G. Annas, The Rights of Patients 25

; nnas, 2 (2d ed. 1989). Typical!

a - required to complete four years of undergraduate tien a

y of medical school and four years of clinical education as a resident.

34 If a doctor chooses to specialize in a particular area of medicine tw

or more years of additional training are necessary, and certification b . :

cialty board is required by most institutions. AMA Council on Medical Edu.

cation, Future Directions for Medical Education, 248 }. Am. Med. A 3225

ty: See also AMA Council on Long Range Planning and Development

e Future of General Internal Medicine, 262 J. Am. Med. A. 2119 (1989)

nage it ceeds on specialists declining rapidly as more doctors

uier aus ta ace over becoming a general internist, because of

quality of medical counseling, they also impose costs that

necessarily restrict its availability.”

Over the past twenty years, the federal government has

encouraged low income women and the health facilities in

their communities to rely on Title X to support affordable,

quality reproductive health care, including abortion counsel-

ing and referral. To a large extent, Title X funding has dis-

placed state and local government aid and private funding.”

Thus, by preventing Title X health care workers from provid-

ing their patients with comprehensive and accurate health

information about the option of abortion—despite its impor-

tance and limited availability—the government effectively

places it beyond the reach of most, if not all, Title X

patients. For Title X patients, medical advice about the

“denied idea’ of the option of abortion is not ‘‘readily avail-

able from the same source in other accessible locations,”’

Board of Education v. Pico, 457 U.S. 853, 913 (1982)

(Rehnquist, J., dissenting), and will be effectively foreclosed

by the federal government.

Enhanced and improved medical information through gov-

ernment regulation is not the only factor defining the health

care culture in the United States. The governing principles of

medical ethics nationwide require that physicians communi-

cate to the patient full information about her medical condi-

tion and treatment alternatives to ensure that the patient

35 The government’s control over the practice of medicine also extends

to the criminalization of the unauthorized practice of medicine. See, €.8.,

Pinkus v. MacMahon, 129 N.J. 367, 29 A.2d 885 (N.J. Sup. Ct. 1943)

(owner of a food store engaged in unauthorized practice of medicine when he

diagnosed shoppers’ illnesses, prescribed a healthful diet and sold certain

vitamins which he claimed had a curative effect); New York v. Varas, 110

A.D.2d 646, 487 N.Y.S.2d $77 (2d Dept. 1985) (engaged in unauthorized

practice of medicine where the defendant never obtained a license to practice

and conducted medical examinations, wrote prescriptions and provided diag-

noses).

36 Approximately fifty percent of Title X projects’ funding comes from

federal sources, with the remainder generated by Medicaid and sliding scale

fee payments. See Massachusetts v. Secretary of Health and Human Services,

899 F.2d 53, 55-56 (Ist Cir. 1990) (en banc).

participates meaningfully in her treatment decisions.” This is

ne the view that such an approach results in the

: medical decisions.

t is unreasonable, in the context of this medical cultu

expect a woman who uses a Title X clinic to nets

forfeiture of full health care counseling and her own

informed decisionmaking when she walks through the Title X

clinic doors. Indeed, one of the many apparent dangers of

the regulations is that women entering Title X clinics are not

warned that they are about to receive distorted, misleadin

information unrelated to their individual health needs. st

over, even if formal warning notices were somehow provided

to Title X patients, it would be unreasonable to expect that a

Title X patient, or any patient, would meaningfully alter her

pipes bal the physician-patient relationship to accommo-

pr laimer stating that the clinic cannot mention

The dangers of the government’s censorshi

become readily apparent when one er ee

where the government enacts a regulation prohibiting oncolo-

37 = See, e.g., American Medical Associati

» C8. a ssociation, Current Opinio

Council on Ethical and Judicial Affairs of the American Medical at oma

{ 8.07, at 31-32 (1989); Canterbu

; ry v. Spence, 464 F.

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

r aM... element of trust and full reliance is crucial within the context of

je — mm ne-eceaagpe al a average patient has little or no under-

, and ordinarily has only [her] physici

[she] can look for enlightenment with whi > omega

hich to reach an intelligent decision.”’

Sy ag ~~ stagione = 780, cert. denied, 409 US. 1064 97)

¥ of A . ent relies on her doctor for the

lete and unbiased information she need i sy enpraare

$ to make decisions about h

See Affidavit of Dr. Jay Katz, Prof ~ och

rar Fyn dy . essor of Law and Psychoanalysis, Yale

The doctor-patient relationship i

; p is based on trust . «—. it is recognized

7 aw : fiduciary relationship. Beca use patients must be able z rely

physicians to act in good faith and in their best interest, princi-

ples of law and ethics require them to do so.

be — thus has an obligation to be truthful, to respect the

— A of ead ana be disclose to the patient all pertinent facts

‘ ent’s condition and i i i

pce ated meta treatment Options, including the

gists in federally funded hospitals from counseling cancer

patients about the treatment option of chemotherapy, while

mandating referrals to facilities which primarily practice

holistic medicine. Patients suffering from cancer would either

be left unaware of the existence of chemotherapy, or be given

the misleading message that chemotherapy was not a medi-

cally acceptable treatment option for many forms of cancer—

in either case they would be unable to make a fully informed

treatment decision.

Thus, the government’s censorship of abortion information

infringes the most basic first amendment rights of patients of

Title X facilities and ignores the Court’s admonition that

‘people will perceive their own best interests only if they are

well informed . . . the best means to that end is to open the

channels of communication rather than to close them.”’ Vir-

ginia Board of Pharmacy v. Virginia Consumer Council,

Inc., 425 U.S. 748, 770 (1975).

Ill. THE REGULATIONS DEPRIVE WOMEN OF EQUAL

PROTECTION UNDER THE LAW BECAUSE THEY

DISCRIMINATE ON THE BASIS OF GENDER AND

UNDULY BURDEN A WOMAN’S FUNDAMENTAL

RIGHTS.

The regulations contravene the fourteenth amendment’s

prohibition on discrimination because they exclusively harm

women. As a result of the regulations, women are denied

important medical information necessary to make an

informed decision about contraception or, if pregnant, about

whether to continue a pregnancy. For example, a woman suf-

fering from severe hypertension should be advised by her

Title X physician both that the use of oral contraceptives is

contraindicated and that pregnancy may threaten her life. In

these circumstances, the regulations prevent full disclosure of

crucial information to a woman who for health reasons,

should consider alternative forms of contraception. See 42

C.F.R. § 59.8(a)(4). The Title X physician woulc be pre-

cluded from fully informing her patient that barrier methods

of contraception, with earl i

ni, y abortion as a backup if the bar-

es method fails, are the safest type of contraception.”

omen, pregnant and non-pregnant, are the onl

. . . ™ ,

—_ burdened by the Title X regulations.” enn this

nen burden curtails women’s fundamental constitu-

onal rights: a woman’s fundamental privacy right to termi-

nate a pregnancy and i i

per nae cy her first amendment right to receive

Fes Court has held that measures classifying on the basis

of gender are unconstitutional unless the party supporting the

measure can ‘‘carry the burden of showing an ‘exceedingly

39 See Tietze, Bongaarts & Schear j

ize, er, Mortality Associated wit

main y* Fertility, 8 Fam. Plan. Persp. 6 (1976); The Alan + aden

poe » Making Choices—Evaluating the Health Risks and Benefits of

aaa ontrol Methods (1983). The Food and Drug Administration requires

nufacturers of intrauterine devices (‘‘1.U.D.’s’’) to inform physicians that

pe woman becomes pregnant with an I.U.D. in place, and removal is diffi-

pose por of the tnee should be considered and offered the

on...” 21 C.F.R. § 310.502(b\(1) (1989). Simil

poe pes Nepean pregnant while using oral eames san a

of potential risks to the fetus: the advisabilit inui

pregnancy in light of these risks should be discussed.”’ K. hoes oe :

J. Willson & D. Kroll, Obstetrics/Gynecology and the Law 311 (1984) P

40 Because this case involves placing affirmative burdens

‘ ecal on all wom-

me ae rights, Geduldig v. Aiello, 417 U.S. 484 (1974), is not pnd

pai lu Be gee the constitutionality of a state disability

—_ progr t excluded from coverage certain disabilities resulting

pregnancy because the group discriminated against included onl

nant women and not all women. aed

Re. psalm ar 2 ov distinguishable from the regula-

i extend to women a benefit

not receive. The Court has established a distinction between meinen -

fing] to extend to women a benefit that men cannot and do not receive,’’ and

Phe ee on women a substantial burden that men need not suffer

ne ville Gas Co. v. Saity, 434 U.S. 136, 142 (1977) (deeming exclusion of

: = a nt sex discrimination under Title VII). Thus, even where a

ret. Pa a irmative burdens on pregnant women alone, Geduldig has no

, also Estrich and Sullivan, Abortion Politics: Writing for an Audi

ence of One, 138 U. Penn. L. Rev. 119, 124 n.10 (1989). ga

41 Since the regulations discrimina i

~. ! te against women in a wa

infringes upon their fundamental rights, the regulations violate none

protection clause and must be subj ,

and note 49. ubjected to strict scrutiny. See infra at p. 25

persuasive justification’ for the classification.’’ Mississippi

University for Women v. Hogan, 458 U.S. 718, 724 (1982)

(quoting Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)).

See also Craig v. Boren, 429 U.S. 190, 197-199 (1976). Classi-

fications based on gender have long been subjected to search-

ing analysis because of the substantial burdens suffered by

women when gender stereotypes are imposed on them. See

Mississippi University for Women, 458 U.S. at 726; Califano

v. Goldfarb, 430 U.S. 199, 211 (1977) (plurality opinion);

Stanton v. Stanton, 421 U.S. 7, 14 (1975); Frontiero v.

Richardson, 411 U.S. 677, 684 (1973) (plurality opinion). The

Title X regulations impair a woman’s constitutionally guaran-

teed liberty and autonomy by the pernicious strategy of keep-

ing all necessary information from her. This strategy of

misinformation, justified by the goal of ‘‘promoting child-

birth,” perpetuates the outmoded and dangerous notion

that a woman’s proper function is reproduction.” The Court

has consistently struck down legislation that perpetuates

‘‘fixed notions concerning the roles and abilities of males and

females,”’ Mississippi University for Women, 458 U.S. at

726, even when their impact has been far less onerous than

the effects of these regulations.“

42 _—siIf the regulations are allowed to stand, a day may come when the

government decides to impose burdens on men as well in the interest of ‘‘pro-

moting childbirth.’’ For example, the government may decide to mislead

men, or withhold information altogether, about contraception so that a sexu-

ally active man might father more children.

43 Women have long been perceived as persons whose ‘‘paramount des-

tiny and mission . . . [is] to fulfill the noble and benign office of wife and

mother.’’ Bradwell v. Illinois, 16 Wall. 130, 142 (1873) (Bradwell, J., concur-

ring). People who would restrict women’s access to abortion echo the views

of Justice Bradley and believe that the only appropriate roles for women are

those of mother and housewife. See Estrich & Sullivan, supra note 40, at 152-

53.

44 The Court has struck down: sex-based distinctions determining

eligibility for survivors benefits under the Social Security Act, Califano v.

Goldfarb, 430 U.S. 199 (1977); sex-based admission requirements for enroll-

ments in nursing school, Mississippi University for Women v. Hogan, 458

U.S. 718 (1982); sex-based regulations determining quarters and medical

Not only do the regulations impermissib

stereotypes about a woman’s proper “" in slg te

deprive women of equal treatment with respect to the exercise

of their fundamental right to privacy. All persons possess a

right to privacy protecting certain personal decisions regard-

ing marriage and family life from unwarranted governmental

interference.“ For a woman, this right includes the right to

decide whether or not to terminate a pregnancy, with the

chance to determine what is best for her given her physical,“

emotional, economic, educational and family circumstances

In fact, the Court has recognized a woman’s right to choose

an abortion by striking down a regulation that would have

required spousal consent because ‘‘it is the woman who

physically bears the child and who is the more directly and

immediately affected by the pregnancy. . . .’’ Planned Par-

enthood of Missouri v. Danforth, 428 U.S. 52, 71 (1976).

allowances, Frontiero v. Richardson, 411 U S

» Fre ov. " -S. 677 (1973); sex-b -

— worry different drinking ages for men and aaank a :

oren, -S. 190 (1976); and sex-based regulations determinis '

ermining govern-

ee gr Wend v. Weisenfeld, 420 U.S. 636 (1975). None a al

actually interfered with a woman’s ituti i

Pee sys Aref constitutional rights much less

. 45 The freedom of personal choice implicit i i

tional liberty places beyond the intrusive a rtp enon ed an aes,

eo rt an Loving v. Virginia, 388 U.S. 1 (1967); the decision of when

aa a to bear children, see Griswold v. Connecticut, 381 U.S. 479

); a decisions regarding childrearing and education, see Pierce y

Society of Sisters, 268 U.S. $10 (1925); Meyer vy. Nebraska, 262 U.S 390

(1923). The freedom to choose the structure of one’s family is “deeply rooted

in this Nation’s history and tradition.” M.

U.S. 494, $03 (1977). oore v. City of East Cleveland, 431

46 Over the nine months of pregnancy, a woman’s uterus incr

. . . . . . we 500

7 = _ in size, displacing other bodily organs including the heart,

— ix a gastrointestinal tract; her resting pulse rate quickens by ten to

ifteen beats per minute and her heart may increase slightly in size; and her

body weight increases by an average of twenty-five pounds. Even . health

pregnant woman may experience nausea, vomiting, more frequent aa,

back pain, fatigue, insomnia, labored breathing and water retention. See

Williams Obstetri i

am. etrics 540-42 (J. Pritchard, P. MacDonald & N. Grant 17th ed.

No regulation in the Title X context infringes on men’s pri-

vacy rights in a way that is comparable to the regulations’

ban on the provision of any information about abortion to

women.” Similarly, men face no obstacles to their first

amendment right to receive medical information critical to

decisions regarding their bodies or health. The regulations

create two categories of doctor-patient relationships, one

which presumptively allows men to receive full medical infor-

mation and the other which deprives only women from

obtaining complete and accurate information about their

health.“ This type of governmental discrimination clearly vio-

lates the equal protection clause.

IV. THE TITLE X REGULATIONS AT ISSUE HERE

CANNOT SURVIVE STRICT SCRUTINY BECAUSE

THE GOVERNMENT LACKS A COMPELLING

INTEREST AND THE REGULATIONS ARE

NOT NARROWLY TAILORED TO SERVE ANY

INTEREST.

The Title X regulations directly interfere with fundamental

privacy and first amendment rights of women. Moreover,

because the regulations exclusively harm women by burdening

their fundamental rights, they also deprive women of equal

protection under the law. The Title X regulations cannot sur-

vive strict scrutiny because the government can assert no

‘compelling interest’’ to justify the burdens placed on wom-

47 Recipients of Title X funds provide family planning services to both

men and women. Services for men include sterilization, sexually transmitted

disease screening and treatment, condom distribution and general informa-

tion. See Danielson & McNally, Title X and Family Planning Services for

Men, 20 Fam. Plan. Persp. 234 (1988).

48 This is not a case of disproportionate impact but of exclusive impact

because women are the only ones who are affected by the Title X regulations.

In Personnel Administrator v. Feeney, 442 U.S. 256 (1979), by contrast, the

veterans’ preference upheld by the Court disadvantaged a class comprised of

both men and women although the classification disproportionately disad-

vantaged women. The class affected by the regulations at issue is defined by

a biological correlate of gender unlike Feeney where the class granted vet-

erans’ benefits also consisted of women.

en’s privacy and first am i

their denial of equal -nscamrvag eee

In order to safeguard the individual against the invasive

power of government, the Court turns its most **searching

judicial inquiry’’ to governmental regulation that intrudes on

the fundamental rights of its citizens. City of Richmond v

J.A. Croson Co., 109 S. Ct. 706, 721 (1989). Thus, the Cour

has consistently applied strict scrutiny whenever a woman’s

privacy right to choose abortion is encumbered by substantial

burdens. See Hodgson v. Minnesota, 58 U.S.L.W. 4957 4969

(U.S. June 25, 1990) (Marshall, J., concurring); Thornburgh

v. American College of Obstetricians and Gynecologists, 476

U.S. 747 (1986); City of Akron v. Akron Center for Repro-

ductive Health Inc., 462 U.S. 416 (1983); Roe v. Wade, 410

U.S. 113 (1973). The Court has also consistently applied

Strict scrutiny whenever the government intrudes on the first

amendment right to receive information. Griswold v. Con-

necticut, 381 U.S. at 482.% In addition, strict scrutiny ap lies

whenever legislation places burdens on a fundamental right in

7 on of the equal protection clause. Zablocki v. Redhail,

onan - 374 (1978); Skinner v. Oklahoma, 316 U.S. $35

The central purpose of this ‘‘searching judicial inquiry.”’

Croson, 109 S. Ct. at 721, into ct am on yea A

infringe upon constitutionally protected rights and groups is

to ensure that such actions serve a stated goal or interest of

sufficient importance to justify infringement and that the

means chosen to effect the goal are closely tailored to serve

) the state interest with minimum intrusion upon the indi-

“¢ - niga rights. The regulations at issue here fail in

First, the overriding governmental pu i

promote public health through the tapes ee oo en hg

49 Similarly the Court applies strict scrutin i

. a he Court 4 y to other violations of f

prety eng ig yy on the basis of viewpoint, FCC vy gee

olers, S. 364, 383-84 (1984), and conditioni

ing on the relinquishment of first amendment rights to Sceieeaen i

v. Sindermann, 408 U.S. .

405 (1963). 593, $97 (1972); Sherbert v. Verner, 374 U.S. 398,

ning services for low-income clients”—a compelling interest.

The regulations at issue here also serve the ancillary purpose

of encouraging childbirth over abortion. The government

seeks to achieve this ancillary goal, however, not simply by

providing incentives to childbirth but rather by perpetuating

ignorance and denying women information about abortion as

a safe, legal alternative to childbirth. In effect, the regula-

tions’ purported purpose of promoting childbirth is a pretext

for the actual purpose of the regulations®'—direct interfer-

$0 _—In enacting Title X, Congress intended to establish a program that

would provide the poor with comprehensive reproductive health care. During

the floor debate in the House, then-Representative George Bush stated,

“‘ImJost iraportant is that this legislation be recognized. . . asa health care

service mechanism . . .”” 116 Cong. Rec. H37370 (daily ed. Nov. 16, 1970)

(statement of Rep. Bush). The statutory mandate of Title X is expansive:

to assist in the establishment and operation of voluntary family plan-

ning projects which shall offer a broad range of acceptable and effec-

tive family planning methods and services (including natural family

planning methods, infertility services, and services for adolescents).

42 U.S.C. § 300(a) (1982). For a complete discussion of the purpose of Title

X, see Brief of Petitioner State of New York, ef al. and Brief of Amici

Curiae NAACP Legal Defense and Educational Fund, Inc., ef al.

$1 At least one member of the Court has advocated searching scrutiny

of the government's stated purposes as well as the means to achieve those

purposes. In Mississippi University For Women v. Hogan, Justice O'Connor

emphasized that “‘the mere recitation of a benign . . . purpose is not an

automatic shield which protects against any inquiry into the actual purposes

underlying a statutory scheme.’ 458 U.S. 718, 728 (1982) (quoting Wein-

berger v. Wiesenfeld, 420 U.S. 636, 648 (1975)).

Similarly, in a first amendment context, Justice O’Connor also suggesied

that strict scrutiny applies whenever burdens on speech are imposed on the

pretext of furthering some general legislative imerest: ‘‘{iJf. . . a city were

to use a nuisance statute as a pretext for closing down a bookstore because it

sold indecent books . . . the case would clearly implicate first amendment

concerns and require analysis under the appropriate first amendment stan-

dard of review.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986)

(O’Connor, J., concurring).

Justice O'Connor recently observed that the requirement of narrowly tai-

lored regulation is ‘‘designed to ‘ensur[e] that the means chosen fit’ [the]

compelling goal so closely that there is liule or no possibility that the

motive” for a regulatory scheme is illegitimate or unconstitutional. Metro

Broadcasting, Inc. v. FCC, $8 U.S.L.W. 5053, $072 (U.S. June 27, 1990)

(O'Connor, J., dissenting) (quoting Croson, 109 S. Ct. at 493).

er OO ILO LE EG IIE om

ence in the fundamental privacy and first amendment rights

of women to make fully informed decisions between abortion

and childbirth.”

Second, the government’s means of banning abortion

counseling and mandating referral to prenatal care are not

narrowly tailored to serve the goal of encouraging childbirth

without impermissibly violating the free speech and privacy

rights of women served by Title X programs. The regulations

clearly conflict with medical ethics that demand unrestricted

communication between a physician and her patient.*’ The

government’s asserted interest here does not justify the enact-

ment of health regulations that ‘‘depart from accepted medi-

cal practice,’ City of Akron v. Akron Center for Reproduc-

tive Health, Inc., 462 U.S. at 431 & 454 (O’Connor, J.,

dissenting). Rather than being narrowly tailored to encourage

childbirth over abortion, the regulations distort the physician-

patient dialogue in a way that fundamentally impedes the

patient's receipt of viewpoint neutral information and her

autonomy in reproductive decisionmaking.

Finally, the Title X regulations also fail to pass muster

under the Court’s most lenient standard of review, the

rational basis standard. As the Court recently reiterated in

Hodgson, under any analysis, an abortion regulation ‘‘cannot

be sustained if the obstacles it imposes are not reasonably

related to legitimate state interests.’’ Hodgson v. Minnesota,

58 U.S.L.W. at 4962 (citations omitted). Because the effect

of the regulations’ ban on abortion counseling and referral is

seriously to endanger maternal] health, the regulations’ goal

of promoting childbirth actually undercuts Title X’s over-

arching public health purpose in a manner that violates medi-

cally accepted practice. Any regulation which so clearly

$2 ; As the Court pointed out in Hodgson, ‘*[a] State’s value judgment

favoring childbirth over abortion may provide adequate support for deci-

sions involving [the] allocation of public funds, but not for simply substitut-

ing a state decision for an individual decision that a woman has a right to

make for herself. Otherwise the interest in liberty protected by the due pro-

cess clause would be a nullity."” Hodgson v. Minnesota, $8 U.S.L.W. 4957,

4962 (U.S. June 25, 1990).

$3. For a complete discussion of this point, see Brief of Amici Curiae

the American College of Obstetricians and Gynecologisis, ef al.

— pr, tee See eee fh Se

departs from commonly accepted medical ethics and practice

cannot be rationally related to a legitimate state interest in

promoting health and cannot be saved simply because it

serves some ancillary purpose.

By analogy, suppose perceiving a serious threat oi over-

population, the government opted to respond to the crisis by

limiting population growth through a program of male sterili-

zation. A federal program of forced sterilization of men

would violate a man’s right to decide whether or not to have

children, and would necessarily be struck down by the Court

on privacy and equal protection grounds. Cf. Griswold v.

Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316

U.S. 535 (1942). However, a government program providing

federal funding of the full cost of male sterilizations (but not

funding male fertility treatment) and establishing population

control clinics for the performance of sterilization on demand

would be a possible alternative under prevailing constitutional

doctrine. Cf. Maher v. Roe, 432 U.S. 464 (1977); Harris v.

McRae, 448 U.S. 297 (1980). Hypothesize further that an ill-

ness breaks out which causes sterility in men only, but can be

cured if diagnosed and treated promptly. To further promote

population control, the government enacts regulations which

prohibit health care professionals in federally funded facilities

from counseling men with the illness about its treatment. In

this hypothetical, the legitimate goal of promoting population

control is pursued by a means which violates an individual's

fundamental rights and is a pretext for the unconstitutional

purpose of denying men their right to choose whether or not

to have children.

ne ee Ee Ee

CONCLUSION

Amici respectfully urge that the regulations should be

invalidated as an impermissible ‘‘effort to deter a woman

from making a decision that, with her physician, is hers to

make.’’ Massachusetts v. Secretary of Health and Human

Services, 899 F.2d 53, 66 (Ist Cir. 1990) (en banc) (quoting

Thornburgh v. American College of Obstetricians and Gyne-

cologists, 476 U.S. 747, 759 (1986)). For all the foregoing

reasons, the Court should strike down the Title X regulations

as unconstitutional.

Dated: July 27, 1990

Respectfully submitted,

Sarah E. Burns John H. Hall

Alison Wetherfield Counsel of Record

NOW LEGAL DEFENSE AND- Geoffrey H. Coll

EDUCATION FUND Claudia A. Lewis

99 Hudson Street Randi J. Roberts

12th Floor Mallika Dutt

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

Attorneys for Amici Curiae

New York, New York 10013

INTEREST OF AMICI CURIAE ORGANIZATIONS

ABORTION RIGHTS MOBILIZATION is an organization

dedicated to implementing and guaranteeing women’s right to

legal abortion as decreed by the U.S. Supreme Court.

ActionAIDS, in Philadelphia, Pennsylvania, provides

ongoing direct services to approximately 400 of the men,

women and children with symptoms of HIV disease in the

Greater Philadelphia area. Additionally, it provides support

and assistance to their spouses, lovers, family members and

care givers. Access to comprehensive reproductive health

information—including information about abortion and

abortion services—can be crucially important to women who

have tested positive for the AIDS virus. These women need

access to such equitable medical coverage in order to have a

true moral choice with regard to one of the most heartbreak-

ing and difficult decisions—that of whether or not to bear a

child who may be born with AIDS. Because women at high

risk of AIDS frequently discover their own HIV-positive sta-

tus as a result of giving birth to a child with AIDS, access to

comprehensive reproductive health care, including abortion,

becomes a matter of paramount importance. For medical,

moral and emotional reasons, these women cannot reasona-

bly be required to carry future inadvertent pregnancies to

term. Low income and adolescent women, many of whom

are people of color, are in particular need of access to the

federally funded family clinics that provide comprehensive

reproductive health information—including abortion

services—as one of their services. Without such access, we

can expect a marked increase in both unsafe, illegal abortions

and AIDS infection in women and their children.

The ALL-PEOPLES CONGRESS (the ‘‘Congress’’), based

in New York City, is a national organization with chapters in

communities in major cities whose women members are

Black, Latina, Asian, Native American, White, students, les-

bians, workers, unemployed, disabled seniors, single heads of

households and those on fixed incomes. ine Congress sup-

ports a comprehensive federal health care program of guaran-

eee ee er ae

health care, and access to and

information concerning safe, legal, affordable abortion. It

opposes any restrictions in Title X facilities which would put

any obstacles in the way of poor women or deny them infor-

mation on abortion, birth control, or any other information

necessary in order to make informed choices.

The AMERICAN ASSOCIATION OF UNIVERSITY

WOMEN (the “AAUW”), a network of 135,000 college-

educated women, promotes equity for women and girls, edu-

cation and self-development over the life span and positive

societal change. The AAUW supports the right of every

woman and girl to safe and comprehensive reproductive

health care. AAUW believes that decisions concerning repro-

ductive health care are personal ones, and that the right to

make informed decisions should be available to all women.

The AMERICAN HUMANIST ASSOCIATION (the

“AHA"”) is a nationwide philosophical-lifestance-religious

membership organization, founded in 1941. The AHA and its

members support reproductive choice and believe that the

HHS regulations forbidding the provision of information

about abortion in Title X-funded programs can only have a

negative effect on women’s health and the integrity of coun-

selors.

The AMERICAN JEWISH COMMITTEE (“*AJC’’) is a

national organization of 40,000 members, founded in 1906

for the purpose of protecting the civil and religious rights of

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

plisted by helping to preserve the constitutional rights of all

Americans, including the fundamental right of access to

abortion on a voluntary basis.

AMEXICANS FOR RELIGIOUS LIBERTY (the “ARL"’)

is a nationwide educational public interest organization,

founded in 1981, dedicated to defending religious liberty,

reproductive freedom, and the constitutional principle of sep-

aration of church and state. ARL regards the restrictions on

abortion counseling and referrals under Title X as violative

of the counselor-client relationship, of the client’s right to

teed reproductive rights,

know, of the free exercise of religion, of reproductive free-

dom, and of the constitutional ban of laws ‘‘respecting an

establishment of religion.’’

The ASIAN AMERICAN LEGAL DEFENSE AND EDU-

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

national civil rights organization that addresses the critical

problems facing Asian Americans, including Asian women

utilizing health clinics that are funded under Title X of the

Public Health and Human Services Act. AALDEF seeks to

improve the quality of life for Asian immigrant women, who

constitute the largest sector of Asian women in the United

States. AALDEF has assisted the formation of the Asian

Women’s Center located in New York City, which provides

shelter with bilingual services for battered women. AALDEF

- committed to defending a woman's right to reproductive

choice.

The ASSOCIATION FOR VOLUNTARY SURGICAL

CONTRACEPTION is a not-for-profit family planning mem-

bership organization dedicated to the principle that men and

women everywhere should have access to safe and effective

voluntary sterilization. The organization, which works in the

United States and over 50 other countries, is funded by con-

tributions from iidividuals, foundations, and by the United

States government.

ASSOCIATION FOR WOMEN IN PSYCHOLOGY is a

national organization founded in 1969 to promote the issues

of women’s mental health. The organization's position over

the years has been that reproductive choice enhances wom-

en’s mental health.

AWARE is a community-based, participatory research and

educational organization conducting clinical, behavioral, and

epidemiological research on women and HIV infection in the

San Francisco Bay Area. AWARE findings have been pub-

lished in scientific journals and have been presented at

national and international medical, behavioral and public

health meetings since 1985. Access to information about and

services providing pregnancy termination services are essentia]

as unwanted pregnancies may accelerate the progression of

HIV infection among women. The pain, suffering, and costs

of delivering infants who may themselves be infected and

may require extended hospitalization and treatment, until

they too die from AIDS, is already a severe burden to health

and social service systems in many states.

The BEVERLY HILLS BAR ASSOCIATION (the

“BHBA") is a voluntary bar association formed on Decem-

ber 2, 1931 that currently has 3,000 members. The members

of BHBA practice in and around the City of Beverly Hills,

California. BHBA is committed to the protection of individ-

ual liberties and to the promotion of respect for the legal sys-

tem. BHBA believes that a reversal of the landmark decision

in Roe v. Wade would undermine public confidence in the

legal system.

The BLACK WOMEN’S AGENDA, INC. is a private

organization which aims to improve the status of Black

women and their families and supports equal access to repro-

ductive freedom.

The BRADFORD COUNTY COALITION FOR CHOICE

(the ‘Coalition for Choice’’) is a citizen's organization com-

mitted to a woman’s right to reproductive choice. The Coali-

tion for Choice objects to the gag rule which we feel is

unconstitutional.

The BROOKLYN WOMEN’S POLITICAL CAUCUS

(“BWPC”), one of the local groups which together make up

the National Women’s Political Caucus, is a bi-partisan orga-

nization which has as its goal the election and appointment

of progressive women to public office. In order to be eligible

for our endorsement, candidates must agree to our four basic

principles: choice for all] women on whether or not to bear

children, support of the Equal Rights Amendment, support

of gay rights, and support of public funding for day care.

Membership in the BWPC is open to all men and women

who live in Brooklyn, work in Brooklyn, or have an interest

in Brooklyn.

CALIFORNIA WOMEN LAWYERS (the ‘‘CWL”’) repre-

sent the interests of 23,000 women attorneys throughout the

State of California. CWL is committed to preserving the fun-

damental constitutional right to choose and is very concerned

by the recent erosions of such rights by the courts. It must be

realized that every woman in this free country not only has

the right to choose to have an abortion, but also has a safe

place to get one.

In 1974, the CANADIAN ABORTION RIGHTS ACTION

LEAGUE (the ‘“‘CARAL")—then called the Canadian Asso-

ciation for Repeal of the Abortion Law—was formed to sup-

port Dr. Henry Morgentaler’s challenge of the old abortion

law. CARAL supported Dr. Morgentaler’s battle politically

and financially, and at the same time educated Canadians

about the abortion issue so that his challenge to the law

would be met by an informed and sympathetic public.

CARAL supported clinics operating outside the strict con-

fines of the law as necessary to open up access to abortion

services. CARAL grew from a group of 100 people to

become a national organization with 25 chapters, thousands

of individual members and 100 member organizations. Until

January 28, 1988 (when the Supreme Court of Canada

declared the law unconstitutional) CARAL lobbied the gov-

ernment to repeal the abortion law. CARAL is now working

to keep abortion out of the Criminal Code and to improve

access to medically-insured abortion services across the coun-

try. Through education and information, CARAL seeks to

convince Canadians and their elected representatives that

Canada does not need a new abortion law. CARAL is the

only national organization working full-time to keep a’ ortion

out of the Criminal Code and to protect access to abortion.

The CENTER FOR LAW & SOCIAL JUSTICE (the

“CLSJ"’) at Medgar Evers College is a research and advocacy

institution created in 1985 by a special appropriation of the

New York State Legislature to establish a legally oriented

civil rights and social justice institution in New York City.

CLSJ conducts litigation and public policy projects on mat-

ters involving pressing civil and human rights issues, in such

areas as employment, health care, and housing. Discrimina-

tion in these areas has historically plagued the African-

American communities CLSJ serves, particularly the women

in these communities. These women are the ones who will

suffer tremendously should the Title X regulations be upheld.

For this reason, CLSJ joins as amicus curiae in this consoli-

dated appeal to the United States Supreme Court.

The CENTER FOR PUBLIC REPRESENTATION (the

“Center”) is a nonprofit, public interest law firm. The pur-

pose of the Center is to provide research and t to

women, families, and consumers, to speak out on behalf of

these such unrepresented groups, and to take on cases 10

make sure that their interests are served. A large portion of

the Center's efforts is directed at advocating for and protect-

ing the rights of women and it feels that prohibiting

federally-funded family planning clinics from providing abor-

tion and referrals will have a direct negative

impact on the health of the low income women that the Cen-

ter represents who would no longer receive vital information

on reproductive choices.

The COLORADO WOMEN’S BAR ASSOCIATION (the

“CWBA") is a sonprofi professional association of more

than 600 Colorado lawyers and law students. Open to all

attorneys regardless of sex, the CWBA was founded in 1977

to promote the highest standards of the legal profession, to

advance justice, to promote, advance, and protect the inter-

ests and welfare of women, and to pursue these goals

through appropriate legal, social and political action. The

CWBA supports reproductive freedom and opposes any

effort to restrict the access of women to information neces-

sary to make fully-informed decisions about their health and

their lives.

The COMMITTEE FOR HISPANIC CHILDREN AND

FAMILIES, INC. (the ““CHCF"') feels that the Tithe X regu-

lations as they now stand are detrimental to the health of low

income Latina women. Many times, Latina women are faced

with no other safe alternatives but to use Title X funded ¢lin-

ics. Not allowing Title X funded clinics to give all the infor-

ion that women need to make reproductive chokes is

equal to saying they are not allowed to have a choice. Those

at CHCF, a founder of the Latino Roundtable on Women's

Health and Reproductive Rights, are extremely concetacd

about the health of poor women.

The COMMITTEE TO DEFEND REPRODUCTIVE

RIGHTS (“CDRR") is a San Francisco community-based

organization with 1,000 members throughout California and

several other states. For ten yeats, CORR has been dedicated

to ensuring women's reproductive freedom by engaging m

public education issues concerning reproductive rights and the

freedom of all women, including young women.

CHOICE (Concern For Health Options Information, Care

& Education) has for the past two decades been a respected

and reliable source of information, education and counseling

issues of reproductive heakh. CHOICE is commit-

people, regardless of age, race,

entitled to be fully informed of

DISABLED IN ACTION OF METROPOLITAN NEW

YORK is a non-profit civil rights organization advocating for

the needs of all disabled individuals, including disabled

less of age, who may choose for whatever reason to have an

abortion.

EQUAL RIGHTS ADVOCATES, INC. (“ERA") is a San

Francisco-based public interest legal and educational corpora-

tion dedicated to working through the legal sysiem to end

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

est, activism and advocacy in all areas of the law which

affect equality between the s.1¢s. ERA believes that the right

to control one's reproductive life is fundamental to women's

ability to gain equality in other aspects of socicty.

The FEDERATION OF FEMINIST WOMEN’S HEALTH

CENTERS (the ‘‘Federation’’) is a group of women-

controlled clinics in the United States that provide birth con-

trol and abortion to women. The Federation clinics have also

assisted pregnant women in locating adoptive parents. Its

clinics provide inexpensive, outpatient abortions, and thou-

sands of lower-income women utilize our services. If the new

Department of Health regulations were to go into effect, its

abortion clinics would not be able to receive referrals from

Title X clinics, thus significantly limiting its ability to provide

women with the safe, legal health care they seek. The Federa-

tion of Feminist Women’s Health Centers strongly support

the provision of complete information to women with prob-

lem pregnancies to enable each woman to reach her decision

about her pregnancy with full informed consent.

The FEMINIST INSTITUTE promotes social change that

ensures women’s autonomy and independence. Its women’s

health policy and pro-choice projects promote public policies

that ensure women’s control over their own bodies. The Fem-

inist Institute is concerned that, as women become free from

subjugation to patriarchal control within the family, they in

turn, not become subject to state control of their reproduc-

tion. Control over one’s own body without intervention or

restriction by the government is fundamental to the exercise

of personal autonomy.

The HISPANIC HEALTH COUNCIL is a non-profit

organization working with low-income Hispanic families,

youth and women. For 12 years we have actively advocated

on behalf of Puerto Rican women, offering health, educa-

tion, life skills training, and mutual support in an effort to

enhance self-sufficiency and help women regain control over

their lives. Most of our clients depend on Medicaid; there-

fore, Title X regulations would be one more attack on those

women who are the least able to respond through institu-

tional and other means.

The HUMAN RIGHTS CAMPAIGN FUND (the ‘‘Cam-

paign Fund’’) is a national political and advocacy organiza-

tion representing lesbian and gay Americans in Washington,

D.C. Since its founding ten years ago, the Campaign Fund

has been committed to working toward full civil rights for

lesbians and gay men and ultimately for all Americans. In

pursuit of this goal, the Campaign Fund is interested in any

governmental actions—legislative, judicial, or administra-

tive—that could impact on civil rights. In addition, its Les-

bian Action Agenda is devoted to addressing the poiitical and

policy issues of the lesbian community. A survey of its les-

bian membership revealed that reproductive freedom is one

of three top priority issues for lesbians.

The INSTITUTE FOR WOMEN’S POLICY RESEARCH

(““IWPR"’) is an independent, nonprofit, scientific research

institution established to respond to the need for women-

centered, policy-oriented research. IWPR conducts research

that addresses the full spectrum of issues that impact on

women’s lives—with sensitivity to and consideration for

diversity based on race, ethnicity, and class. The focus of the

Institute’s research is both national and international in

scope. In all aspects of its endeavors, IWPR is committed to

expanding access, strengthening relationships, and fostering

partnerships which strengthen the economic, social, and polit-

ical well-being of all women. IWPR gives its full support to

the amicus curiae brief in these cases. IWPR urges the Court

to uphold women’s right to reproductive choice because,

among other reasons, women’s right to reproductive choice is

a key element in their ability to achieve economic equity.

The JESSIE SMITH NOYES FOUNDATION (the ‘*Foun-

dation”’) is a private foundation committed to preventing

irreversible damage to the natural systems upon which all life

depends. The Foundation makes grants in the closely interre-

lated areas of environment and population. The Foundation,

therefore, believes that reproductive rights are essential to

achieving a balance between environment and population, as

well as to the individual dignity of women.

The LEAGUE OF WOMEN VOTERS OF THE UNITED

STATES (the ““LWVUS’”) is a nonpartisan, nonprofit mem-

10a

bership organization with members in all 50 states, the Dis-

trict of Columbia, Puerto Rico, and the Virgin Islands. The

LWVUS strongly believes that public policy in a pluralistic

society must affirm the constitutional right of privacy of the

individual to make reproductive choices. The LWVUS has

adopted the protection of the right of privacy in reproductive

choices as one of its issues for emphasis during its 1990-92

national program.

MADRE is a national women’s friendship association that

sees the connections between U.S. policy and its effects on

women and children in the U.S., Central American and the

Caribbean. MADRE’s work includes programs which address

healthcare and childcare issues which affect women’s daily

lives. We support reproductive freedom and quality afforda-

ble healthcare for all women. We know that poor women and

women of color are most affected by restrictive policies. We

therefore sign on to the amicus brief in its opposition to the

regulations imposed by Title X.

MEN OF ALL COLORS TOGETHER/NEW YORK

(‘“‘“MACT/NY”’) is a multiracial organization of gay men

committed to addressing and combatting racism and discrimi-

nation in the lesbian and gay male community, and to pro-

viding an environment for interracial relating among gay

men. In addition, MACT/NY is committed to being a vital

part of the feminist movement, combatting sexism and con-

tinuing to be integrally involved in the struggle for reproduc-

tive choice and the equality of women.

MOBILIZATION FOR YOUTH HEALTH SERVICES,

INC. employs over 600 women, the overwhelming majority

of whom are of Caribbean, South American and Asian ori-

gin. Given the current American social reality, nearly all of

these women suffer from relatively low wages, limited choice,

and other disadvantages. If deprived of certain entitlements

for all women—entitlements whose elimination more affluent

women may more easily endure given their resources—poorer

women often will have no other recourse than to use unsafe

means within their economic grasp to continue the current

lla

status quo and thereby be frustrated by the loss of the entitle-

ment.

The MS. FOUNDATION FOR WOMEN (the ‘‘Founda-

tion’’), the only national, multi-issue, public women’s fund in

the country, was founded in 1973 to support women’s efforts

to govern their lives and influence the world around them.

We fund and assist women’s self-help organizing efforts and

pursue changes in public consciousness, law, philanthropy -

and social policy. The Foundation directs its resources to

activities that break down racial, class, age, sexual orienta-

tion and cultural barriers. Through its Reproductive Rights,

Health and AIDS Project, the Ms. Foundation is committed

to protecting the reproductive rights for all women, especially

women of color, low-income women and adolescent women.

The Title X regulations threaten the rights of these women

and therefore should be considered unconstitutional.

MY SISTER’S PLACE, Yonkers, New York, a refuge

from violence in the family, is a non-profit organization

founded in 1978. My Sister’s Place is dedicated to ending vio-

lence and abuse in the lives of women and their children. It

provides services to 1,000 women each year. Most of these

women are on public assistance. My Sister’s Place feels that

accessibility to information regarding abortion counseling and

referrals to women is imperative to its attempt at empowering

battered women and giving them control over their lives—

especially in the area of reproductive freedom.

The NATION INSTITUTE (the ‘“*Institute’’) is a non-

profit organization whose purpose is to undertake and sup-

port research, conferences, seminars, publishing ventures,

educational programs, and other activities with an emphasis

on civil liberties, social justice, and peace and disarmament.

The Institute has a fundamental commitment to those rights

protected by the speech, press and assembly clauses of the

First Amendment. And, since it firmly believes that the best

defense of free speech is the exercise of that right, the Insti-

tute takes a special interest in extending the audience (and

thus enhancing the influence) of independent journals of

l2a

political commentary, investigative reporting and dissenting

opinion.

The NATIONAL ABORTION RIGHTS ACTION

LEAGUE (‘‘NARAL”’), has over 400,000 members in 41

state affiliates and the national organization. Founded in

1969, NARAL is the largest national organization dedicated

solely to keeping abortion safe, legal and accessible. NARAL

recognizes that guaranteeing women the full range of repro-

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

The NATIONAL ASSOCIATION OF COMMISSIONS

FOR WOMEN (the ‘‘NACW’’), a non-partisan organization,

is a membership organization composed of regional, state,

county and city commissions created by government to

improve the status of women. It was founded in 1970 to give

a national voice to commissions for women to create an

exchange of information and ideas among government, the

private sector and women’s organizations. NACW is commit-

ted to eliminating discrimination on the basis of sex, race,

age, religion, national origin or marital status in all phases of

American society furthering legal, social, political, economic

and education opportunities for women and promoting the

dissemination of information and providing counsel on

opportunities for the effective participation of women in the

private sector.

The NATIONAL CENTER FOR LESBIAN RIGHTS (the

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

profit public interest law firm founded in 1977 and devoted

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

crimination on the basis of their sexual orientation, including

in the area of reproductive rights. NCLR is a national organi-

zation with a strong commitment to increasing access to

reproductive rights for women, specifically for lesbians, and

has demonstrated that commitment through both litigation

and community education. NCLR has appeared as counsel

and amicus curiae in numerous cases on behalf of women

who have been denied access to their reproductive rights, or

whose reproductive rights have been restricted by the state.

l3a

The NATIONAL COALITION AGAINST DOMESTIC

VIOLENCE, in commitment to the struggle for reproductive

choice and the equality for all women, is signing on as an

amicus curiae on the brief filed in the consolidated appeal of

Rust v. Sullivan and New York v. Sullivan. This brief chal-

lenges the constitutionality of Title X regulations that would

prohibit federally-funded family planning clinics from provid-

ing abortion counseling and referrals. Every woman regard-

less of her race or economic level has the right to free speech

and the right to make an informed decision about private,

medical matters. The Title X regulations would deny this

right to women who need it most, low income and adolescent

women, many of whom are women of color. These regula-

tions should be deemed unconstitutional as they jeopardize

the reproductive health of the 5 million women who utilize

federally-funded family planning clinics each year.

The NATIONAL COUNCIL OF JEWISH WOMEN (the

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

volunteer organization in America. NCJW’s 100,000 mem-

bers in more than 200 sections across the United States keep

the organization’s promise to dedicate themselves, in the

spirit of Judaism, to advancing human welfare and the demo-

cratic way of life through a combination of social action,

education and community service. NCJW is concerned with

individual rights and its National Resolutions include working

for ‘‘services which provide family planning and reproductive

choice, regardless of age and ability to pay, while assuring

confidentiality.’’

The NATIONAL LATINA HEALTH ORGANIZATION

was founded because as Latinas its members felt very

strongly that they themselves needed to do something about

the quality of their health, about the injustices, neglect and

racism they as a group have suffered. Their health issues

have not been addressed. Lack of awareness on the part of

the medical profession and the language barrier have had a

major impact on their accegg to medical care. Restriction of

services and information related to abortion and other repro-

ductive services will jeopardize their health and their lives

l4a

even further. The National Latina Health Organization must

have all information and services available to them so they

can make knowledgeable, educated and healthful choices for

themselves.

The NATIONAL LAW CENTER ON HOMELESSNESS

AND POVERTY (the ‘‘Center’’) is a nonprofit national

advocacy group based in Washington, D.C. The Center mon-

itors and enforces federal laws to aid homeless and poor per-

sons. In addition, the Center promotes public policies

designed to aid homeless and poor persons. The Center

believes that further restrictions on federal funding of family

planning programs will unfairly and disproportionately bur-

den homeless and poor women. Because the Center also

believes that these restrictions are illegal, it joins in opposing

them.

The NATIONAL LAWYERS GUILD (the ‘‘Guild’’) is a

national organization representing over 8,000 lawyers, legal

workers, law students and jailhouse lawyers in over 200 chap-

ters throughout the United States. Since its founding in 1937,

the Guild has provided legal support to virtually every strug-

gle in this country for economic, social and political justice.

The Guild is firmly committed and is working actively to pro-

tect the rights of all people, and specifically the right of every

woman to have access to all forms of family planning,

including safe and legal abortion.

The NATIONAL MEDICAL ASSOCIATION, founded in

1985, represents 16,000 Black physicians in the United States,

including Puerto Rico and the Virgin Islands. The National

Medical Association seeks to foster the enactment of just

medical laws and to educate the public concerning all matters

affecting public health, especially matters affecting the socio-

economically disadvantaged and the health care of women.

The National Medical Association supports the common

struggle for reproductive choice and the equality of women.

The NATIONAL ORGANIZATION FOR WOMEN

(‘‘NOW”’) is a national membership organization of approxi-

mately 270,000 women and men in about 750 chapters

lSa

throughout the country. It is a leading advocate of women’s

equality in all areas of life. NOW has as one of its priorities

the preservation of the right to reproductive freedom, includ-

ing abortion.

The |NATIONAL REPUBLICAN COALITION FOR

CHOICE (the ‘‘Coalition’’) is a political committee founded

to identify, organize and mobilize pro-choice Republicans, to

help elect pro-choice Republicans in primary and general elec-

tions and to promote the ‘‘choice’’ position as the official

position of the Republicar. Party. In this way, the Coalition

works to ensure the rights of a// women to reproductive free-

dom.

The NATIONAL WOMEN’S HEALTH NETWORK (the

“NWHN”) is a public interest organization whose member-

ship, comprising 10,000 individuals and 400 organizations

representing 500,000 women, seeks to give women a voice in

the health care system of the United States. The NWHN sup-

ports women’s rights to have complete control over their

bodies, which must include the right to make decisions to use

contraception, to bear children or to end a pregnancy. The

NWHN serves as an advocate for women whose voices are

a heard in the creation of health policies at the federal

evel.

The NATIONAL WOMEN’S LAW CENTER (the ‘‘Cen-

ter’’) is a Washington, D.C.-based legal organization which

has been working since 1972 to advance and protect women’s

legal rights. The Center’s primary goal is to ensure that pub-

lic and private sector practices and policies better reflect the

needs and rights of all women. The heavy burden of the Title

X prohibition on abortion counseling and referral falls on the

reproductive rights and health of poor women who are dis-

proportionately women of color.

The NATIONAL WOMEN’S POLITICAL CAUCUS (the

‘““NWPC”’) is a nonprofit organization supporting the

appointment and election of women to public office. NWPC

also supports legislative initiatives at the state and national

levels to ensure fairness and equity for all Americans.

l6a

NEW DIRECTIONS FOR WOMEN is committed to pub-

lishing the many voices of feminism. It believes the diversity

of the women’s movement must be seen as one of its

strengths. New Directions for Women is a national feminist

periodical written for feminists and committed to reaching

out to those not yet dedicated to a feminist future. New

Directions for Women believes that when we understand the

pervasive force of sexism, we will act to effect change.

NEW JEWISH AGENDA (‘‘NJA’’), founded in December

1980, has chapters in more than 45 American cities. NJA’s

5,000 members work to foster traditional progressive Jewish

values and to promote Jewish participation in progressive

coalitions. In keeping with Jewish tradition, NJA will fight to

keep abortion safe and legal for all women. It will work to

eliminate the obstacles which prevent women, especially poor

women, from gaining control over their reproductive lives.

NEW YORK ASIAN WOMEN’S CENTER is a

community-based program to provide direct services for

Asian battered women and sexual assault survivors and to

educate and organize the public to work towards eliminating

the problem of violence against women in the Asian com-

munities. It believes that women have the right to make

informed choices about every aspect of their lives, including

choices concerning health care. It also believes that women,

particularly women of color and poor women, must have true

access to quality affordable services in order to exercise their

right to make an informed decision.

The NEW YORK CITY COALITION FOR WOMEN’S

MENTAL HEALTH is an educational institution comprised

of institutions, individuals, consumers, advocates, and mental

health professionals. Our educational purpose is to ensure

that women of all classes of society are fully informed and

provided with information that is germane to their mental

health needs.

The NEW YORK COALITION OF 100 BLACK WOMEN

was organized to act as an advocate for Black women. It pro-

vides a forum to explore issues of concern to Black women

17a

and then a vehicle to act upon them. In doing so the Coali-

tion encompasses the full spectrum of empowerment in every

arena, including pro-choice issues.

The NEW YORK PRO-CHOICE COALITION (the ‘‘Coa-

lition’’) was founded by Merle Hoffman in 1985 as an

umbrella organization of individuals and groups committed

to the maintenance of legal, safe abortion. The Coalition’s

purpose is to ensure for all women: safe, legal, accessible

abortion; reinstatement and/or continuance of Medicaid

funding for abortion nationally; availability of and access to

safe, effective birth control and information concerning their

reproductive lives and health; the right to choose the timing

of motherhood by ensuring the provision of adequate prena-

tal care and the elimination of sterilization abuse. As an

organization committed to women’s well-being and the abso-

lute right of women to control their own reproduction, the

Coalition is greatly alarmed at the possibility that Title X reg-

ulations eliminating abortion counselling from federally

funded clinics may be upheld as constitutional.

The NEW YORK STATE REPUBLICAN FAMILY COM-

MITTEE is an educational advocacy organization devoted to

promoting policies that foster maximum choice, particularly

in matters of health. Founded in 1984, the Committee has

over 600 Republican party members, 99 percent of whom

reside in New York State. Its membership includes lawyers,

health care professionals, business people, educators, philan-

thropists, and numerous civic and political leaders.

NEW YORK UNIVERSITY LAW WOMEN is an organi-

zation committed to promoting an understanding of issues

that are of importance to women. We support strongly all

measures which promote the health of women, the mainte-

nance of the fundamental right of reproductive choice, the

protection of the right of bodily autonomy, and the equality

of women.

NEW YORK WOMEN IN CRIMINAL JUSTICE is an

organization of women whose members include police, pro-

bation and corrections officers; judges, attorneys and social

18a

workers; others who work in the criminal justice system; and

inmates and ex-offenders. It strongly objects to regulations

that bar the provision of information about abortion in

federally-funded family planning clinics. The overwhelming

majority of women in prison are low income women who rely

on federally-funded family planning clinics for their repro-

ductive health and medical needs; these regulations preclude

the dissemination of information necessary for them to make

fully informed decisions on abortion, and effectively limits

their access to affordable abortion providers. The organiza-

tion supports the right of women to choose abortion, a right

which should not be restricted only to those women who can

afford family planning.

The NORTHWEST WOMEN’S LAW CENTER (the

‘‘Law Center’’) is a private non-profit organization in Seat-

tle, Washington, that works to advance the legal rights of

women through litigation, education, legislation and provi-

sion of information and referrals. Protecting women’s free-

dom of reproductive choice is one of the Law Center’s

priority issue areas. The Law Center has participated in

numerous cases involving reproductive rights before the U.S.

Supreme Court and other courts both within and outside

Washington State.

The NOW LEGAL DEFENSE AND EDUCATION FUND

(‘“‘“NOW LDEF’’) is a non-profit civil rights organization that

performs a broad range of legal and educational services

nationally in support of women’s efforts to eliminate sex-

based discrimination, secure equal rights, and preserve repro-

ductive options under law.

The OLDER WOMEN’S LEAGUE (“‘OWL’’), a national

organization of 20,000 members is committed to achieving

economic and social equity for midlife and older women.

OWL believes that women have a right to stay in control of

their lives from birth to the end of their lives. Accordingly,

OWL believes in a woman’s right to reproductive freedom.

19a

The ORGANIZATION FOR OBSTETRIC, GYNECO-

LOGIC, AND NEONATAL NURSES (‘““NAACOG’’) is the

professional nursing organization for 24,500 OGN nurses.

Established in 1969, NAACOG members are nurses and

allied health care professionals who practice throughout the

United States and its territories, Canada, Germany, and

Korea. NAACOG represents the interests of its members

whose common concern centers around access to care and

quality of care for women, infants, and their families.

The PATHFINDER FUND (‘‘Pathfinder’’), founded in

1957, is dedicated to ensuring the availability of family plan-

ning services for those in need throughout the developing

world. Pathfinder’s activities include exploring new service

delivery mechanisms, building !ocal institutions, training pro-

viders, and providing contraceptive supplies. In both the

United States and overseas, it addresses public policy issues

that affect the availability of safe and effective family plan-

ning services.

The PEMBROKE CENTER FOR TEACHING AND

RESEARCH ON WOMEN at Brown University funds fel-

lowships to support national and international scholars whose

research focuses on gender. The Brown Undergraduate Wom-

en’s Studies concentration is also housed at the Center. The

Center believes that every women, rich and poor alike,

deserves the right to make fully informed decisions regarding

her body. We as a society cannot revert to the days of illegal

abortions with the devastating results for women, especially

poor women. Health care is a right of all citizens.

PROJECT CHOICE: AIDS EDUCATION FOR WOMEN

OF COLOR (‘Project Choice’’) addresses the problem of

women who are at high risk of AIDS. Because the child of

an HIV positive woman has a 33-50% chance of becoming

HIV positive in utero, such women need the right to make a

choice about continuing their pregnancy. Project Choice

believes it is important that women have control of their

20a

reproductive lives and have access to abortion, especially

when they are at risk of passing disease on to their children.

The PROJECT ON WOMEN AND DISABILITY is an

organization of women committed to ending the oppression

of sexism and disability discrimination. Its goals are to pro-

vide training and organizing events and activities to encour-

age women with disabilities to take leadership in the women’s

movement and the disability rights movement. It is particu-

larly focused on reproductive rights and in gaining control

for all women over procreation and parenting.

The QUEEN’S BENCH BAR ASSOCIATION OF THE

SAN FRANCISCO BAY AREA (‘‘QB’’) is the oldest wom-

en’s bar association in Northern California. It was founded

in 1921 for women attorneys who were not accepted into the

local bar associations. Since then, it has grown into an orga-

nization that welcomes both women and men members.

Among its many goals and objectives are the preservation

and protection of the United States Constitution and the

rights found within it including the protection of freedom of

expression and the right to reproductive choice.

RACISM AND HOMOPHOBIA IN THE MEDIA

PROJECT (‘‘RHIM’’) is a group of Lesbian and Gay activ-

ists working to improve the images of Gay and Lesbian Peo-

ple of Color in the media. Stressing the need for positive

images and knowledgeable reporting, RHIM is working to

fight racism and other forms of prejudice and discrimination,

wherever they restrict a person’s freedom or capabilities.

RADICAL WOMEN, founded in 1967, is an international,

multi-racial organization of working women and students

dedicated to the causes of women’s equality and radical

social change, and has been fighting for unrestricted abortion

rights since the organization’s inception. Over the years Radi-

cal Women has continued to work on the abortion issue, par-

ticularly as the issue affects poor and working women and

women of color. These are the women who suffer most from

unwanted pregnancies, who die most often from botched,

illegal abortions, and who can least afford unwanted chil-

2la

dren. Radical Women branches across the United States have

been instrumental in organizing clinic defenses, forums, and

. petition campaigns to counter attacks on abortion rights.

The RAINBOW LOBBY, INC. is a grassroots citizens

lobby based in Washington, D.C., with over 200,000 mem-

bers and supporters nationwide. The organization lobbies pri-

marily on legislation regarding democracy and election

reform, and has launched a legislative campaign to improve

the quality of the 1992 presidential elections in the areas of

candidate selection, debates, and voter registration. The

Rainbow Lobby is committed to removing the political and

legal barriers that keep progressive, pro-choice positions from

being expressed in the electoral arena and in public policy.

REPRODUCTIVE HEALTH SERVICES (“RHS”’) is a

not-for-profit corporation with its principal place of business

in St. Louis, Missouri. RHS is a federal tax-exempt organiza-

tion under § 501(c)(3) of the Internal Revenue Code. It pro-

vides a full range of reproductive services to its client

population, including pregnancy testing, birth control, abor-

tion and a full range of adoption services. It presently pro-

vides approximately 50% of all abortions performed annually

within the State of Missouri. RHS firmly believes that the

challenged regulations clearly and punitively violate the con-

Stitutional rights of women seeking to make educated choices

about reproduction and that the challenged regulations have

a disproportionately adverse impact upon indigent women,

who are often in the greatest need of counseling and advice.

| The SAN FRANCISCO WOMEN LAWYERS ALLIANCE

is a progressive, activist bar organization, founded in 1983. It

IS @ grass roots organization; the general membership decides

what issues are addressed and how they are addressed. Mem-

bers have the opportunity to make a Significant impact on

issues affecting women. It prides itself on its ability to act on

current women’s issues with promptness and timely effi-

ciency.

. SANTA FE HEALTH EDUCATIONAL PROJECT is

interested in the outcome of this case because it is the

22a

founder of the Coalition for the Protection of Reproductive

Rights in New Mexico and feels women’s reproductive rights

are threatened. The purpose of the Coalition for the Protec-

tion of Reproductive Rights is to generate discussion and

widen understanding of reproductive health issues. These

include: health information, contraception, assistance in deal-

ing with unwanted pregnancies and the right to the choice of

whether to bring a pregnancy to term or not, pre-natal care

and day care. With such rights being threatened and access to

services and information, especially regarding abortion being

reduced, the present is a critical time to mobilize.

The SEX INFORMATION AND EDUCATION COUN-

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

national not-for-profit organization headquartered in New

York. SIECUS affirms that sexuality is a natural and healthy

part of living and advocates the right of individuals to make

responsible sexual choices. SIECUS provides information ser-

vices to professionals, students, and members of the general

public across the United States. SIECUS deplores any

attempts to undermine women’s reproductive health rights.

The SIECUS Board of Directors has passed a position state-

ment supporting the right to choose abortion, which states in

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

knowledge of alternatives available to her and to have comp-

lete and unbiased information and counseling concerning the

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

procedure, and of pregnancy and childbirth.’’ SIECUS

believes that the February 1988 regulations would deny

women the right and the ability to make responsible choices.

The SOUTHERN CALIFORNIA WOMEN’S LAW CEN-

TER (the ‘‘Law Center’’) was established in 1989 as the first

law center in Southern California solely devoted to address-

ing the civil rights of women and girls. The Law Center has

identified the following priorities for its work: reproductive

rights, sex discrimination in employment, sex discrimination

in education, family law, domestic violence and child care.

Protection of the right to reproductive freedom contained in

the federal Constitution, which, by definition, must include

23a

access to information concerning abortion services or refer-

ral, is one of the most significant legal issues facing women

in Southern California, as well as the rest of the country.

STUDENTS AND YOUTH AGAINST RACISM is a

national organization based in New York City with chapters

nationwide whose women members include students and

youth from many communities—Black, Latino, Asian, Native

American, White, lesbian, disabled, working, unemployed,

poor and heads of households. It organizes against racism

and all forms of discrimination in this society. It strongly

holds that full reproductive rights and quality health care is

the right of all young people and that access to and informa-

tion about safe, legal, affordable abortions and birth control

must be guaranteed and available to all youth, with Medicaid

funding for those who need it.

STUDENTS ORGANIZING STUDENTS (‘‘SOS’’) is a

nationwide student organization committed to reproductive

freedom and full reproductive rights for all women. Cur-

rently, nearly 80% of all women who obtain abortions fall

between the ages of 15 and 29; this age group of young

women makes up our growing constituency through which we

are advancing the reproductive freedom movement. SOS

organizes and mobilizes junior high, high school and univer-

sity students on the state, local and campus levels. To date,

S.O.S., in less than a year of existence, has established chap-

ters and affiliates on over 130 campuses throughout the

nation. S.O.S. does not view abortion as a single issue, but

as part of a broad health and reproductive rights agenda that

includes freedom from sterilization and reproductive abuses,

access to birth control and comprehensive sex education, ade-

quate pre- and post-natal care and childcare, AIDS education

and activism, parenting and reproductive rights for lesbian

women and gay men, and free abortion on demand. S.O.S.

opposes all attempts, whether by the Supreme Court, the

President, the United States Congress, state legislatures, or

anti-woman/anti-choice organizations to strip women of their

rights to full reproductive freedom. It views all women’s free-

dom to full reproductive choice as its goal; without full

24a

reproductive freedom for all women, regardless of race,

creed, color, financial situation or sexual orientation women

are not yet free.

The TUCSON WOMEN’S COMMISSION was founded in

late 1975 by the mayor and council of the City of Tucson to

assist women in attaining full equality of opportunity in all

aspects of life. The Tucson Women’s Commission maintains

that the public policy in the best interest of women is to sup-

port a full range of options, information, and services sO that

every woman has the ability to make her own decision about

when, whether, and under what conditions to bear a child.

The UNION OF AMERICAN HEBREW CONGREGA-

TIONS (‘‘UAHC’’) represents over 1.3 million Reform Jews

and 850 congregations across the United States. The National

Federation of Temple Sisterhoods (‘‘NFTS’’) represents a

network of 100,000 women of Reform Judaism in over 600

local Sisterhoods throughout the United States. The Central

Conference of American Rabbis (‘‘CCAR’’) is the major

body of approximately 1500 Reform rabbis. Throughout the

history of these organizations, they have steadfastly main-

tained the principles of freedom of speech, freedom of reli-

gion and women’s rights, believing that the free exercise of

one’s constitutional rights is essential to the preservation of

American democracy. The UAHC, NFTS and CCAR join

this brief as amici curiae to advocate a woman’s right to be

informed of all of her reproductive options in the case of an

unexpected pregnancy. The governmental coercion or con-

straint of the information given by a reproductive health

worker not only violates the freedom of expression of the

counselor, but also denies millions of poor women the oppor-

tunity to make an educated choice based upon their own per-

sonal religious beliefs and moral guidelines.

UAW/DISTRICT 65 was founded in 1933 among workers

in small dry goods establishments on Manhattan’s Lower

East Side. District 65’s reputation as a front-liner in social

struggle goes back to anti-fascist activities in support of

25a

Republican Spain and continues through the Scottsboro Boys

trial, Selma, Birmingham and Howard Beach.

The UNITARIAN UNIVERSALIST ASSOCIATION is a

voluntary religious association of 1,000 congregations in the

United States and abroad dedicated to the principles of a free

faith, the right to an individual conscience, and to the pro-

motion of the inherent worth and dignity of every person.

The Unitarian Universality Association has long advocated

the right of every woman to decide whether she should bear a

child. It believes that the issue of abortion is morally complex

and thus must be decided by each individual and must remain

a legal option. The Unitarian Universality Association firmly

believes that circumscription or prohibition of the right to

terminate a pregnancy by qualified medical practitioners is an

affront to human life and dignity. In the last two decades,

the Unitarian Universality Association has repeatedly

affirmed its belief that a woman of any age or marital or

economic status has the right to have an abortion upon

medical/social consultation of her own choosing.

The UNITARIAN UNIVERSALIST WOMEN’S FEDER-

ATION (‘‘UUWFP’’) is an independent organization for Uni-

tarian Universalist women that works for a world of justice

and equality in which a// women are respected and their

worth and dignity recognized. The UUWF mission, and its

work, are built on the principles of free faith, the right to an

individual conscience, and the promotion of the inherent

worth and dignity of every person. For more than 15 years,

the UUWF has affirmed the right of any woman of any age

or marital or economic status to gain information and make

her own choices about family planning and to have an abor-

tion at her request upon medical/social consultation of her

choosing.

The UNITED CHURCH BOARD FOR HOMELAND

MINISTRIES, founded in 1957, with roots reaching back to

the anti-slavery movement in 1846, has strongly endorsed a

woman’s right and responsibility to a full range of reproduc-

tive options. The organization has been particularly con-

26a

cerned that poor women have the same range of options as

women who can afford medical care. It, therefore, is dis-

mayed at the possible prohibition of abortion counseling and

referrals in federally-funded clinics.

The UNITED SYNAGOGUE is an association of approxi-

mately 800 congregations in the United States and Canada.

VOICES IN ACTION, INC. is the non-profit international

organization of incest and child sexual abuse survivors and

pro-survivors dedicated to prevention and recovery through

networking support and education.

VOTERS FOR CHOICE is a national, independent, bi-

partisan, and pro-choice political action committee. In order

to preserve access to safe and legal abortion for all women,

Voters For Choice helps to elect pro-choice candidates to fed-

eral and state level public offices.

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

feminist legal advocacy organization dedicated to advancing

the legal and economic status of women. The WLP believes

that the right to reproductive choice is an essential compo-

nent of women’s ability to play an equal role with men in

this society and has engaged in extensive litigation and public

education designed to protect women’s legal right to abor-

tion. Since its founding in 1974, the WLP has challenged in

the courts a wide variety of state statutes designed to restrict

abortion rights, including the Pennsylvania statute invalidated

by this Court in Thornburgh v. American College of Obste-

tricians and Gynecologists, 476 U.S. 747 (1986).

The WOMEN AND AIDS COALITION feels that safe,

legal abortion is absolutely essential in our pluralistic, trou-

bling society. The increasingly compromised immune system

of so many of our citizens, women particularly, demands that

health care providers help to offer the safest medical options

at our disposal.

WOMEN FOR RACIAL AND ECONOMIC EQUALITY

(‘“WREE’’), founded in 1977, is a national organization with

local chapters and members-at-large throughout the United

27a

States. WREE’s program is the Women’s Bill of Rights, a

statement of the demands that will enable women to achieve

equality. The goals of WREE include eliminating discrimina-

tion against women in every area of life and eliminating the

racism in Our society that affects their lives, particularly of

African-American women and other women of color. A key

point in WREE’s Women’s Bill of Rights is ‘‘the right to

reproductive freedom including federally-funded birth control

and abortion upon demand, sex education, and an end to

experimentation and sterilization abuse.’’

The WOMEN-IN-CRISIS COMMITTEE of the Episcopal

Diocese of Massachusetts provides education networking, and

advocacy regarding women’s issues, particularly crisis issues,

and gives grants to secular agencies which serve women in

crisis. The Committee has been active in pro-choice work

since 1983, with particular concern for justice issues such as

public funding.

WOMENSPACE is a non-profit organization that works to

advance opportunities and enhance the well-being of women

in the Greater Cleveland community. WomenSpace reaffirms

its commitment to the right of every woman to determine for

herself the issues of family planning and reproduction.

WOMEN USA is a national organization dedicated to

research, education and activities related to the impact of

ublic policies on the status of women, including such issues

as equal rights, participation and representation in policy-

making, employment and education opportunities, voter reg-

istration, population and family planning services,

environment and development, and other policies, practices

and programs affecting women and girls.

WOMEN’S BAR ASSOCIATION OF _ ILLINOIS

(““WBAI’’) was founded in 1914 for the purpose of promot-

ing and fostering the interests and welfare of women and

women attorneys and to maintain the honor and dignity of

the legal profession. WBAI’s 1000 members have long cam-

paigned for individual rights and liberties, including the right

of women to make reproductive decisions free from govern-

28a

mental interference. WBAI has filed briefs amicus curiae

before this Court on behalf of parties whose rights were in

jeopardy.

The WOMEN’S BAR ASSOCIATION OF MASSACHDU-

SETTS was incorporated and exists for the purpose of pro-

moting and enhancing the interests of women in the legal

community by encouraging professional interaction and

exchange of ideas among its members and between its mem-

bers and other individuals, groups and organizations within

or without the Commonwealth and within or without the

United States, and further for the purpose of promoting and

enhancing the interests of all women by encouraging interac-

tion, education and the exchange of ideas among its members

and between its members without the Commonwealth and

within or without the United States. The Women’s Bar Asso-

ciation states that it is an advocate of the rights of women

under the laws and rules of the Commonwealth and has an

interest in this appeal. There are important policy consider-

ations and social ramifications of any decision regarding this

matter.

WOMEN’S BAR ASSOCIATION OF THE STATE OF

NEW YORK (‘‘WBASNY’’) (which includes: the women’s

bar associations of Bronx County, Brooklyn, Capital District,

Central New York, Mid-Hudson, Nassau, Orange-Sullivan,

Queens, Greater Rochester, Rockland, Staten Island, West-

chester, and Western New York) is an organization of over

3,000 attorneys throughout the state. Founded in 1980, its

stated purposes include the following: to cooperate with, aid

and support organizations and causes which advance the sta-

tus and progress of women in the society; to facilitate the

administration of justice; and to cultivate the science of juris-

prudence. The members of WBASNY support the principles

enunciated in Roe v. Wade, including the recognition of the

constitutionally guaranteed right to privacy.

The WOMEN’S CITY CLUB OF NEW YORK, INC.,

founded in 1916, is a membership organization concerned

with contemporary societal problems and with promoting the

29a

welfare of men, women and children by advocacy of an effi-

cient government and a just legal system. The organization is

concerned about this case because it feels that the principle

established in Roe v. Wade was a step forward in establishing

the freedom of women for domain over their own bodies and

that any step backward is a challenge to that freedom and the

equality of women in our society.

The WOMEN’S EDUCATIONAL CENTER, INC., a non-

profit organization in Cambridge, Massachusetts, exists to

help empower women, particularly victims of abuse, by offer-

ing crisis counseling, referral information, and support

groups. The new Title X restrictions jeopardize the rights of

women to make informed decisions. The proposed restric-

tions not only impinge on a doctor’s obligation to provide

comprehensive information to patients, but also threaten the

very principles of a democratic society. We believe that with-

holding information is a manipulative action which results in

powerlessness and subservience. For these reasons, The

Women’s Educational Center, Inc. is strongly opposed to

these new restrictions.

The WOMEN’S EQUAL RIGHTS LEGAL DEFENSE

AND EDUCATION FUND (‘“‘WERLDEF?’’) is a non-profit

corporation organized to ensure that women are educated

about their rights under the law. WERLDEF supports the

right of women who seek family planning services from Title

X clinics to obtain information and medical care that will

enable them to make an informed decision regarding their

treatment and care. WERLDEF believes that the best deci-

sion is made when a woman is educated about the full range

of choices legally and medically available to her. Because

most of the women who seek family planning services from

Title X clinics live in poor areas, WERLDEF is concerned for

the health and safety of individual women who will turn to

back-alley abortionists or attempt to abort their own fetuses

if they are no longer able to obtain comprehensive and reli-

able health care from Title X clinics.

30a

WOMEN’S HEALTH ACTION AND MOBILIZATION

(‘‘WHAM!””) is a direct action group committed to demand-

ing, securing and defending absolute reproductive freedom

and quality health care for ALL women. Founded in 1989

after the Webster decision, WHAM! coordinates clinic

defense in the New York metropolitan area, and organizes

demonstrations, civil disobedience, workshops, trainings and

educational forums to call attention to and confront a variety

of women’s health issues, including Title X_ restrictions,

parental consent laws, access to drug trials and experimental

treatments for women with AIDS/HIV, and the Catholic

Church’s increased attacks on abortion rights. WHAM!

believes that access to quality health care is a fundamental

human right.

WOMEN’S INTERNATIONAL RESOURCE EXCHANGE

(‘‘WIRE’’) is a small, feminist, non-profit collective that

publishes and distributes material by and about Third World

Women.

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

a tax-exempt non-profit membership organization founded in

1971 to challenge sex-based discrimination and to advocate

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

participate fully and equally with men in society, all women

must have the right to decide for themselves whether and

when to carry their pregnancies to term.

WOMEN’S PROJECT is a community based non-profit

organization committed to the elimination of sexism and rac-

ism. Since 1981, the Women’s Project has assisted women in

organizing around these issues: violence against women, chil-

dren, and people of color; women’s economic issues, espe-

cially those affecting low income women; and social justice

issues.

The WOMEN’S STUDIES PROGRAM at Hunter College,

City University of New York, is composed of some sixty full-

time affiliated faculty members and teaches some 2,000 stu-

dents each year. Most of its students are young single

women, many of them low-income and some who are single

3la

mothers attempting to support their families and to get an

education in order to improve their own and their children’s

lives. Access to safe, reliable reproductive health services is

absolutely essential for these women, who depend on the

availability of abortion counselling and referrals as one part

of the social insurance infrastructure for remaining in school.

It is the strong position of the Women’s Studies Program

that such access is and must remain part of every woman’s

personal and liberty rights. The survival of the Program’s

students and the work it does as educators literally depends

upon it.

The WOMEN’S STUDIES PROGRAM at Smith College is

committed to the education of women and education about

the history, experience and cultural contributions of women

of alleraces, classes, cultures, and ethnic backgrounds. The

history of women has shown us that women cannot be equal

partners in society unless they are assured of the right to full

information about health issues, particularly concerning

reproduction, and the right to make decisions for themselves.

To deny full information about abortion to women seeking

medical help in federally-funded family planning clinics

would mean that full information about personal medical

decisions would become a privilege of the wealthy. It would

mean that the reproductive health and the ability to make

medically informed decisions about private health matters

would be denied to the five million women using federally-

funded family planning clinics each year. The ability to pay

should not determine access to information crucial to one’s

health and the ability to make reasoned choices about diffi-

cult, personal issues.

The WOMEN’S STUDIES PROGRAM at Yale University,

founded in 1979, is an interdisciplinary program which aims

to make gender the center of analysis in academic inquiries.

The Women’s Studies Program believes strongly in women’s

equality and their right to reproductive freedom.

WORKERS WORLD PARTY is a national multi-chapter

organization based in New York City whose members include

32a

working and poor women, youth, lesbians, seniors, disabled,

unemployed and women on fixed incomes. It holds that every

woman must be guaranteed choice, privacy, and access to

and information concerning all aspects of reproductive

health. It believes all women must have access to all proce-

dures and information concerning reproductive matters and

comprehensive health care, including safe, accessible, affor-

dable abortion and birth control. To deny access to all avail-

able procedures and information to any women, especially

the poor, youth and minority women, is discriminatory and

unconstitutional. Every woman has the right to make

informed choices about her life in all matters, including preg-

nancy, one of the most personal issues women face.

WORLDWATCH is a private, non-profit research organi-

zation based in Washington, D.C. The Institute was founded

in 1975 to inform policymakers and the general public about

the interdependence of the world economy and its environ-

mental support systems. Included in its mission is to broaden

the recognition both of access to family planning as a basic

human right and as part of ‘‘sustainable development.”’

The YALE JOURNAL OF LAW AND FEMINISM was

created in the Fall of 1987 to fill a void in feminist theory

and legal scholarship. It hopes that the Journal will inject the

feminist perspective into mainstream legal scholarship and

will bring the legal world and its effects on women’s lives

into the view of a wide-ranging audience. It also wants to

help expose and analyze both issues bearing specifically on

women and the feminist struggle and to look at the world as

a whole through a gender-conscious lens.

The YOUNG WOMEN’S CHRISTIAN ASSOCIATION

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

whose mission is the empowerment of women and the elimi-

nation of racism, strongly supports reproductive freedom of

choice. Because the Department of Health and Human Ser-

vices’ regulations restrict that freedom, and run counter to

First Amendment protection, the YWCA supports the posi-

tion taken in this amicus curiae brief.

33a

ZERO POPULATION GROWTH is a national, nonprofit

organization with over 30,000 members. Founded in 1968, it

is working to achieve a sustainable balance of the earth’s

population, environment and resources. The organization

supports voluntary efforts to stabilize population growth

through education and advocacy programs.

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