Amicus Curiae Brief — Rust v. Sullivan

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE . W220...

INTRODUCTION AND SUMMARY OF ARGU-

COUNTERSTATEMENT OF THE CASE...

The Title X Regulations Apply Only To The

Title X-Funded Program, Not To A Recipient

Organization’s Other Programs And Activities.

Petitioners Distort The Regulations’ Require

. RE Oe Oe Pe

C. The Title X Regulations Do Not Affect The

“Informed Consent Dialogue” About Treatment

SR GE RT

e .

— —— — ů ů ů ů ——

THE TITLE X PROGRAM DOES NOT VIO-

LATE THE FIRST AMENDMENT RIGHTS

OF THOSE WHO CHOOSE TO PARTICI-

PATE IN THE PROG RM

A. The Government’s Title X Funding Deci-

sion Is Subject To Rational Basis Scrutiny

And Meets This Standard .....000

B. Title X Does Not “Discriminate Invidiously”

In A Way That “Aims At The Suppression

C. Petitioners’ Arguments That A Viewpoint

Neutrality” Test Should Be Applied To Gov-

ernment Funding Decisions Are Fundamen-

EET LS ee

D. This Court Has Never Held That Expres-

sion Of Viewpoints Within The Doctor-

Patient Relationship Is Entitled To Special

SRO TLR Se

TABLE OF CONTENTS—Continued

II. THE TITLE X REGULATIONS DO NOT UN-

CO ONALLY RESTRICT OR PE-

N USE OF PRIVATE FUNDS ............

A. The Title X Regulations Permissibly Re

strict Use Of The Matching Funds And

Grant-Related Income That Supplement The

Direct Federal Funding Of 90% Of The

Costs Of Title X Programs .............................

B. Section 59.9, Either Alone Or In Tandem

With Section 59.8, Does Not Impermissibly

Burden Recipient Organizations’ Rights To

Engage In Abortion Activities Outside A

Title X Program; Rather, It Ensures That

Title X Funds Do Not Improperly Subsidize

Such Abortion Activities

0000 —.—7—ç————————

Page

iii

TABLE OF AUTHORITIES

Cases Page

Arkansas Writers’ Project v. Ragland, 481 U.S.

T rr 17

Boos v. Barry, 485 U.S. 312 (1988) 19, 20

Buckley v. Valeo, 424 U.S. 1, 14 (1976) 15

Cammarano v. United States, 358 U.S. 498 (1959) 16

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983)))))))6́ 23

Cornelius v. NAACP Legal Defense & Education

W ee ee 20, 21

Cruzan v. Director, Mo. Dept. of Health, 58

U.S.L.W. 4916 (U.S. June 26, 1990) 23

FCC v. League of Women Voters, 468 U.S. 364

. w ee 25-27

Greer v. Spock, 424 U.S. 828 (1976) ...................... 21

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

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (198177) 20

Lehman v. City of Shaker Heights, 418 U.S. 298

ROS GES SS RE 20, 21

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

Massachusetts v. HHS, 899 F.2d 53 (1st Cir. 1990)

ESS êÄ 0: . 10, 25

Meyer v. Nebraska, 262 U.S. 390 (1923 12-16

Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37 (19833 20, 21

Regan v. Taxation Without Representation, 461

r èê 75755... ĩ passim

Schacht v. United States, 398 U.S. 58 (19700) 19

Speiser v. Randall, 357 U.S. 513 (1958 16, 17

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) 1

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976).. 19

Webster v. Reproductive Health Services, 109 S.

ES Le 19

Widmar v. Vincent, 454 U.S. 263 (198177 20

Wooley v. Maynard, 430 U.S. 705 (1977) 19, 23

TABLE OF AUTHORITIES—Continued

Constitution, Statutes and Regulations Page

ee ee passim

r . cts 3, 22

Title X of the Public Health Services Act, 42

, . passim

r passim

r AT ST CS 10

. a te a 11

. ee oe 11

r istircinitiiinnttaniinnntiiaiasts 11, 28

So .. 11, 28

Cal. Health & Safety Code § 1704.5 (West 1990) 23

N.Y. Pub. Health Law § 2404 (McKinney Supp.

Ee wN ˙ 23

Legislative and Administrative Sources

116 Cong. Rec. 37375 (1970) 5

53 Fed. Reg. 2922-2946 ee eee passim

Miscellaneous

L. Tribe, American Constitutional Lao 13, 22

BRIEF OF THE

AMERICAN ACADEMY OF MEDICAL ETHICS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE'!

The American Academy of Medical Ethics is an educa-

tional and lobbying organization with approximately

20,000 physician members, incorporated to respond to the

challenges to established medical ethics emerging in re-

cent decades. The Academy adheres to the Hippocratic

Oath in opposing abortion except to save the life of the

mother. The Academy has previously pursued its inter-

ests before this Court through participation as amicus

curiae in cases including Webster v. Reproductive Health

Services (No. 88-605), Turnock v. Ragsdale (Nos.

88-790, 88-1309), and Cruzan v. Director, Mo. Dept. of

Health (No. 88-1503).

The Academy addresses this Brief to the First Amend-

ment claims made by Petitioners. The Academy submits

this Brief in support of Respondent and asks the Court

to affirm the decision of the United States Court of

Appeals for the Second Circuit.

INTRODUCTION AND SUMMARY OF ARGUMENT

“This Court’s abortion decisions have already worked

a major distortion in the Court’s constitutional juris-

prudence. ... [N]Jo legal rule or doctrine is safe

from ad hoc nullification by this Court when an oc-

casion for its application arises in a case involving

. .. abortion.” Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747, 814

(1986) (O’Connor, J., dissenting).

In this case, Petitioners seek to distort this Court’s

First Amendment jurisprudence in furtherance of a

policy favoring abortion. In concocting a First Amend-

1This Brief Amicus Curiae is filed with the consent of all par-

ties to this proceeding. A letter from each attorney stating this

consent has been filed with the Clerk of this Court.

ment challenge to regulations (under Title X of the Pub-

lie Health Services Act, 42 U.S.C. § 300 et seg.) that

implement Congress’ decision to subsidize preventive

family planning but not abortion, Petitioners adopt a

twofold stratagem. First, they obscure and mischarac-

terize the Title X program and the regulations at issue.

Second, they selectively cite and quote cases from various

First Amendment contexts that are inapposite—e.g., out-

right prohibitions or penalties on speech, taxation of the

press, regulation of public forums. At the same time,

they ignore controlling precedent that acknowledges the

government’s ability to choose when and how it will sub-

sidize citizens’ exercise of their constitutional rights.

Petitioners’ tactics should not be allowed to distort either

the nature of the Title X regulations or settled First

Amendment jurisprudence.

The Title X regulations challenged by Petitioners do

not infringe their First Amendment rights. The regula-

tions apply only to the Title X program and are designed

to ensure that recipient organizations do not thwart the

purposes of Title X by using Title X funds to subsidize

their non-Title X abortion services. With respect to

recipient organizations’ activities outside the Title X

program, the Title X regulations place no restrictions on

abortion counseling, referral, advocacy or activities of

any nature whatsoever, including performance of abor-

tions. In short, the Title X regulations do not bar pro-

abortion speech by Petitioners; rather, they merely refuse

to subsidize it.

Petitioners’ distortions of First Amendment juris-

prudence are an effort to establish that Title X must be

“viewpoint neutral”. Petitioners therefore ignore the

holdings of Maher v. Roe, 432 U.S. 464 (1977), and

Harris v. McRae, 448 U.S. 297 (1980), and misconstrue

Regan v. Taxation Without Representation, 461 U.S. 540

(1983). These cases establish that government may en-

courage citizens to exercise their constitutional rights,

including their First Amendment rights, in a particular

way so long as it does not directly interfere with those

rights. Maher and Harris establish specifically that gov-

ernment may validly promote childbirth over abortion.

Instead of addressing these cases, Petitioners rely heavily

on cases that involve outright bans on speech. Petitioners

also rely heavily on cases applying a public forum anal-

ysis, but they do not even attempt to defend their as-

sumption that the Title X program is in any sense a

“forum” for speech. Title X plainly was not designed

to provide an opportunity for citizens to debate the issue

of abortion; it is a vehicle for the government to provide

what it deems to be appropriate family planning services.

Most importantly, Petitioners’ proposed regime of

“viewpoint neutrality” would transform government as

we know it and could be used to subvert the policy goals

of nearly any government program. When the govern-

ment subsidizes an anti-smoking campaign, must it also

subsidize a pro-smoking campaign by cigarette manufac-

turers? When government funds programs designed to

discourage drug use, must it also fund groups that ad-

vocate legalization of drugs? May it not, for example,

limit drug treatment referrals to programs that do not

use methadone? When Congress establishes a National

Endowment for Democracy, 22 U.S.C. § 4411 et seq.,

need it also establish a National Endowment for Com-

munism or a National Endowment for Fascism?

Petitioners’ revolutionary theory of viewpoint neu-

trality in government-funded programs would transform

Title X into a reproductive Tower of Babel. If subsidiza-

tion of “pro-choice” advocacy is constitutionally required,

then certainly “pro-life” advocacy cannot be precluded

from the program (as it now is). The regulations could

not require that each project provide a broad range of

family planning methods, 42 C. F. R. § 59.5 (a) (1), be-

cause that would discriminate against the viewpoint of

those who oppose artificial methods of birth control.’

2 The government noted in its brief below a United States Cath-

olic Conference comment on the proposed rules stating that Cath-

Those who oppose any form of birth control could demand

subsidy for a program that discourages contraceptive use.

If subsidization of abortion counseling is constitutionally

required, a grant applicant could argue that a full range

of prenatal counseling and adoption counseling (perhaps

extending until delivery) must be funded as part of the

program. Under Petitioners’ theories each of these situa-

tions would require a constitutional analysis under the

First Amendment. Whether any government-funded

family planning program could survive such regulatory

restructuring and litigative machinations is questionable.

Nor do Title X regulations unconstitutionally restrict

or penalize use of private funds for speech. The Title X

regulations apply only to the Title X program, not to all

the activities of the recipient organization: the organiza-

tion remains free to use private funds to counsel or ad-

vocate respecting abortion outside the Title X program.

Within the Title X program, the up-to-10% matching

funds and grant-generated income that the recipient

organization agrees to dedicate to the Title X program

are effectively “public moneys” under Regan. Outside

the Title X program, Petitioners’ real complaint is that

the Title X regulations properly prevent them from using

Title X funds to cross-subsidize their non-Title X abor-

tion activities and to solicit clients for their non-Title X

abortion services.

COUNTERSTATEMENT OF THE CASE

Petitioners sow confusion about Title X and then at-

tempt to exploit this confusion. In particular, four major

distortions about Title X programs afflict their briefs.

First and most generally, Petitioners blur the clear distine-

tion between a Title X program and a recipient organ-

ization’s other programs and activities. Second, in argu-

olic organizations cannot become grantees “because of the statutory

requirement that all grantees must provide a full range of contra-

ceptive family planning.” Brief for the Appellee at 54 n.41, New

York v. Sullivan, 889 F.2d 401 (2d Cir. 1989) (Nos. 88-6204 and

88-6206) . oo

ing that Title X impermissibly subsidizes childbirth over

abortion, Petitioners mischaracterize the regulations’ re-

quirements. Third, Petitioners wrongly invoke the doc-

trine of informed consent by assuming that Title X

counseling employees, rather than the non-Title X physi-

cian treating the woman’s pregnancy, are responsible for

ensuring informed consent for pregnancy treatment.

Fourth, they garble the components of Title X funding

in order to deny its essentially public nature.

A. The Title X Regulations Apply Only To The Title

X-Funded Program, Not To A Recipient Organiza-

tion’s Other Programs And Activities.

Title X is a spending program under which the federal

government exercises its constitutional power to provide

services related to preventive family planning and not

services related to abortion. In enacting Title X, Con-

gress specifically provided that “[n]one of the funds ap-

propriated under [Title X] shall be used in programs

where abortion is a method of family planning.” 42

U.S.C. § 300a-6. This statutory exclusion means that

“abortion is not to be encouraged or promoted in any

way” by Title X. 116 Cong. Rec. 37375 (Nov. 16, 1979).

The Title X regulations draw a clear line between the

funded Title X program and a recipient organization’s

other programs and activities. The Title X regulations

apply only to the Title X program. 42 C. F. R. §§ 59.1,

59.2. They

do not restriet the use of funds outside the Title X

program or impose restrietions on funds provided

under other federal programs. Nor do they prevent

a woman from seeking and obtaining an abortion

outside the Title X program. They thus make no

attempt to establish abortion restrictions beyond the

parameters of a Title X project.

53 Fed. Reg. at 2925. Thus, outside the funded Title X

program, the Title X regulations place no restrictions on

the rights of recipient organizations, to engage in pro-

abortion counseling, referral, advocacy, or activities of

any nature, including performance of abortions.

Petitioners *—especially the Rust Petitioners attempt

to blur this clear line between a recipient organization’s

Title X program and its other provvams and activities

in an apparent attempt to exaggerate the impact of the

Title X regulations. For example, they confusingly em-

ploy such terms as “Title X clinics,” “Title X agencies”

and “clinics’—sometimes apparently referring to the

Title X program and sometimes to the recipient organiza-

tion as a whole, depending on which suits their purposes.‘

Likewise, they sometimes use the term “non-Title X

sources” to refer to the matching funds and grant-related

income that are part of Title X, and other times use the

same term to refer to funds outside the scope of Title X.°

Nowhere do they clearly acknowledge that the Title X

regulations impose no restrictions on recipient organiza-

tions’ non-Title X programs and activities.

B. Petitioners Distort The Regulations’ Requirements.

In attempting to support their contention that the

Title X regulations impermissibly subsidize speech about

childbirth over speech about abortion, Petitioners mis-

The Brief for Petitioners in Rust v. Sullivan (No. 89-1391)

is cited herein as “Rust Brief at The Brief for Petitioners

in New York v. Sullivan (No. 89-1392) is cited herein as “State

Brief at a

* See, e.g., Rust Brief at 3 n. 5 (“only 33% of Title X agencies

reported that Title X grants were their mean largest single source

of support”); id. at 4 (listing medical services, including “abor-

tion services,” provided by “Title X clinics”); id. at 23 (alleging

that Title X regulations set “trap” for patients at a “Title X

clinic”) ; id. at 28-29 (discussing facilities and resources of “Title

X clinics”); id. at 30 (regulations do not permit “staff at the

Title X clinic” to advise of abortion services).

> Compare, e.g., Rust Brief at 12 (referring to “such non-Title

X sources [sic] as matching funds, patient fees, and oth reim-

bursements or monies”), with id. at 27 n. 47 (referring to funding

of abortion counseling by “non-Title X sources” such as Title V

of the Social Security Act).

characterize the specific regulations that they challenge

in a variety of ways.

Petitioners contend that Section 59.8 “suppress [es]

speech about abortion and compel(s] speech about child-

birth.” State Brief at 32. This extravagant rhetoric is

off the mark. In the first place, the Title X regulations

govern merely what Title X subsidizes; they do not sup-

press any speech about abortion. Nor do they require

that Title X programs express any “anti-abortion ideol-

ogy.” State Brief at 32. Petitioners seize on and distort

an example in the Title X regulations that provides that

a project counselor permissibly responds to a request for

an abortion referral by stating that “the project does not

consider abortion an appropriate method of family plan-

ning and therefore does not counsel or refer for abor-

tion.” 42 C. F. R. § 59.8 (b) (5). Contrary to Petivioners’

contention (Rust Brief at 7; State Brief at 5-6, 33),

this response is not mandatory but is rather merely an

illustration of a permissible response. Moreover, the

statement that abortion is not... appropriate” sim-

ply delineates the scope of the Title X program. As is

clear from the regulations, the counselor need only re-

frain from counseling about or referring for abortion,

and need not express any anti-abortion ideology.

Likewise, Petitioners’ claim that Section 59.8 compels

speech about “childbirth” (State Brief at 32) and “com-

pel[s] the clinic or counselor to provide information that

promotes continuing a pregnancy to term” (Rust Brief

at 11) is grossly overstated. Section 59.8(a)(2) pro-

vides merely for transitional counseling and referral for

clients diagnosed as pregnant, just as Title X regulations

provide for appropriate referrals for other medical condi-

tions. 42 C. F. R. § 59.5 (b) (1); 53 Fed. Reg. at 2937.

The referral list of appropriate prenatal care providers

may include providers who also perform abortions. 42

C. F. R. § 59.8 (a) (3).“ Provision of basic health informa-

6 Petitioners contend that the referral list “must include pro-

viders who do not perform abortions—-regardless of their medical

tion (for example, that alcohol consumption poses risks

to the fetus) as part of the referral operates to preserve

a pregnant woman’s options until such time as she con-

sults with a treating physician concerning her pregnancy.

Absent this transitional counseling and referral, a preg-

nant woman might discover at the time of such con-

sultation that she had unknowingly taken actions that

risked the health of her unborn child, and might feel

compelled to abort a child that she would otherwise have

welcomed. With the benefit of this transitional counsel-

ing and referral, the woman retains the option, after

consulting with a treating physician, to choose between

carrying and aborting her child.

Petitioners also mischaracterize Section 59.9. Section

59.9 requires that a Title X program “have an objective

integrity and independence from” a recipient organiza-

tion’s pro-abortion activities. 42 C.F.R. § 59.9. As dis-

cussed below (infra at 29), this regulation is properly

designed to ensure that Title X funds are not used to

subsidize abortion services. Section 59.9 does not require

“complete,” “wholesale” physical and financial separa-

tion. State Brief at 6; Rust Brief at 5. Rather, Section

59.9 contemplates a comprehensive multi-factored anal-

ysis of degrees of separateness in order to determine

whether the Title X program has objective integrity and

independence.

Finally, Section 59.10 prohibits use of Title X funds

for pro-abortion advocacy, litigation and lobbying. This

prohibition reflects the fact that Title X is a government

program that provides services, not a forum for speakers.

qualifications.” State Brief at 5. This contention has no basis in

the regulations and is rebutted by the very authority cited in pur-

ported support: if a provider is not medically qualified, it is

not an available provider” of appropriate“ services. 42 C. F. R.

§ 59.8 (a) (3). Nor is referral of a woman for prenatal care done

“regardless of her medical circumstances,” as Petitioners also al-

lege. State Brief at 33. Section 59.8 provides for emergency re-

ferrals for abortion in the case of an ectopic pregnancy or other

life-threatening condition.

As the Secretary has made clear, Title X funds also may

not be used for anti-abortion advocacy, litigation and

lobbying. E. g., Brief for the Appellee at 57 n.43, New

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

88-6204 and 88-6206). Section 59.10 expressly addresses

pro-abortion activities in order to confront the abuses

that actually have been encountered. See 53 Fed. Reg.

at 2923-25.

C. The Title X Regulations Do Not Affect The “Informed

Consent Dialogue” About Treatment Of Pregnancy.

Petitioners complain that the Title X regulations dis-

rupt a supposed “informed consent dialogue” between a

Title X employee and a pregnant client by excluding dis-

cussion of abortion. State Brief at 37, 39. Petitioners’

complaint is illusory. As Title X does not provide medi-

cal treatment for pregnancy, the responsibility for en-

suring informed consent for any subsequent treatment

lies not with Title X employees, but with the non-Title X

physician who treats the woman’s pregnancy.’ Title X

employees neither can nor should obtain a pregnant

client’s consent to non-Title X medical treatment. In

short, the informed consent dialogue about medical treat-

ment of pregnancy takes place outside the Title X pro-

gram, and the Title X regulations do not affect or restrict

it in any way. (For further discussion of this point, see

Brief Of The Association Of American Physicians And

Surgeons As Amicus Curiae In Support Of Respondent,

Section IV (hereinafter cited as AAPS Amicus Brief)).

D. Petitioners Misrepresent The Nature Of Funding Of

Title X Programs.

As discussed below (infra at 26-28), Title X funding

is essentially public in nature. As part of their effort to

obscure this fact, Petitioners’ briefs create confusion

7 Conversely, in connection with the provision of contraceptive

services, the Title X regulations do permit factual information

about abortion that enables the client to assess the relative

risks and benefits of various contraceptive methods. 42 U.S.C.

§ 59.8 (b) (6); 53 Fed. Reg. at 2932.

about the funding of Title X programs—a confusion that

is also reflected in the First Circuit majority’s opinion

in Massachusetts v. HHS, 899 F.2d 53 (Ist Cir. 1990)

(en banc). For example, Petitioners use the phrase “non-

Title X funds” to refer to the matching funds and grant-

related income dedicated to the Title X program. E. g.,

Rust Brief at 25. Likewise, by comparing the amount of

Title X grant funds to the overall operating budget of

recipient organizations (including their non-Title X pro-

grams and activities), Petitioners leave the false impres-

‘ion that Title X grant funds account for far less than

„ of the costs of the Title X programs. See, e.g., Rust

Brier at 3 n.5; State Brief at 42 & n.44. Accordingly,

it is necessary to review precisely what Title X and its

regulations provide regarding funding.

Section 59.2 of the Title X regulations defines Title X

project funds to “include all funds allocated to the Title

X program, including but not limited to grant funds,

grant-related income or matching funds.” 42 C. F. R.

§ 59.2. This definition is designed to ensure that no

funds allocated to a Title X program are used to pro-

mote abortion, because provision of Title X grant funds

to such a program would violate 42 U.S.C. § 300a-6.

See 53 Fed. Reg. at 2927.

“Grant funds” are funds appropriated by the federal

government under Title X. Under 42 U.S.C. § 300a-4(a),

grants generally must be for at least 90% of a program’s

estimated costs.“ See 42 C. F. R. §59.11(b) (grant gen-

erally must be made for not less than 90 percent of the

»The State Petitioners somehow read this same Section 300a-

4(a) as providing a 90% ceiling on the federal grant fund share

of the Title X program costs, when it in fact provides a floor.

See State Brief at 42. Likewise, the First Circuit majority mis-

read this same statutory section in support of its mistaken asser-

tion that Title X projects “are required to provide nonfederal

‘matching funds’ of at least 10%” of the costs. Massachusetts v.

HHS, 899 F.2d at 55 (emphasis added).

Title X project’s costs,” as estimated by the Secretary).

Thus, other sources of Title X program funds will ac-

count for no more than 10% of the program costs.

“Matching funds” are funds that the grantee agrees

to dedicate to the Title X program. General HHS regu-

lations, 45 C. F. R. § 74.50 et seqg., govern these matching

funds. See 42 C.F.R. § 59.215. When the terms of the

grant permit, the matching fund share can be satisfied

by grant-related income generated by the Title X project.

45 C. F. R. § 74.53 (e).

Grant- related income,” as defined by general HHS

regulations, includes income received from activities

“part or all of the cost of which” is funded by a fed-

eral grant, including “income in the form of fees for

services performed” during the grant period. 45 C. F. R.

§ 74.41(a); see 42 C.F.R. § 59.215. Thus, income gen-

erated by the Title X project, including fees paid by Title

X clients, constitutes grant-related income. Unless the

terms of the grant otherwise provide, grant-related in-

come must be used to offset the allowable costs of the

program (just as gross income normally offsets gross

costs). 45 C. F. R. § 74.42 (e) (1).“ Alternatively, if the

terms of the grant permit, grant- related income can

count towards a matching requirement, 45 C. F. R.

§ 74.42(d), or can be used to expand the program beyond

allowable costs, id. § 74.42(e).

o Thus, if a program incurs $100,000 of gross allowable costs,

generates $10,000 in grant-related income, and has a 90% federal

funding share and a 10% matching requirement, the $10,000 in

income is deducted from the $100,000 of costs to determine net

costs of $90,000. The 90% federal funding share applies to this

$90,000 net figure (not the $100,000 gross figure), so that the fed-

eral funding share is $81,000 (not $90,000). 45 C. F. R. § 74.42

ARGUMENT

I. THE TITLE X PROGRAM DOES NOT VIOLATE

THE FIRST AMENDMENT RIGHTS OF THOSE

WHO CHOOSE TO PARTICIPATE IN THE PRO-

GRAM.

A. The Government’s Title X Funding Decision Is

Subject To Rational Basis Scrutiny And Meets This

Standard.

Petitioners’ briefs ignore the holdings of Maher v. Roe,

432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297

(1980)."° But those precedents are central to the proper

analysis of the First Amendment issues in this case.

Petitioners have taken arguments made under the Four-

teenth Amendment in Maher and Harris (arguments

that did not succeed in those cases) and have restated

them as First Amendment arguments. Petitioners fail

to recognize, however, that the principle of Maher and

Harris—that government may encourage citizens to exer-

cise their rights and freedoms in a particular way so

long as it does not directly interfere with protected ac-

tivity—applies with equal force to First Amendment ac-

tivity. Maher’s rationale in fact is based on earlier

authority implicating free speech rights, Meyer v. Ne-

braska, 262 U.S. 390 (1923), and subsequent Supreme

Court authority adopts Maher’s analysis in upholding

a government decision not to subsidize certain speech,

Regan v. Taxation Without Representation, 461 U.S.

540 (1983).

In Maher, the Court addressed a challenge to a Con-

necticut regulation limiting Medicaid benefits for first

trimester abortions to those that are medically necessary,

even though the program subsidized medical expenses

incident to pregnancy and childbirth. The regulation was

challenged under the Equal Protection Clause of the

Fourteenth Amendment on the ground that it allegedly

Indeed, the Rust Brief cites Maher and Harris only once in

passing. Rust Brief at 35.

impinged upon a fundamental right—the right to abor-

tion—protected by the Constitution. In rejecting the

challenge, this Court emphasized “a basic difference be-

tween direct state interference with a protected activity

and state encouragement of an alternative activity con-

sonant with legislative policy.” 432 U.S. at 475.

The Maher Court derived this principle in part from

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

Meyer struck down a state law making it a criminal

offense to teach foreign languages to young children, the

Court in Maher recognized that Meyer did not den [y]

to a State the policy choice of encouraging the [State’s]

preferred course of action.” Maher, 432 U.S. at 476-477.

Indeed, in Meyer the Court was careful to state that

the power of the State “to prescribe a curriculum”

that included English and excluded German in its

free public schools “is not questioned.” 262 U.S.

at 402.

Maher, 432 U.S. at 477. The teaching of foreign lan-

guages penalized by state law in Meyer is speech pro-

tected by the First Amendment.“ Yet in Maher this

Court did not hesitate to draw from Meyer the principle

that government encouragement of one course of action

over another, constitutionally protected course of action

is permissible. Harris v. McRae confirms this principle.

“Whether freedom of choice that is constitutionally pro-

tected warrants federal subsidization is a question for

Congress to answer, not a matter of constitutional en-

titlement.” Harris, 448 U.S. at 318. Whether the pro-

tected activity is speech about abortion or a woman’s

right to obtain an abortion, the constitutional analysis

is the same: The government’s aecision to encourage one

course of action over another constitutionally protected

course of action need only have a rational basis. Maher,

432 U.S. at 478.

11 See L. Tribe, American Constitutional Law 789 (2d ed. 1988)

(citing Meyer as a case of government abridgment of speech).

Regan v. Taxation Without Representation, 461 U.S.

540 (1983), confirms the applicability of the Maher anal-

ysis to government decisions not to subsidize some forms

of speech. Regan rejected a First Amendment challenge

to Internal Revenue Code provisions which disqualify an

organization from receiving tax-deductible contributions

if the organization engages in substantial lobbying.

Regan expressly drew upon the principles of Maher and

Harris in rejecting the argument that strict scrutiny

should be applied to these tax provisions:

We have held in several contexts that a legislature’s

decision not to subsidize the exercise of a funda-

mental right does not infringe the right, and thus

is not subject to strict scrutiny.... Harris v.

McRae, supra, and Maher v. Roe, 432 U.S. 464

(1977), considered legislative decisions not to sub-

sidize abortions, even though other medical proce-

dures were subsidized. We declined to apply strict

scrutiny and rejected equal protection challenges to

the statutes.

The reasoning of these decisions is simple: “al-

though government may not place obstacles in the

path of a [person’s] exercise of.. . freedom of

[speech], it need not remove those not of its own

creation.” Harris, 448 U.S. at 316.

Regan, 461 U.S. at 549-550 (bracketed phrases in orig-

inal). Regan therefore applied a rational basis test to

the government’s decision to subsidize some speech but

not other speech. Id.

Under the analysis settled by Meyer, Maher, Harris

and Regan, the regulations at issue here permissibly en-

courage by subsidy some forms of speech over others but

do not prohibit or interfere with speech. Petitioners ob-

ject to provisions of the regulations prohibiting Title X

programs from “counseling concerning the use of abor-

tion,” 42 C.F.R. § 59.8(a) (1); encouraging, promoting,

or advocating abortion, id. § 59.10(a); and “assist[ing]

women to obtain abortions or increas[ing] the availabil-

ity or accessibility of abortion,” id. Rust Brief at 15.

But all of these are restrictions on subsidized counseling

and advocacy in a federal program, not general restric-

— —

—

tions on speech. Just as the government may fix the cur-

riculum. in publicly funded schools so long as it does not

prohibit subjects from being taught outside those schools,

Maher, 432 U.S. 476-477 (discussing Meyer), the govern-

ment may specify the scope of counseling services in the

Title X program. Similarly, “Congress could, for exam-

ple, grant funds to an organization dedicated to combat-

ing teenage drug abuse, but condition the grant by pro-

viding that none of the money received from Congress

should be used to lobby state legislatures.” Regan, 461

U.S. at 548. There is no constitutional distinction be-

tween imposing a condition that funds not be used to

lobby and imposing a condition that funds not be used to

counsel concerning abortion or to advocate abortion.”

Although the Maher Court recognized that the govern-

ment’s refusal to fund abortions “may [make] childbirth

a more attractive alternative, thereby influencing the

woman’s decision,” it nonetheless subjected the funding

program only to rational basis scrutiny because the gov-

ernment imposed “no restriction on access to abortions

that was not already there.” 432 U.S. at 474. It follows

that even if the government’s refusal to fund abortion

counseling means that information concerning childbirth

is more readily available than information concerning

abortion,’* the government’s funding decision also is sub-

12 Indeed, lobbying is a form of political speech and as such is

entitled to the highest degree of First Amendment protection.

“The First Amendment affords the broadest protection to political

expression in order ‘to assure [the] unfettered interchange of

ideas for the bringing about of political and social changes desired

by the peeple.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976) (citation

omitted)

1 Because Title X is limited to pre-conceptional services, 42

C. F. R. § 59.2 (definition of “family planning“), the program does

not furnish services related to childbirth. Only in the context of

a referral out of the Title X program is a pregnant woman given

transitional information designed to preserve her options until

she seeks further medical help. Id. §59.8(a)(2). See supra at

7-8. Thus, the Title X program furnishes information concerning

childbirth only in a very indirect and limited way.

ject only to rational basis scrutiny because it places no

restriction on access to abortion information outside the

Title X program.

Maher and Harris further establish that a government

decision to encourage childbirth over abortion is ration-

ally related to a constitutionally permissible purpose.

Maher held that the “State unquestionably has a ‘strong

and legitimate interest in encouraging normal child-

birth,’ . . . an interest honored over the centuries.” 432

U.S. at 478 (citation omitted). Harris, following Maher,

made it unmistakably clear that government may single

out abortion as a medical procedure it will not encour-

age: “Abortion is inherently different from other medi-

cal procedures, because no other procedure involves the

purposeful termination of a potential life.” 448 U.S. at

325. The federal government’s decision not to fund abor-

tion information services (as well as abortions them-

selves) rationally promotes the government’s interest in

encouraging childbirth over abortion.

B. Title X Does Not “Discriminate Invidiously” In A

Way That “Aims At The Suppression Of Dangerous

Ideas”.

While pointedly ignoring the principles articulated in

Meyer, Maher, Harris and Regan, Petitioners quote out

of context, and make the centerpiece of their argument,

language from Regan that actually is directed toward

the very different situation where government seeks to

suppress certain ideas by, for example, denying a citizen

a generally available independent benefit because of his

speech.

In concluding that “Congress has not violated TWR’s

First Amendment rights by declining to subsidize its

First Amendment [lobbying] activities,’ Regan notes

that “[t]he case would be different if Congress were to

discriminate invidiously in its subsidies in such a way

as to ‘“ai[m] at the suppression of dangerous ideas.“

Regan, 461 U.S. at 548 (quoting Cammarano v. United

States, 358 U.S. at 498, 513 (1959), in turn quoting

Speiser v. Randall, 357 U.S. 513, 519 (1958)). This

“invidious discrimination” language from Regan does not

bar mere decisions to subsidize one viewpoint and not

another. If it did, Maher and Harris would have to be

overruled because they permit government to support one

constitutionally protected choice and not another. Far

from overruling Maher and Harris, Regan draws its

rationale from them. See 461 U.S. at 549-50.

The “invidious discrimination” language on which

Petitioners rely is aimed at a much more aggressive

government action, as the very words “suppression” and

“dangerous ideas” themselves suggest. Regan draws the

“suppression of dangerous ideas” phrase from Speiser v.

Randall, 357 U.S. 518. (1958), which struck down a Cali-

fornia law that generally denied all tax exemptions to

persons who refused to provide an oath of loyalty.

Regan explains that the rule of Speiser is limited to

situations where government seeks to deny a citizen an

“independent benefit” because of the citizen’s exercise of

a constitutionally protected right, but does not apply

where “Congress has merely refused to pay” for the con-

stitutionally protected activity “out of public moneys.”

461 U.S. at 545. Here, as in Regan, Congress merely has

refused to pay for abortion counseling out of public

monies.

Title X has no coercive effect on private speech, as

defined in Speiser and Regan. The law at issue in

The Rust Brief cites Arkansas Writers’ Project v. Ragland

481 U.S. 221 (1987), as support for Petitioners’ assertion that

viewpoint neutrality is required in government-funded programs.

But Arkansas Writers’ Project was decided on the basis of prin-

ciples concerning taxation of the press—principles that are simply

inapplicable to government-funded programs. Arkansas Writers’

Project struck down on First Amendment grounds a state sales

tax that applied to all magazines except religious, professional,

trade and sports journals. 481 U.S. at 224. The principle gov-

erning the decision is that “selective taxation of the press—either

singling out the press as a whole or targeting individual members

of the press—poses a particular danger of abuse by the State.” Id.

at 228. Thus the rationale of the case is explicitly limited to

situations involving taxation of the press.

Speiser, which denied tax exemptions generally, neces-

sarily [had] the effect of coercing the claimants to re-

frain from the proscribed speech.” 357 U.S. at 519. The

Title X program, by contrast, leaves agencies that seek

to counsel concerning abortion or to promote abortion

free to do so outside of Title X. Such agencies also do

not lose the opportunity to participate in the Title X

program by virtue of any pro-abortion activities they

engage in outside the program.

Moreover, Regan’s caveat is directed at “invidious”

discrimination in subsidies. A government preference for

childbirth over abortion is in no sense invidious dis-

crimination. Maher validated government’s right to

“make a value judgment favoring childbirth over abor-

tion,” 482 U.S. at 474 (citation omitted), and Harris

recognized that abortion is a unique medical procedure

because of its “purposeful termination of a potential

life.” 448 U.S. at 325. In light of these precedents, a

subsidy that favors childbirth over abortion cannot be

said to create a “suspect” or “invidious” classification.

Finally, Title X does not implement the government’s

preference for childbirth in a way that threatens to

suppress discussion of abortion. Both anti-abortion and

pro-abortion advocacy, litigation and lobbying with Title

X funds is forbidden. See supra at 8-9. It is only in

the requirements for transitional referrals out of the

Title X program after a woman becomes pregnant that

the regulations even arguably can be said to favor child-

birth over abortion. The very limited amount of infor-

mation that is furnished about prenatal care in the con-

text of that referral hardly can be said to tip the scales

so far in favor of childbirth as to constitute “suppres-

sion” of the idea of abortion. Similarly, the fact that the

government refrains from providing referrals for the sole

purpose of abortion’® does not suppress information

16 The regulations allow referrals to health care providers that

provide prenatal care and also provide abortions. 42 C.F.R.

§ 59.8 (b) (4).

about abortion. The private sector functions vigorously

in furnishing abortion information and services, as a

glance at almost any yellow pages will reveal.“

C. Petitioners’ Arguments That A “Viewpoint Neu-

trality” Test Should Be Applied to Government

Funding Decisions Are Fundamentally Unsound.

As discussed above, Regan in no way requires that

government funding decisions be neutral as between com-

peting policy viewpoints. Petitioners, however, seek sup-

port for a proposed regime of viewpoint neutrality by

selective quotation and citation of cases dealing with pub-

lie forum doctrine, often without identifying them as

public forum cases.'’ But Petitioners do not even attempt

to address the fundamental issue of whether a Title X

program is in any sense a “forum” for speech.

1% The Rust Brief refers to the views of commentators that

express concern over government expression that “approaches

monopolization of the marketplace of ideas.” Rust Brief at 24

n.39. The only support cited from the cases of this Court is

footnote 8 in Webster v. Reproductive Health Services, 109 S. Ct.

3040, 3052 (1989), where the Court notes that a ban on use of

state facilities to perform abortions might call for a “different

analysis” if a particular State had socialized medicine and all of

its hospitals and physicians were publicly funded.” It is ludicrous

to suggest that the Title X program creates a monopoly on in-

formation about abortion when the program is designed precisely

to have nothing to do with abortion. There is no contention that

abortions are not available in the private sector. Abortion pro-

viders also make abortion information readily available.

17 Petitioners likewise improperly rely on cases involving out-

right bans or penalties on speech. For example, Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) (cited in Rust Brief at 9 n.29), involved a

ban on drug advertising. Schacht v. United States, 398 U.S. 58

(1970) (cited in Rust Brief at 18 n.28), overturned a law making

it a crime for an actor to wear a military uniform in a play if the

role was critical of the military. Boos v. Barry, 485 U.S. 312

(1988) (cited in Rust Brief at 18), involved criminal sanctions

for picketing outside an embassy. Wooley v. Maynard, 430 U.S.

705 (1977) (cited in Rust Brief at 14 and State Brief at 34),

overturned a criminal conviction of a person who expressed himself

by covering the New Hampshire state motto on his license plate.

The Title X program is not a forum“ for speech, pub-

lic, nonpublic or otherwise. First, public forum analysis

applies only where a speaker seeks access to government’s

real or physical property.“ [A] speaker must sec ac-

cess to public property or to private property dedicated

to public use to evoke First Amendment concerns” in the

context of public forum analysis. Cornelius v. NAACP

Legal Defense & Education Fund, Inc., 473 U.S. 788, 801

(1985) (charitable solicitation in federal workplace).

Thus, public forum analysis deals with the allocation of

situses under government control. Petitioners here do not

seek access to physical property belonging to or used by

the government. Rather, they seek a monetary grant or

subsidy. The public forum cases do not purport to ad-

dress issues of access to government subsidies or pro-

grams; those issues are addressed by Maher, Harris and

Regan, as discussed above.

Second, public forum analysis applies only in those

situations where the government has tolerated or created

a channel for expressive activity to function separate

from, and without the imprimatur of, the voice of the

government itself. Each tyne of forum recognized by the

Court is characterized by debate and communication of

ideas that are the speakers’ own, by voices that are not

identified with the government.“

18 See, e.g., Boos v. Barry, 485 U.S. 312 (1988) (streets or side-

walks); Heffron v. Int'l Soc’y for Krishna Consciousness, Inc., 452

U.S. 640 (1981) (state fair); Widmar v. Vincent, 454 U.S. 263

(1981) (state university meeting facilities); Perry Education

Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 (1983) (in-

ternal mail system within a public school); Lehman v. City of

Shaker Heights, 418 U.S. 298 (1974) (advertising spaces on city-

owned buses).

A “quintessential public forum” is one that has “by long tra-

dition or by government fiat . . . been devoted to assembly and

debate.” Perry Education Ass'n, 460 U.S. at 45. A limited public

forum is created “by government designation of a place or channel

of communication for use by certain speakers, or for the dis-

cussion of certain subjects.” Cornelius, 473 U.S. at 802. In those

cases where this Court has recognized a nonpublic forum, the gov-

ernment had created a system of communication for persons who

By contrast, the Title X program was not designed to

facilitate communication of the ideas of persons who do

not speak for the government. It is not designed as a

channel for expressive activity, but rather as a program

to provide “family planning methods and services.“

42 U.S.C. §300(a). And it is not designed to accom-

modate expression of a non-government persons’ views on

family planning generally (e.g., whether artificial con-

traceptives are or are not appropriate or whether abor-

tion is or is not an appropriate method of family plan-

ning). Rather, it is a government program for delivery

of services that the government has decided are appro-

priate. The “forum” for debate of the government’s pol-

icy choices was the Congress. “Whether freedom of

choice that is constitutionally protected warrants federal

subsidization is a question for Congress to answer... .”

Harris, 448 U.S. at 318.

Petitioners’ proposal that federal programs be view-

point neutral is so extreme that even they cannot apply

it consistently. Petitioners themselves concede that some

viewpoints can be removed from the Title X program

without constitutional difficulty. Petitioners appear to

ecept the notion that abortion counseling can be confined

ondirective counseling” (if it means anything) must

am that patients are neither told that abortion is never

a, ropriate nor are advised that abortion is the best

op on in their circumstance. Thus, “nondirective coun-

seli a limitation which Petitioners do not challenge,

itse involves the elimination of some viewpoints.”

were not speaking on behalf of the government. See, e.g., Cor-

nelius, supra (system of charitable solicitation of federal employees

by organizations outside government); Perry Education Ass'n,

supra (school mail system used by teachers to send personal mes-

sages and by outside groups with permission); Lehman, supra

(advertising space on public buses); Greer v. Spock, 424 US.

828 (1976) (outside speakers invited to military base).

20 Petitioners likewise concede that the regulations requiring

“nondirective counseling” did not permit pro-life counseling centers

to participate in the Title X program. Rust Brief at 16 n. 27.

Petitioners’ lapses of logic derive from the more basic

problem that application of their proposed doctrine of

viewpoint neutrality would transform government as we

know it. It has never been suggested that the federal

government must allow any view to be expressed as part

of a government program or that it can only fund pro-

grams expressing every possible viewpoint. When Con-

gress establishes a National Endowment for Democracy

to encourage other countries to adopt democratic prin-

ciples, 22 U.S.C. § 4411(b), it does not also have to fund

a National Endowment for Communism or a National

Endowment for Fascism. If government funds programs

to discourage cigarette smoking, it does not also have to

fund programs to promote smoking. So long as citizens

are free to express their disagreement with government

policy, government is free to adopt and implement con-

stitutionally permissible policies even though that means

subsidizing one viewpoint and not another.”

D. This Court Has Never Held That Expression Of

Viewpoints Within The Doctor-Patient Relationship

Is Entitled To Special Protection.

Although they cite no authority (except Plato) in

support of the notion, Petitioners seem to argue that “the

speech of a doctor or counselor with her patient” is en-

titled to special First Amendment protection. Rust Brief

at 20-24. But the Constitution creates no recognition of

one profession, or of the professions generally, as entitled

to greater First Amendment rights.

It has never been thought that doctors’ speech to pa-

tients may not be regulated. Such a notion surely would

eliminate a whole area of tort law. Doctors in fact are

21 See L. Tribe, American Constitutional Law 807 (2d ed. 1988)

(“The first amendment does not, for example, prevent government

from promoting respect for the flag by proclaiming Flag Day or by

using public property to display the flag. Those who disdain the

national symbol may express that view but may not silence gov-

ernment’s affirmation of national values, nor may they insist that

government give equal circulation to their viewpoint

tightly constrained in what they may or may not say to

a patient. A doctor may truly believe that giving a par-

ticular warning about a prescribed medicine or pro-

cedure is not in the patient’s best interest, but if he

neglects to give the warning he may be subject to lia-

bility. This Court has recognized that the government

has a strong interest in preserving the health of its citi-

zens, see, e. g., Cruzan v. Director, Mo. Dept of Health,

58 U.S.L.W. 4916, 4920-4921 (U.S. June 26, 1990), and

few states have hesitated to exercise those interests by

regulating the conduct of the medical profession, includ-

ing its communications with patients.”

This case is not one where “the State requires [the

physician] to communicate its ideology.” City of Akron

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

416, 472 n.16 (1983) (O’Connor, J., dissenting). As

noted by Justice O’Connor’s dissenting opinion in Akron,

such concerns are raised by cases such as Wooley v. May-

nard, 430 U.S. 705 (1977), where a statute “in effect

require(d] that [a person] use [his] private property as

a ‘mobile billboard’ for the State’s ideological message.”

430 U.S. at 715. The Title X regulations impose no such

general requirement on physicians. Rather, the regula-

tions apply only to those physicians who choose to par-

ticipate in the Title X family planning program. There

simply is no compelled speech.

Even for physicians who choose to participate in the

government program, the regulations do not require any

communication of a government “ideology.” The only re-

quired communication of which Petitioners complain

22 For example, California requires a “standardized written sum-

mary” to be given a patient being treated for breast cancer cover-

ing “the advantages, disadvantages, risks and description of the

procedures with regard to medically viable and efficacious alterna-

tive methods of treatment.” Failure to provide the summary con-

stitutes “unprofessional conduct.” Cal. Health & Safety Code

§ 1704.5 (West 1990). New York has a similar requirement.

N.Y. Pub. Health Law § 2404 (McKinney Supp. 1990). See gen-

erally authorities cited in AAPS Amicus Brief, Section IV.

comes in the context of the post-conception transitional

referral. The provision of a “list of available providers

that promote the welfare of mother and unborn child,”

42 C.F.R. § 59.8(a) (2), does not involve communication

of medical advice at all, nor does it involve the Title X

clinician in communicating any government “ideology”

on abortion. Telling a patient that the Title X program

does not give referrals to clinics that only provide abor-

tion services is no different from telling a patient that

the Medicaid program does not pay for abortions. See

Harris, supra. The requirement that a physician provide

prenatal health information in the context of the referral

merely preserves the patient’s options until she decides

where to seek further medical care. It does not involve

communication of an “ideology” for a physician to tell a

woman that smoking, drinking, drugs, or exposure to

rubella may injure the fetus.

Finally, “the constitutional entitlement of a physician

who administers medical care to an indigent woman is

no broader than that of his patient.” Harris, 448 U.S.

at 318 n.21. While Petitioners complain that an indigent

woman might not receive information concerning abor-

tion if that information is not provided in the Title X

program, they ignore the fact that Maher and Harris ex-

plicitly recognized that refusal to fund abortions might

leave an indigent woman no alternative but to carry her

child to term. Maher, 432 U.S. at 474 (“indigency .. .

may make it difficult—and in some cases, perhaps, im-

possible—for some women to have abortions”); Harris,

448 U.S. at 316-17. As in Maher and Harris, the regula-

tion “has imposed no restriction on access to abortions

that was not already there,” 432 U.S. at 474, and is con-

stitutionally permissible.”

23 Petitioners attempt to argue that the regulations mislead the

Title X client into believing that she is receiving full information

about options for abortion. In fact, the regulations do precisely

the opposite. A woman who asks for abortion information is to be

told that the Title X program “does not counsel or refer for abor-

tion.” If at any other point during counseling the Title X clinician

II. THE TITLE X REGULATIONS DO NOT UNCON-

STITUTIONALLY RESTRICT OR PENALIZE USE

OF PRIVATE FUNDS.

A. The Title X Regulations Permissibly Restrict Use

Of The Matching Funds And Grant-Related Income

That Supplement The Direct Federal Funding Of

90% Of The Costs Of Title X Programs.

Purporting to rely on FCC v. League of Women Vot-

ers, Petitioners contend that the Title X regulations vio-

late the First Amendment by restricting pro-abortion

speech funded by the recipient’s “own private funds“

by which Petitioners mean the matching funds and grant-

related income that offset no more than 10% of the esti-

mated net costs of each Title X program. Rust Brief at

12; see id. at 25-27; State Brief at 46 n.50. The First

Circuit majority in Massachusetts v. HHS, 899 F.2d 53

(1st Cir. 1990) (en banc), identified this argument as

the fundamental ground on which it disagreed with the

Second Circuit ruling now before the Court. Id. at 71.

Petitioners, and the First Circuit, incorrectly apply

League of Women Voters and Regan.

f In League of Women Voters, the Court held that See-

tion 399 of the Public Broadcasting Act of 1967 violated

the First Amendment by forbidding any noncommercial

educational bradeasting station that received a grant

from the Corporation for Public Broadcasting (“CPB”)

from engaging in editorializing. In determining that

Congress had not merely exercised its spending power to

refrain from subsidizing public broadcasting editorials,

the Court emphasized that under Section 399, “a non-

believes that a woman should be told that she is not being given

information about abortion, nothing in the regulations prevents

the clinician from saying so. Indeed, the Title X regulations oper-

ate to make clear from the outset that the scope of Title X does

not extend to abortion counseling or referral.

As described above, n.7 supra, information concerning abortion

may be provided in the context of a discussion of the relative

safety of various contraceptive methods.

commercial educational station that receives only 1% of

its overall income from CPB grants is barred absolutely

from all editorializing.” 468 U.S. at 399-400 (emphasis

added). Because the ban on editorializing applied to ali

of the station’s activities, “[t]he station has no way of

limiting the use of its federal funds to all noneditorial-

izing activities, and, more importantly, it is barred from

using even wholly private funds to finance its editorial

activity.” Id. at 400.

The Title X regulations are fundamentally distinguish-

able in two separate and sufficient respects from the

statute at issue in League of Women Voters. First,

whereas the statute in League of Women Voters lever-

aged a 1% federal grant into a bar on editorializing by

the entire broadcasting station, the Title X regulations

apply only to the Title X-funded program operated by

the recipient organization. They do not restrict any of

the organization’s other programs or operations. The re-

cipient organization therefore is able to limit] the use

of its federal funds to [Title X] activities.” It is not

“barred from using even wholly private funds to finance“

its pro-abortion activities outside the Title X program.

Accordingly, even if a portion of Title X funds might

somehow be deemed “wholly private,” such portion may

be subjected to Title X restrictions. League of Women

Voters, 468 U.S. at 400; see also Regan, 461 US. at

551-553 (Blackmun, J., concurring) (restriction pre-

venting Section 501(c)(3) organization and its Section

501 (e) (4) affiliate from spending on lobbying any por-

tion of individual tax-deductible contributions to the Sec-

tion 501(c) (3) organization is permissible since the Sec-

tion 501(c) (4) affiliate can use other funds to lobby).

Second, the Title X matching funds and grant-related

income that supplement the direct 90% federal grants

are more properly characterized as “public moneys”

rather than “wholly private funds,” and restrictions on

use of these Title X funds are permissible. Any other

conclusion would permit a participant in any federal

matching program—who has agreed to dedicate certain

limited funds to that program—to dilute or subvert the

purposes of the program.

In Regan, the Court, upholding the requirement that a

Section 501 (e) (3) organization not engage in substan-

tial lobbying in order to qualify to receive tax-deductible

contributions, held that this requirement did not penalize

the right of the organization to lobby. Rather, “Congress

has merely refused to pay for the lobbying out of public

moneys,” 461 U.S. at 545 (emphasis added). The Court’s

ruling in Regan is instructive in that the Court treated

the entirety of tax-deductible contributions received by

the organization from private individuals as “public

moneys” because those contributions had the impetus of

a substantial federal subsidy. Thus, the Court first rec-

ognized that “[tax-d]eductible contributions are similar

to cash grants of the amount of a portion of the individ-

ual’s contribution.” 416 U.S. at 544 (emphasis added).

It then characterized as “public moneys” not only that

portion of the individual’s contribution that was similar

to a cash grant (i.e., the amount by which the individ-

ual’s tax burden was lessened), but rather the entire

contribution. Id. at 545.

As in Regan, and unlike in League of Women Voters,”

the Title X matching funds and grant-related income are

24 In contrast to the Court’s analysis in Regan, one might have

argued that a $100 contribution by an individual in the 28% tax

bracket comprised a $28 cash grant by the government and a $72

private contribution by the individual, and that Congress should

not be able to prohibit a Section 501(c) (3) organization from us-

ing the $72 “private” contribution for lobbying. But the Court

properly did not adopt such an analysis, which ignores, inter alia,

the impetus that the substantial federal subsidy—in the form of

tax-deductibility—provided for the seemingly private portion of

the contribution.

25 The CPB grants in League of Women Voters could amount to

as little as 1% of a station’s overall income, 468 U.S. at 399-400,

and were not structured in a manner (¢.g., tax-deductibility or

matching program) that inherently provided impetus for private

contributions.

not “wholly private funds” since they benefit from the

impetus of the federal government’s direct grant of at

least 90% of the costs of Title X programs. Indeed,

these moneys are far more clearly “public” than the

“public moneys” in Regan for several reasons.

First, the Title X program is structured as a matching

program. Thus, unlike the general-purpose tax subsi-

dies at issue in Regan, the direct federal grant funds are

specifically intended to provide an impetus for matching

funds to promote the purposes of Title X. By agreeing

to dedicate matching funds and grant-related income to

a Title X program, a recipient organization effectively

consents to a voluntary tax for these purposes.

Second, whereas the baseline percentage of the federal

subsidy in Regan was the individual’s marginal tax rate,

the direct federal subsidy of Title X programs is at least

90%. Thus, federal funds provide the essential funding

for Title X programs, and the high rate of subsidy pro-

vides even greater justification than in Regan for char-

acterizing remaining Title X funds as public.

Third, whereas in Regan the Court understood the or-

ganization’s contributions to come from private taxpay-

ers, Title X recipient organizations can and do use other

government funds (and, when permitted, grant-related

income) to meet their matching share. See 45 C.F.R.

§§ 74.52(a), 74.53 (a) (2) (permitting matching share to

be met through non-federal grants, which may include

federal general revenue sharing funds); id. § 74.53(a)

(3). Such matching funds would not be “wholly private”

even apart from their dedication to Title X. Similarly,

grant-related income—which is income generated by the

Title X program and which presumptively serves to off-

set the gross costs of the program, 45 C.F.R. § 74.42(c)

(1)—is more clearly public than the individual contribu-

tions in Regan.

In sum, the fact that the direct federal grants of 90%

of the costs of Title X programs are supplemented by

matching grants and grant-related income does not ren-

der the Title X regulations constitutionally suspect.

B. Section 59.9, Either Alone Or In Tandem With Sec-

tion 59.8, Does Not Impermissibly Burden Recipi-

ent Organizations’ Rights To Engage In Abortion

Activities Outside A Title X Program; Rather, It

Ensures That Title X Funds Do Not Improperly

Subsidize Such Abortion Activities.

Petitioners argue that the “program integrity” re-

quirement of Section 59.9 uneonstitutionally burdens the

abortion-related expressive activities of recipient organi-

zations outside the Title X program. Rust Brief at 27-31;

State Brief at 42-46.

Petitioners’ argument has two basic prongs. First,

they argue that under Section 59.9, they will not be able

to use Title X funds to share the costs of facilities and

personnel used in common with non-Title X programs

and activities. Rust Brief at 27-30; State Brief at 42-45.

Second, they argue that Section 59.9, combined with Sec-

tion 59.8, will prevent recipient organizations from using

the Title X program to refer Title X clients to the abor-

tion services that these same organizations provide out-

side the Title X program. Rust Brief at 30-31; State

Brief at 45-46. In short, Petitioners’ real complaint is

that they will not be able to use Title X funds to cross-

subsidize their non-Title X activities and to solicit clients

for their non-Title X abortion services.

Contrary to Petitioners’ claim (Rust Brief at 28 & n.

49; State Brief at 44), this Court’s opinion in Regan

supports the appropriateness—indeed, the necessity—of

preventing Title X funds from being used to cross-subsi-

dize activities outside the scope of Title X. In Regan,

the Court, in recognizing that an entity might employ a

Section 501(c) (3) organization for nonlobbying activi-

ties and a Section 501 (e) (4) organization for lobbying,

warned that such an entity “would, of course, have to

ensure that the § 501 (e) (3) organization did not subsi-

dize the §501(c)(4) organization; otherwise, public

funds might be spent on an activity Congress chose not

to subsidize.” 461 U.S. at 544 (emphasis added).

Absent the “physical separation” requirement of Sec-

tion 59.9, Title X funds would be used to cross-subsidize

non-Title X abortion services, and recipient organiza-

tions, including Petitioners, could subvert Title X by

using Title X funds to solicit clients for abortions. In-

deed, it was precisely such abuses that the Title X regu-

lations were designed to end. 53 Fed. Reg. at 2924-25.

Thus, it is clear that Petitioners have no right to “pool”

Title X funds with other funds.”

In sum, Section 59.9, alone or in tandem with Section

59.8, does not infringe Petitioners’ First Amendment

rights. Instead, it operates to ensure that Title X funds

not be used to promote an activity—abortion—that Con-

gress chose not to subsidize through Title X.“

CONCLUSION

The Title X regulations do not infringe Petitioners’

First Amendment rights. The American Academy of

Medical Ethics therefore requests that the Court affirm

the ruling of the United States Court of Appeals for the

Second Circuit.

26 Each of the cases cited by Petitioners in support of a right

to pool funds (see Rust Brief at 28, 29-30; State Brief at 44-45)

involved pooling of private funds, not pooling of federal funds

with private funds.

27 Because Section 59.9 promotes the congressional purpose of

ensuring that Title X funds are not used to subsidize abortion (or

other non-Title X activities), Petitioners’ strained reliance on

Regan (Rust Brief at 28 & n. 49, State Brief at 44) is mistaken.

See Regan, 461 U.S. at 544 n. 6 (separation requirement that is

related to congressional purpose of ensuring that cross-subsidiza-

tion does not occur is not unduly burdensome).

Respectfully submitted,

CAROLYN B. KUHL

M. EDWARD WHELAN III

MUNGER, TOLLES & OLSON

355 South Grand Avenue

Thirty-Fifth Floor

Los Angeles, California 90071

(213) 683-9100

Counsel for Amicus Curiae

The American Academy

of Medical Ethics *

Dated: September 7, 1990

* Counsel gratefully acknowledges the assistance of Michael J.

Haungs (J.D., Columbia Law School, 1990) in the preparation of

this Brief.

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