Amicus Curiae Brief — Rust v. Sullivan

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TABLE OF CONTENTS

I. THE REGULATIONS ISSUED BY THE DE-

II.

PARTMENT OF HEALTH AND HUMAN

SERVICES ACCORD WITH CONGRES-

ę I Batacditcitthecininscntnncsncinsnsdenimnessncere

A. Congress Intended to Fund Only Pre

pregnancy Services, Not to Allow Grantees

to Encourage or Promote Abortion in Title

.

B. The Court of Appeals Correctly Concluded

that the Regulations, the First Authorita-

tive Interpretation of Section 1008, Are

Reasonable and Lawful ................-.000-0000....

THE TITLE X REGULATIONS DO NOT IN-

FRINGE CONSTITUTIONAL RIGHTS.

A. Freedom of Speech Is Not Abridged by the

W

B. A Pregnant Woman's Relationship With

Her Physician Is Not Burdened by the

n So ee a en

J SE ² R

24

— Cal nee

:

ii

TABLE OF AUTHORITIES

CASES: Page

Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416 (1983) 25, 26

American Trucking Ass’ns v. Atchison, Topeka &

S. F. Ry. Co., 387 U.S. 397 (1967) 15

Bankamerica Corp. v. United States, 462 U.S. 122

(1983) 16

Bob Jones University v. Johnson, 396 F. Supp. 597

(D. S. C. 1974), aff'd mem., 529 F.2d 514 (4th

Cir. 1975) 3 20

Bowen v. Kendrick, 487 U.S. 589 (1988) . 22, 28

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) 12

Chevron, U.S. A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 887 (1984) 9, 17

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ..... 9,17

Davis v. United States, 110 S. Ct. 2014 (1990) . 15, 16

Director, OWCP v. Perini North River Assocs.,

459 U.S. 318 (1983) 12

EEOC v. Associated Dry Goods Corp., 449 US.

900 A amen 16

Ernst & Ernst v. Hochfelder, 425 U.S. 185

ccc an 9

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

n 12

Grove City College v. Bell, 465 U.S. 555 (1984) . 20, 21,

22, 27

Harris v. McRae, 448 U.S. 297 (1980) 4, 16, 19, 24, 26

Joseph v. United States Civil Service Commission,

554 F.2d 1140 (D.C. Cir. 1977) , 16

Maher v. Roe, 482 U.S. 464 (1977) 19, 26, 27

Massachusetts v. Sullivan, 899 F.2d 53 (Ist Cir.

29 ö 9

Morton v. Ruiz, 415 U.S. 199 ZK 16

Motor Vehicle Manufacturers’ Ass’n v. State

Farm Mutual Auto Ins. Co., 463 U.S. 29

. 15

NLRB v. Bell Aerospace Co., 416 US. 267 (1974).. 15

NLRB v. United Food & Commercial Workers,

e re a ae 16

iii

TABLE OF AUTHORITIES—Continued

Page

New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y.

D ...... passim

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

cert. granted, 110 S. Ct. 2559 (May 29, 1990) ....passim

Pennhurst State School and Hospital v. Halder-

een 19, 21

Planned Parenthood Federation of America v.

Bowen, 687 F. Supp. 540 (D. Colo. 1988) 14

Poelker v. Doe, 482 U.S. 519 (1977) ......................... 24, 26

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

r TE 8 SERS SR RE 21, 27

Roe v. Wade, 410 U.S. 113 (1973) 12, 18, 26

Thornburgh v. American College of Obstetricians

E Gynecologists, 476 U.S. 747 (19869) 25, 26

Udail v. Tallman, 380 U.S. 1 (1965) 17

Valley Family Planning v. North Dakota, 661

F.2d 99 (8th Cir. 1981) 15

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

. 17

Webster v. Reproductive Health Services, 109 8.

. 16, 19, 24, 25, 27

STATUTORY, REGULATORY, AND LEGISLA-

TIVE MATERIALS:

Public Health Service Act, Title X, Pub. L. No.

91-572, 42 U.S.C. § 300, et seg. (1970) passim

/ . x

42 U.S.C. § 800a-4(a) (1982) 7, 20

e passim

42 U.S.C. § 300a-7(a), (e) (19822ã27:᷑9½)) 3

42 U.S.C. § 3002-5 (a) (21) (1982) 19

Adolescent Family Life Act, Title XX, 42 U.S.C.

fo e 19, 22, 23

Department of Health and Human Services, Pro-

gram Guidelines for Project Grants for Family

Planning Services (1981) passim

Conf. Rep. No. 91-1667, 91st Cong., 2d Sess.

i . 24

iv

TABLE OF AUTHORITIES—Continued

Page

116 Cong. Rec. 37375 (197o)ʒꝝ/ 7,10

124 Cong. Rec. H13289 (daily ed. Oct. 13, 1978) 11

42 C. F. R. § 59.2 (1989) 7, 20

Fee ññ, r 8

Pe Ee 7

r ER a 7

e ... 7

rr ER 7

36 Fed. Reg. 18,465 (Sept. 15, 1971) 8 15

45 Fed. Reg. 37,486 (June 3, 198) 15

52 Fed. Reg. 33,210 (Sept. 1, 1987) 11, 24

58 Fed. Reg. 2923 (Jan. 28, 1988) — 14, 17

53 Fed. Reg. 2944 (Feb. 2, 1988) 7, 17

MISCELLANEOUS:

Appellees’ and Cross-Appellants’ Brief in Bowen

v. Kendrick, United States Supreme Court, Nos.

87-253, 87-431, 87-462 and 8777 22

Brief of the United States Catholic Conference,

Amicus Curiae in Webster v. Reproductive

Health Services, United States Supreme Court

r . 25

D. Callahan, Abortion: Law, Choice and Morality

¢ ea Rees SRE 5 eee. PL 10

A Path to Constitutional Equilibrium, 12 Camp-

Are 25

Kasun, “Cutoff of Abortion Funds Doesn’t Deliver

Welfare Babies,” The Wall Street Journal, Dec.

N Kreer 11

Letter from John D. Dingell to Otis R. Bowen

r ² A i i te 13

K. Luker, Taking Chances: Abortion and the De-

cision Not to Contracept (1975) 10

R. Sherlock, “The Demographic Argument for

Liberal Abortion Policies: Analysis of a

Pseudo-Issue,” in New Perspectives on Human

Abortion (Hilgers, Horan and Mall eds. 1981) 10

In THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 89-1391, 89-1392

Dr. IRVING Rust, et al.,

Petitioners,

v.

Dr. Louis SULLIVAN,

Secretary of the Department of Health

and Human Services,

Respondent.

THE STATE OF NEW YORK, et al.,

Petitioners,

V.

DR. Louis SULLIVAN,

Secretary of the Department of Health

and Human Services,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Second Cireui.

BRIEF AMICUS CURIAE OR THE

UNITED STATES CATHOLIC CONFERENCE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS

The United States Catholic Conference (“Confer-

ence”) is a nonprofit corporation organized under the

laws of the District of Columbia. Its members are the

active Catholic Bishops in the United States. The Con-

ference advocates and promotes the pastoral teaching of

9

—

the Bishops in such diverse areas as education, family

life, health and hospitals, social welfare, immigration,

civil rights, criminal justice, and the economy. When

permitted by court rules and practice, the Conference

files briefs as amicus curiae in litigation of importance

to the Catholic Church and its people in the United

States. This is especially so in cases affecting the most

fundamental right—the right to life. The Conference

filed written comments in support of the rules challenged

in the instant case and appeared as amicus curiae before

the Second Circuit in this case.

The Conference is concerned that reversal of the Sec-

ond Circuit’s judgment will hinder effective enforcement

of Section 1008 of Title X of the Public Health Service

Act, Pub. L. No. 91-572, 42 U.S.C. § 300, et seg. (1970),

and undermine the federal government’s policy disfavor-

ing abortion. In 1970, Congress enacted Title X in order

to deliver federally funded family planning services to

low-income persons. Although Congress intended to deny

Title X funds to programs where abortion was a method

of family planning (42 U.S.C. § 300a-6 (Section 1008) ),

enforcement and implementation of this prohibition by

the Department of Health and Human Services was in-

formal and uneven. The Conference—as well as others—

was openly critical of the Department’s administration

of Section 1008. In 1988, after much debate about the

legitimacy of continuing Title X funding for programs

which were also promoting abortion, the Department for

the first time issued regulations enforcing and imple-

menting Section 1008. The instant case challenges those

important restrictions on the promotion of abortion in

Title X projects, restrictions that are consistent with

congressional intent, constitutional principle, and sound

public policy. For that reason, the Conference supported

the Secretary of the Department of Health and Human

Services in the court below and continues to do so here.

The parties have consented to the appearance of the

United States Catholic Conference as amicus curiae.

SUMMARY OF ARGUMENT

In 1970, in order to provide family planning assistance

to low-income families, Congress enacted Title X of the

Public Health Service Act. Pub. L. No. 91-572, 42

U.S.C. § 300, et seg. (1970). During the legislative de-

bate leading to enactment of the statute, Congress care-

fully distinguished between methods which would prevent

pregnancy and methods which would prevent birth by

terminating pregnancy. Congress intended to fund a pro-

gram aimed at providing contraceptive services but, at

the same time, to ensure that Title X funds would not be

used to promote or encourage abortion in any way. 42

U.S.C. § 300a-6 (Section 1008).

Until 1988, the Department of Health and Human

Services (hereafter “HHS’) issued no regulations spe-

cifically implementing Title X’s abortion restriction.

Prior to that time, the staff of the Public Health Ser-

vice, through its grant application review guidelines, had

effectively mandated the provision of abortion-related

services in Title X programs. Thus, while Title X denies

the use of federal funds in programs where abortion is

a “method of family planning,” Public Health Service

staff had sidestepped this proscription by calling abortion

referral a related “required service.” See Bureau of

Community Health Services, Department of Health and

Human Services, Program Guidelines for Project Grants

for Family Planning Services, Guideline 8.6 (1981)

(hereafter “Guidelines” ) .'

1The Conference has always been concerned that the 1981

Guidelines were in tension with the policy of federal “conscience

clauses.” 42 U.S.C. § 300a-7(a), (c) (1982). The Public Health

Service Guidelines, which envision a formal referral process de-

signed to “assure” that abortion appointments are kept (see, e. g.,

Guideline 7.4), clearly threaten to undermine federal policies de-

signed to protect health care personnel from having te choose

between institutional policy and their religious beliefs. For this

reason, aside from their conflict with Section 1008, those 1981

Guidelines have long been considered illegitimate by the United

4

Through the use of these Guidelines, Title X grantees

were openly arranging elective abortions for Title X

clients in violation of Congress’ clear proscription of

such activity. It was no secret that organizations that

performed, advocated, and encouraged abortion, such as

petitioner Planned Parenthood, were major Title X

grantees. As a result, the Public Health Service Guide-

lines became the target of much critical commentary;

they were contrary to Title X and undermined broader

federal policy encouraging childbirth over abortion—a

policy embodied in, among other things, funding restric-

tions for abortion services. See Harris v. McRae, 448

U.S. 297 (1980). The eventual efforts by HHS to en-

force Section 1008 of Title X were long overdue. No

longer were Title X grantees able to create a mere

“paper” separation between their operations providing

family planning services and those providing abortion

services. In many instances, some of which were de-

scribed in the rulemaking record, Title X and abortion

services had been openly offered together, sometimes in

the same room within an organization. Thus grantees’

clients were confused about the nature of Title X ser-

vices, and the federal government’s insistence that abor-

tion was not to be promoted with federal money was

made an apparent sham. Faced with these circum-

stances, HHS was within its regulatory discretion to im-

plement Section 1008 by insisting on physical separation

of abortion services and elimination of abortion advocacy

from the Title X program.

The HHS regulations are entirely consistent with both

the plain language ot Title X and its legislative history.

When Title X was enacted, abortion was a crime in vir-

tually all states. The legislative history demonstrates

that Congress intended for the Title X program to avoid

States Catholic Conference. Because of their opposition to artificial

contraception, Catholic organizations may not properly .

as grantees for the full scope of Title X services.

5

all involvement with abortion. In the 1988 rulemaking,

HHS enacted its first binding interpretation enforcing

that restriction, thereby correcting informal staff prac-

tice that was at best uneven and at worst contrary to

law. This Court need only decide if the HHS regulations

are reasonable and lawful—a standard these rules

plainly satisfy.

Unlike programs in which constitutional rights are re-

quired to be surrendered as the price for receipt of some

federal benefit, Title X rules demand only that prospec-

tive grantees be willing to abide by limitations designed

to advance and protect the federal program. These rules

place no new obstacles in the way of a pregnant woman’s

access to abortion. Indeed, as a pre-pregnancy program,

Title X simply has no effect on a pregnant woman’s re-

lationship with her doctor. Forbearance from abortion

advocacy and counseling is not the price of receiving a

benefit but an essential component of the program. Pri-

vate whim may not be allowed to convert a federal pre-

pregnancy family planning program into a pre-natal (or

more accurately, an anti-natal“ pregnancy services

program. If grantees may resist programmatic restric-

tions with which they disagree, they would be able to

change the character of this or any other program into

something Congress never intended or even explicitly

prohibited.

The lower courts in this case properly understood the

discretionary nature of the statutory and regulatory

power exercised by HHS. They also correctly under-

stood the agency’s right to implement Congress’ decision

to fund only programs where abortion is not a method

of family planning. A review of the opinions below, as

well as the rulemaking documents and records, will show

that HHS faced and effectively responded to a serious

challenge to the legitimacy of the only substantive pro-

scription in Title X—tthat federal programs may not pro-

vide, encourage or counsel abortion. The Second Circuit’s

judgment must be affirmed.

6

ARGUMENT

The provision of family planning services in the

United States, like so many other social services, reflects

essentially a statutory combination of government and

private resources. See, e.g., Pub. L. No. 91-572, $2

(1970) (Statement of Purposes for Title X). This form

of public/nonpublic cooperation has effectively replaced

the historically private social service system with a

broader, government-supported umbrella of social ser-

vices. Uuder such arrangements, government funds pro-

vide most of the financial support, with private entities

supplementing the financial resources and supplying the

direct delivery of services to the population. Such agree-

ments, mandated by legislation, have both affirmative

and restrictive aspects. Affirmatively, the government

must depend on the goodwill of the private entity to as-

sure that its policy goals are achieved. It also must de-

mand enforcement of a program’s restrictive require-

ments to ensure that public money is not misused by the

grantees. The achievement of both statutory require-

ments is necessary for the proper delivery of social ser-

vices under such programs.

In this case, private grantees challenge the restrictive

requirements of a statute enacted by Congress and in-

terpreted by the agency charged with enforcement. They

seek to impose their own will on a federal social service

program and transform the government’s family plan-

ning policy from one encouraging pregnancy prevention

to one fostering pregnancy termination. Their efforts

must fail on both statutory and constitutional grounds.

I. THE REGULATIONS ISSUED BY THE DEPART-

MENT OF HEALTH AND HUMAN SERVICES

ACCORD WITH CONGRESSIONAL INTENT.

In 1970, Congress enacted a program to provide low-

income individuals with family planning services, of-

fering grants to public or nonprofit private entities to

7

execute the program according to its statutory terms—

terms which included, among others, a prohibition

against employing funds “in programs where abortion is

a method of family planning.” 42 U.S.C. § 300a-6 (Sec-

tion 1008). The statute also carried a mandate for “such

regulations as the Secretary may promulgate.” 42 U.S.C.

§ 300a-4(a) (1982). The Secretary of the Department

of Health and Human Services (HHS) accordingly pro-

mulgated implementing regulations. Among those are 42

C. F. R. § 59.2 (1989) which defines Title X project

funds” as all funds allocated to a Titie X program, in-

cluding but not limited to grant funds, grant-related in-

come and matching funds.“ Sections 59.8, 59.9, and 59.10

prohibit grantees from employing Title X project funds

for counseling or referral for abortion services or for

abortion advocacy efforts; they require the separation of

facilities, personnel and records to enforce these prohi-

bitions. Also, amended 42 C.F.R. § 59.7 (1989) requires

grantees to provide “assurance satisfactory to the Sec-

retary that [the program] does not include abortion as a

method of family planning.” See 53 Fed. Reg. 2944

(Feb. 2, 1988).

Not merely a prohibition on the use of Title X funds

for the actual performance of abortions, Section 1008

broadly precludes the extension of any federal financial

assistance to programs that promote or encourage abor-

tion “in any way.“ Petitioners see in Section 1008's

language a ban only on actually providing abortions

within a Title X program, not on speech about abor-

tion.“ But their reasoning is flawed. In every case, and

in its every phase, the family planning process involves

speech about family planning options. Information is an

2 Ordinarily, Title X grants constitute 90% or more of the total

funding for a Title X program. 42 U.S.C. § 300a-4(a).

3116 Cong. Rec. 37375 (1970) (Congressman Dingell).

* Petitioners’ Brief at 41-42 (hereafter “Pet. Brief

8

essential service in every family planning program.

Abortion, advocated-or referred for, is just as much a

part of a Title X program as if it were provided. The

result is the same: abortion becomes a method of family

planning.

Further supporting this conclusion is the fact that cer-

tain family planning options remain part of a family

planning program even when the grantee does not have

the facilities to provide them but only refers clients to

another facility. See Bureau of Community Health Serv-

ices, Department of Health and Human Services, Pro-

gram Guidelines for Project Grants for Family Plan-

ning Services (1981) (hereafter Guidelines“) 6.1

(“Structure of the Grantee”) and 7.4 (“Referrals and

Follow-up”); 42 C.F.R. § 59.5 (b) (1) (1989) (“Each

Title X project must: Provide for . . necessary refer-

rals to other medical facilities when medically indicated

....). Oral referrals regarding an option make that

option a part of the Title X project. Implementation of

Section 1008 therefore requires that Title X programs

neither provide nor refer for abortion.“

In enforcing the congressional mandate with the cited

regulations, HHS drew a bright line between provision

of preventive family planing services to those not yet

pregnant and provision of services to pregnant women.

Although this would appear to be a reasonable, even re-

quired, interpretation of Title X by the agency charged

with enforcement, petitioners disagree with the location

It is clear also from Sectior. 1001 of Title X (42 U.S.C. § 300 (a)

(1982)) that the language of Section 1008 contemplates a ban on

more than abortion procedures. Section 300(a) requires grantees to

“offer” family planning methods and services, and lists specific

types. But Section 1008 does not prohibit merely “offering” abor-

tion. It bans, more broadly, “abortion . . . [as] a method of family

planning.” ,

_— =

9

of the line HHS has drawn and with the selection of

measures to enforce it. It remains, nevertheless, the

prerogative of HHS—not petitioners or a court—to

choose specific methods for implementing Congress’ in-

tent to limit Title X funds to projects providing only

pre-pregnancy services. Ernst & Ernst v. Hochfelder,

425 U.S. 185, 213 (1976) ; Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

A. Congress Intended to Fund Only Pre-pregnancy

Serv'zes, Not to Allow Grantees to Encourage or

Promote Abortion in Title X Programs.

Although some terms in Section 1008 may admit of

more than one construction, this much is certain: Sec-

tion 1008 precludes the facilitation and promotion of

abortion in Title X programs.* How HHS was to admin-

ister this prohibition is not prescribed. Title X would

appear to permit HHS a range of permissible options to

bar federal funds from programs using abortion as a

method of family planning. It is axiomatic that an

agency’s choice among alternative regulations for im-

plementing a statute is a decision reserved exclusively to

that agency and will not be overruled if it is reasonable

in light of all the circumstances. Chevron, U. S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837,

844-45 (1984). Thus the district court correctly deter-

mined that the “new regulations do not offend the direc-

tion contained in section 1008 ....” New York v.

Bowen, 690 F. Supp. 1261, 1272 (S.D.N.Y. 1988). The

Second Circuit properly upheld that determination. New

York v. Sullivan, 889 F.2d 401 (1989), cert. granted, 110

S. Ct. 2559 (May 29, 1990). The First Circuit, en bane,

reached a similar conclusion. Massachusetts v. Sullivan,

899 F.2d 53, 64 (Ist Cir. 1990).

® See note 3, supra.

10

That direction was spelled out explicitly by Repre-

sentative Dingell, a principal sponsor of a Section 1008

amendment, in his floor statement:

With the “prohibition of abortion” amendment—

Title X, Section 1008—the committee members

clearly intend that abortion is not to be encouraged

or promoted in any way through this legislation

There is a fundamental difference between the pre-

vention of conception and the destruction of devel-

oping human life. Responsible parenthood requires

different attitudes toward human life once conceived

than toward the employment of preventive contra-

ceptive devices or methods. What is unplanned con-

traceptively does not necessarily become unwanted

humanly ....

116 Cong. Rec. 37375 (1970) (emphasis added). Con-

tinuing, Representative Dingell observed that:

If there is a direct relationship between family

planning and abortion, it would be this, that prop-

erly operated family planning programs should re-

duce the incidence of abortion.

Id. He also cited “evidence that abortion as a method of

family planning has a negative effect on the implementa-

tion of family planning programs,” and that “the preva-

lence of abortion as a substitute or a back-up for con-

traceptive methods can reduce the effectiveness of family

planning programs.” Jd.’ HHS properly concluded from

As early as 1970, the possibility that abortion availability could

undermine the prevention of pregnancies had already been ex-

plored in D. Callahan, Abortion: Law, Choice and Morality, Chap-

ter 7 (1970). More recent analyses include: K. Luker, Taking

Chances: Abortion and the Decision Not to Contracept, 10 and

ne (1975) (“California women seem to ng a de facto

choice of abortion as a method of fertility con The legaliza-

tion of abortion has apparently led to a “reduced motivation to

use contraceptives.”) ; R. Sherlock, The Demographic Argument for

Liberal Abortion Policies: Analysis of a Pseudo-Issue,” in New

L 11

its review of legislative history that Title X is meant to

fund the provision of preventive and other pre- pregnancy

family planning services, and not to promote or encour-

age abortion in any way.“ 52 Fed. Reg. 33,210 (Sept. 1,

1987). Petitioners’ attempt to import abortion into Title

X as a backup to contraception * must fail in light of this

legislative history, especially Representative Dingell’s

clear statement to the contrary.°

Other legislative activity also supports the choices

HHS made in its effort to effectuate the congressional

mandate embodied in Section 1008. For example, in

1978, during debates concerning possible amendments to

Title X, Representative Dornan proposed to amend Sec-

tion 1006 of Title X to strengthen the antiabortion re-

striction, as follows:

No grant or contract authorized by this title may

be made or entered into with an entity which di-

rectly or indirectly provides abortion, abortion coun-

seling, oe any abortion refcrral services.

124 Cong. Rec. H13289 (daily ed. Oct. 13, 1978). The

proposed amendment was refused on the grounds that

Section 1008 of the Act already encompassed the prof-

fered prohibitions. Representative Rogers, a member of

the Public Health & Welfare Subcommittee at the time

Title X was enacted, stated:

Perspectives on Human Abortion (Hilgers, Horan and Mall eds.

1981) 450-65, especially 456-60; and Kasun, “Cutoff of Abortion

Funds Doesn’t Deliver Welfare Babies,” The Wall Street Journal,

Dec. 30, 1986 (suggesting that a cutoff of public funding for

abortion in Ohio and Georgia led more people to “take steps to

reduce conception“)

Pet. Brief at 41 n.74 (“Title X programs,. . . treat abortion

as a backup to contraceptive or human failure.

* Petitioners acknowledge that a statute’s contemporaneous legis-

lative history constitutes “the most reliable indicator of congres-

sional intent Pet. Brief at 42 n.77.

12

Abortion is not a method of family planning. Abor-

tion comes after pregnancy—after pregnancy. And

the gentleman misses the point of what we are do-

ing in Titie X. It’s before—before. It is to let peo-

ple know how to avoid pregnancy. We cannot use

any funds for abortion. The amendment is not

needed.

Id. (emphasis added).

Further support for the conclusion that HHS correctly

interpreted the legislative history applicable to Title X

is found in the state of the law concerning abortion at

the time Congress enacted Title X. % In 1970, abortion

was illegal in most states and the District of Columbia.

Roe v. Wade, 410 U.S. 113, 118 n.2 (1973) .™ Therefore,

if Congress intended to permit Title X projects to advo-

cate, counsel or refer for abortions, it would have been

encouraging and even funding activity that was criminal

in a majority of states. More importantly, Title X was

not drafted anticipating a change in the legal status of

abortion in 1973, nor was it ever amended to do so. If

it is the overwhelming consensus of tie existing laws that

1% According to settled principles of statutory construction, it is

appropriate to consider the state of the law contemporaneous with

the legislation at issue to discern Congress’ true legislative intent

respecting the statute. Goodyear Atomic Corp. v. Miller, 486 U.S.

174, 185-86 (1988) (“We generally presume that Congress is

knowledgeable about existing law pertinent to the legislation it

enacts.”); Director, OWCP v. Perini North River Assocs., 459

U.S. 318, 319 (1983) (“We may presume ‘that our elected repre-

sentatives, like other citizens, know the law,’” (quoting Cannon v.

Univ. of Chicago, 441 U.S. 677, 696-97 (1979))).

" Petitioners’ suggestion that, in 1970, the “vast majority of

states permitted abortions under varying circumstances” ( Pet.

Brief at 43 n.78) is a misleading characterization of the true

state of the law in 1970. This Court recognized in Roe that for a

long period of time prior to 1978, a majority of states criminalized

abortion in all cases save when a mother’s life was at stake. 410

U.S. at 118 n.2.

—

13

certain conduct is forbidden, even criminal, this is indeed

weighty evidence that a legislature did not intend to per-

mit, finance or encourage it in any way.

The fact that abortion was generally illegal in 1970 is

of additional importance because, in 1987, Representative

Dingell criticized the proposed HHS regulations as inap-

propriate to the current legal environment. He even at-

tempted to recant his various floor statements which

were part of the 1970 legislative history. But his post

facto attempt to revisit and revise the legislative history

has no legal or interpretative effect. The HHS regula-

tions are valid whether or not his 1970 remarks specifi-

cally suggested or intended the precise requirements

eventually imposed by HHS. HHS—as well as this

Court—must consider the state of the law concerning

abortion at the time Title X was enacted to discern true

congressional intent, despite changes in the law since

1970. This is not a principle of limitation but a canon of

construction; '* it mandates that because legal liability

would have attended “any part of the [abortion] referral

process,” ** HHS must understand Congress to have in-

tended that Title X programs be completely separate

from that process.

12 First he argued that his remarks did not “suggest” endorse-

ment of any specific requirements to be imposed by regulations.

Then he stated that the full content of remarks in the Conference

Report evidenced a congressional intent not to interfere with the

activities of “organizations” supported by non-Title X funds.

Third, he suggested that HHS should have “viewed in a different

light” the legal concerns giving rise to his 1970 comments. By

specific referral to Roe v. Wade, he also noted that his statements

were delivered during a period when “legal liability coul

have attended any part of the referral process” and that HHS is

“required,” under principles of statutory construction, to make

“reference to the state of the law at the time legislation [was]

passed.” Letter from John D. Dingell te Otis R. Bowen (Oct. 14,

1987).

13 See note 10, supra.

See letter from John Dingell, note 12, supra (emphasis added).

14

B. The Court of Appeals Correctly Concluded that the

Regulations, the First Authoritative Interpretation

of Section 1008, Are Reasonable and Lawful.

It is no secret that many Title X grantees are among

the leading abortion services providers in the United

States. It is plain where the sympathies of these grantees

lie in the publie controversy over abortion. It is also

plain that such grantees operated programs where the

separation between Title X and abortion services was

only as strong as their commitment to furnish forms and

other paperwork showing that no federal, as opposed to

non-federal, Title X money was spent on abortion. The

record compiled in the rulemaking proceeding suggests

that the client population was sometimes misled and

often confused by such activities.“ In order to correct

such misinterpretations and end any confusion, binding

regulatory action was needed to separate Title X pro-

grams from abortion and, thus, enforce the statute. 53

Fed. Reg. 2923 (Jan. 28, 1988). In order to so act, the

Secretary of HHS had to address himself to prior prac-

tise by his own agency.

As the Second Circuit observed: “The fact that an

agency is departing from a long-held prior interpreta-

tion is of course an item to be taken into account by a

court reviewing agency action.” Sullivan, 889 F.2d at

409. The only evidence of “prior interpretation,” in this

% The rulemaking docket contains evidence that numerous

clients of Planned Parenthood facilities (one of the largest re-

cipients of Title X funding) were actively advised to seek abor-

tions, in contravention of Title X (and even the 1981 Guidelines

permitting, at most, abortion referrals). At least 33 letters com-

menting upon the proposed regulations spoke to these abuses. See

affidavits of various Planned Parenthood officials acknowledging

that abortion is regularly counseled as a “backup” contraceptive

method at their facilities. Planned Parenthood Federation of

America v. Bowen, Civ. Action No. 88 W 158 (D. Colo. 1988)

(affidavits of Karril Galloway, Kirtly Jones, Marilyn Foelski and

Sylvia Clark).

— —

15

case, however, are internal HHS memoranda and letters,

and the 1981 staff Guidelines.!“ See generally, Bowen,

690 F. Supp. at 1269-71. Such documents do not have

the same official status as regulations or administrative

decisions binding on both the agency and the public, and

are not entitled to the same deference by agencies, or by

courts reviewing new rulemaking on the same subject.

Davis v. United States, 110 S. Ct. 2014, 2022 (1990) .7

In Motor Vehicle Manufacturers’ Ass’n v. State Farm

Mutual Auto Ins. Co., and NLRB v. Bell Aerospace Co.,“

two cases relied upon by petitioners, federal executive en-

tities allegedly departed from precedent established in

hearings before their administrative boards. Until over-

ruled or modified, such precedent indeed binds agencies

to act in a particular way. But the instant case involves

only interpretive guidelines, memoranda and opinion

letters—a significant difference.

Traditionally, “interpretive guidelines” are not bind-

ing except on the staff and are not entitled to the defer-

16 Regulations implementing but not interpreting Section 1008

were issued in 1971 (36 Fed. Reg. 18,465, Sept. 15, 1971) and

revised in 1980 (45 Fed. Reg. 37,436, June 3, 1980). Both merely

stated that Title X projects could not “provide abortions as a

method of :amily planning.”

7 As the court of appeals also correctly observed (Sullivan,

889 F.2d at 409), an agency may change its mind, especially when

faced with circumstances demanding regulatory attention. Ameri-

can Trucking Ass’ns v. Atchison, Topeka & S. F. Ry. Co., 387 U.S.

397, 416 (1967). Such reconsideration by an agency is entitled

to judicial deference. Motor Vehicle Manufacturers’ Ass’n v.

State Farm Mutual Auto Ins. Co., 463 U.S. 29, 42 ( 1983).

8 Respectively, 463 U.S. 29 (1983) and 416 U.S. 267 (1974).

1 The Guidelines state that their purpose is merely to “inter-

pret ] the law and regulations.” Guidelines 2.0 (emphasis added).

Additionally, a United States Court of Appeals specifically judged

these Guidelines to be “interpretive” only. Valley Family Planning

v. North Dakota, 661 F.2d 99 (8th Cir. 1981).

16

ential judicial review accorded regulations. Davis v.

United States, supra. See also Morton v. Ruiz, 415 US.

199 (1974); Joseph v. United States Civil Service Com-

mission, 554 F.2d 1140, 1154 n.26 (D.C. Cir. 1977) (In-

terpretative rules do not have the force of law and even

though courts often defer to an agency’s interpretative

rule they are always free to choose otherwise.”) Internal

memoranda bear even less official weight since they are

not intended for public scrutiny. See Morton v. Ruiz,

supra. At most, the evidence in this case suggests that a

course of action was followed by HHS administrators be-

cause the internal memoranda involved are from legal

counsel.“ It would have been equally warranted for ad-

ministrators to have departed from that advice, especially

to the extent internal documents were inconsistent with

the statute. Morton v. Ruiz, 415 U.S. at 237 (“In order

for an agency interpretation to be granted deference, it

must be consistent with the congressional purpose“) 2

20In seeking to maintain the importance of a 1971 internal

memorandum authored by HHS attorney Joel Mangel, due to its

contemporaneity with Title X’s passage, petitioners cite four cases.

Not one involves contemporaneous interpretation similar to this

memorandum. NLRB v. United Food & Commercial Workers, 484

U.S. 112, 124 n.20 (1987) (contemporaneous regulations); EEOC

v. Associated Dry Goods Corp., 449 U.S. 590, 600 n.17 (1981)

(contemporaneous regulations); Bankamerica Corp. v. United

States, 462 U.S. 122, 130 (1983) (policy of not enforcing against

certain defendants since statute’s inception). In the fourth case,

this Court affirmatively asserted the superiority of regulations to

“interpretive rulings.” Davis v. United States, 110 8. Ct. at 2022.

21 Besides contradicting Title X. the Guidelines also contradict

the broader -ederal policy favoring childbirth over abortion by

encouraging abortion activities in programs receiving federal

financial assistance (see Harris v. McRae, 448 U.S. 297 (1980)).

One should extend a broad reading to the abortion restriction in

order to protect the federal policy disfavoring abortion. See

Webster v. Reproductive Health Services, 109 8. Ct. 3040, 3052

(1989) (“[T]he State need not commit any resell to facilitat-

ing abortions, even if it can turn a profit by doing e (emphasis

added)

17

In any event, as both lower courts in this case recog-

nized, the HHS Secretary was not bound to follow such

advice. Sullivan, 889 F.2d at 409; Bowen, 690 F. Supp.

at 1270-72.

As the first binding interpretation of Section 1008 is-

sued under HHS rulemaking powers, the challenged reg-

ulations are judged only by the ordinary standards ap-

plicable to notice and comment rulemaking. So long as

these rules are reasonable and lawful, they survive ju-

dicial review. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. at 415, 416. See Vermont Yankee Nu-

clear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519 (1978). Reasonableness is a minimal

standard: if any set of facts appears in the record to

support the rules, the agency must prevail. The Court

“need not conclude that the agency construction was the

only one it permissibly could have adopted. . . or even

the reading the court would have reached if the question

initially had arisen in a judicial proceeding.” Chevron,

467 U.S. at 843 n.11; Udall v. Tallman, 380 U.S. 1, 16

(1965). Lawfulness is measured by compliance with rel-

evant statutory and constitutional restrictions. When

regulations, whether initial or revised, are “fully con-

sistent” with “the language and history” of the statute,

as the HHS regulations are in this case, they “must be

upheld” by a reviewing court. Sullivan, 889 F.2d at 409.

That considered judgment by the Second Circuit reflects

proper application of Supreme Court precedent to the

particular facts of this case.

The staff Guidelines called referral for elective abor-

tion a related “required service“ and not a “method of

family planning.” Guidelines 8.6, supra. By so designat-

ing it, the staff effectively avoided Section 1008’s pro-

scription by simply defining away the res‘:iction. The

2 A sufficient basis for the rules is set forth in the rulemaking

documents and comments and will not be restated here. See 58

Fed. Reg. 2944 (Feb. 2, 1988).

18

Guidelines, which bound only HHS staff in charge of re-

viewing grant applications and grantee performance, ef-

fectively “required” as a condition of funding that

grantees refer for abortion as an “other required serv-

ice” whenever requested or whenever grantee personnel

were inclined to do so. The Department, as distinguished

from the staff, never issued binding and clear regula-

tions on the Title X abortion restriction until 1988.

For the reasons stated above, the 1988 rules separating

Title X from abortion services, and prohibiting counsel-

ing and abortion advocacy, survive proper statutory

analysis. Indeed, those regulations were the first correct

interpretation of Section 1008 ever offered by HHS or

its staff. They are easily within the discretion of the

ager y responsible for promulgating regulations imple-

menting Section 1008.

II. THE TITLE X REGULATIONS DO NOT INFRINGE

CONSTITUTIONAL RIGHTS.

Petitioners complain that the Title X regulations con-

front those clinics receiving non-Title X funds for abor-

tion counseling, referral, or advocacy with two untenable

alternatives: compliance with an unduly burdensome

separation requirement or loss of Title X funding. They

complain that each of these alternatives infringes their

exercise of constitutional rights. In effect, petitioners in-

sist on the ability to spend Title X program-related funds

in any manner. To sustain their argument, they distort

the realities of government grant funding by attempting

to distinguish among the sources of funds for the Title X

program as the basis for their complaint, and they de-

mand constitutional relief where none is warranted.

A. Freedom of Speech is Not Abridged by the Title X

Regulations.

Within the limits of its constitutional authority, Con-

gress has broad discretion to formulate social services

programs. It is the considered judgment of the Congress,

—— peers ae

19

implemented by the Executive Branch, that childbirth is

preferred over abortion. This policy is refiected in fund-

ing restrictions generally (Harris v. McRae) and in

federal family planning programs. Both federal family

planning programs, Title X, the statute at issue here,

and Title XX, the Adolescent Family Life Act (hereafter

“AFLA”),* fund family planning and pregnancy serv-

ices without an abortion component. Petitioners claim

that exclusion of abortion services from Title X pro-

grams constitutes an unconstitutional penalty. But it is

Congress, and not petitioners, that establishes the pa-

rameters of such government programs. As this Court

observed in Maher v. Roe, 432 U.S. 464, 475 (1977):

There is a basic difference between direct state in-

terference with a protected activity and state encour-

agement of an alternative activity consonant with

legislative policy.

See also Webster v. Reproductive Health Services, 109

S. Ct. 3040, 3052 (1989). Because the expenditure of

federal funds and conduct of federal programs may be

limited by congressional policies favoring childbirth over

abortion, the lower courts properly affirmed the Title X

regulations against constitutional challenge. The district

court correctly concluded, and the court of appeals

agreed, that no grantee would be improperly deprived of

any “rights” to speak about abortion. Sullivan, 889 F.2d

at 412. “The regulations do not prohibit or compel

speech. They grant money to support one view and not

another, but that is quite different from infringing on

free speech.” Bowen, 690 F. Supp. at 1274.

Federal benefit programs are in the nature of “con-

tracts.” Pennhurst State School and Hospital v. Halder-

man, 451 U.S. 1, 17 (1981).* On one side of any po-

% 42 U.S.C. §§ 300z, 300z-5(a) (21) (1982).

As the Supreme Court stated in Pennhurst, 451 U.S. at 17:

Legislation enacted pursuant to the spending power is much

in the nature of a contract: in return for federal funds, the States

20

tential Title X “contract” is the government, extending

an offer containing the above-described terms. On the

other side is the potential grantee who can accept or re-

ject the extended offer according to its terms. Of course,

part of the decision to accept involves a separate deter-

mination by the grantee whether to raise and commit

non-federal funds to the purposes of the project, e. g.,

family planning services along the lines of the program.“

Only when a grantee chooses to commit its funds (ap-

proximately 10% of the program’s costs, but sometimes

more)* will the grant restrictions be both accepted and

enforceable. Once committed, those funds are as much

“Title X project funds” as the grant itself. 42 C. F. R.

59.2 (1989). This result is consistent with this Court's

earlier holding in Grove City College v. Bell, 465 U.S.

555, 571 (1984) (interpreting program or activity“),

that conditions applicable to federally funded programs

also restriet privately funded activities within the pro-

gram. 465 U.S. at 571 n.21.

It follows then that any so-called “private” funds a

Title X project possesses derive logically from the Title

X grant. HHS is not denying a government benefit to

grantees because of their exercise of protected speech

with private funds. By enforcing the statute, HHS de-

nies them unrestricted use of funds generated to support

a federal program. See Bowen, 690 F. Supp. at 1273,

agree to comply with federally imposed conditions.” See also Bob

Jones University v. Johnson, 396 F. Supp. 597 (D.S.C. 1974), aff'd

mem., 529 F.2d 514 (4th Cir. 1975).

*° Petitioners unsuccessfully attempt to diminish the significance

of federal grant funds in Title X programs by citing statistics

showing that such funds do not constitute the largest percentage

of certain agencies’ total “family planning programs” or total

sources of support. See Pet. Brief at 25-26 n.43, 26 n.44, 3 n.5.

But petitioners’ figures do not represent how significant a percen-

tage of the Title X programs government funds represent—com-

monly 90% or more of the funds of each Title X program.

*6 See 42 U.S.C. § 300a-4 (a) (Section 1006).

21

1274. To allow non-federal funds, generated to enable

participation or acceptance of the grant, to dictate the

conduct of the federal project, eviscerates the federal in-

tent and subverts the federal purpose.

Potential Title X grantees cannot unilaterally re-

formulate” the terms of the government’s offer, and pro-

ceed to accept it as reformulated. A grantee cannot de-

cide that it will sponsor a program offering abortion as

a method of family planning and that the government

will contribute public funds to that program. This is

analogous to holding that grantees of a federal program

established to combat drug use could use their 10% non-

federal funds to advocate decriminalization of illegal sub-

stances. See Regan v. Taxation With Representation,

461 U.S. 540, 546 (1983). This approach to federal

grants was soundly rejected by this Court in Grove City

College v. Bell, supra. There the College and some of its

Students claimed that Congress could not condition the

receipt of federal financial aid upon forbearance from

certain First Amendment associational rights. This

Court framed the issue in contract language and sum-

marily resolved it:

Grove City’s final challenge to the Court of Appeals’

decision—that conditioning federal assistance on

compliance with Title IX infringes First Amend-

ment rights of the College and its students—war-

rants only brief consideration. Congress is free to

attach reasonabie and unambiguous conditions to

federal financial assistance that educational institu-

tions are not obligated to accept [citing Pennhurst

v. Halderman, supra]. Grove City may terminate

its participation in the BEOG [federal educational

assistance] program and thus avoid the require-

ments of §901(a) [the antidiscrimination provi-

sion]. Students affected by the Department’s action

may either take their BEOG’s elsewhere or attend

Grove City without federal financial assistance.

Id. at 575-76. Similarly, forbearance from abortion ad-

vocacy, counseling and referral, in the context of a Title

22

X project, is not a price paid for receiving a benefit but

an essential feature of the federal government’s family

planning programs. To claim otherwise implies that pro-

posed recipients of federal grants could demand their re-

ceipt on terms unilaterally fashioned by the grantees.’

Petitioners would force the federal government to

grant them Title X funds for use in programs contra-

vening the only specific prohibition set forth by Congress

—that abortion not be employed as a method of family

planning. Petitioners claim that the government is pre-

suming to regulate the content of speech by insisting

upon the non-performance of certain abortion-related ac-

tivities with private funds. But, like tne federal finan-

cial assistance at issue in Grove City, Title X funds are

not monies which grantees are “obligated to accept.“

27 In Bowen v. Kendrick, 487 U.S. 589 (1988), now on remand

to the U.S. District Court, a group of plaintiffs attacked the con-

stitutionality of the AFLA. Counsel for the plaintiffs in Kendrick

are provided by the same American Civil Liberties Union Founda-

tion Project that represents petitioners in this case. Plaintiffs in

Kendrick complained that the statute (as opposed to the grants

themselves) fails to restrict grantees from providing information

about religion to clients in their AFLA programs. 487 U.S. at

597. Plaintiffs there would apply a broad restriction to all pro-

gram funds, regardless of the source, and to all activities, even

those outside the AFLA program. See Appellees’ and Cross-

Aprilants’ Brief in the United States Supreme Court, Nos. 87-

253, 87-431, 87-462 & 87-775, at 37-41. Plaintiffs in Kendrick

claim the Establishment Clause of the First Amendment as the

basis for their insisten“e on prohibiting religious speech in AFLA

programs, but their definition of religious speech includes speech

concerning abortion and, necessarily, contraception. Id. at 48-49,

56-57. To adopt petitioners’ line of argumert in this case would

allow the AFLA grantees in Kendrick simply to ignore any pro-

gram content restrictions and insist that they have free speech

and free exercise rights to use private funds to teach “religious

dogma” in connection with their AFLA programs. Such use of

conflicting first amendment interpretations in order to advance a

pro-abortion agenda trivializes the constitutional freedoms of

speech and religion.

i ba

23

465 U.S. at 575. Thus, grantees are not presented with

a dilemma involving choices of a constitutional dimen-

sion. They are given the opportunity to participate in a

program advancing certain goals and not others.

Allowing the “private,” unlimited abortion advocacy

or referral petitioners seek would distort the essential

message of the government’s family planning policy.”*

It would threaten the government’s credibility and re-

lated interests and hinder the effectiveness of the family

planning program. In other words, because a Title X

program is part of the government’s overall family

planning policy, any abortion facilitation or advocacy in

the context of a Title X program would necessarily re-

flect upon the government’s policies and weaken the over-

all family planning program. Indeed, as recited in the

1970 legislative debate and confirmed afterward in

studies, “ facilitating access to abortion as a “backup”

birth control method undermines the effectiveness of

pregnancy prevention efforts. The government’s legiti-

mate interest in the enforceability and credibility of its

own programs is evident. The objective of the regula-

tions is not to suppress abortion-related speech but to

protect public programs from private corruption. Such

regulations do not infringe First Amendment rights.

20 Again, an analogy from the Kendrick case is instructive. If

Title X grantees are constitutionally entitled to violate grant

restrictions by injecting some of their own monies intp the provi-

sion of services, then AFLA grantees must have the same, if not

greater, constitutional ‘right to discuss religious issues during

client sessions not paid for with grant moneys, to use private

funds to publish religious materials for their clients, and to refer

AFLA clients to clergy outside the program for spiritual counsel-

ing. No one in that case is yet contending for such extraordinary

privileges, but if petitioners are successful with such arguments

here, there is no reason similar arguments should not be proffered,

and prevail, in Kendrick.

20 See note 7 and accompanying text, supra.

24

B. A Pregnant Woman’s Relationship With Her Physi-

cian is Not Burdened by the Regulations.

Title X concerns only family planning, which involves

pre-pregnancy services. By definition, abortion does not

facilitate or prevent pregnancy; it is a procedure em-

ployed when preventive measures have not been used or

have failed. Abortion is therefore beyond the scope of

Title X. HHS recognized this simple fact in the Back-

ground section of its introduction to the proposed rules

when it cited relevant legislative history in support of its

rulemaking. 52 Fed. Reg. 33210-11 (Sept. 1, 1987).

For example, the Conference Committee reported in con-

nection with enactment of Title X:

{I]t is, and has been the intent of both Houses that

funds authorized under this legislation be used only

to support preventive family planning services, in-

fertility services, and other related medical, infor-

mationai, and educational activities. The conferees

have adopted the language contained in section 1008,

which prohibits the use of such funds for abortion,

in order to make clear this intent.

Conf. Rep. No. 91-1667, 91st Cong., 2d Sess. 8-9 (1970)

(emphasis added). This Court may decide, for this rea-

son alone, that petitioners’ argument that these regula-

tions interfere with a pregnant woman’s right to consult

with her physician concerning whether to choose child-

birth or abortion, falls far wide of the mark.” But

3° If Title X were a federal program designed to provide prenatal

care to pregnant women, petitioners might have some opening at

least for making their privacy argument, though it would fail.

That it would fail is indicated by this Court’s decision in Webster.

109 S. Ct. at 3050-53. The statutes at issue there clearly were

aimed at abortion and other pregnancy-related services, but plain-

tiffs’ attempts to overcome those statutory restrictions on provid-

ing abortion services were rejected, as were similar arguments in

Harris v. McRae and Poelker v. Doe, 432 U.S. 519, 521 (1977). In

the case at hand, petitioners’ arguments are similarly deficient, as

25

where Congress has explicitly limited a grant program

to pre- pregnancy services, and has excluded abortion

cifically to emphasize that intent, arguments —

what might be constitutionally mandated in a program

directed at pregnant women are completely irrelevant.“

Petitioners rely heavily on this Court’s decisions in

Akron v. Akron Center for Reproductive Health and

Thornburgh v. American College of Obstetricians &

Gynecologists * for their primary argument that the

HHS regulations interfere with a woman’s right to

choose abortion. See also Sullivan, 889 F.2d at 417

(Kearse, J., dissenting). Both cases, however, addressed

statutory schemes that came into effect only when a

woman was pregnant and seeking abortion; they were

not pre-pregnancy services programs. In addition, those

cases must be read in light of Webster’s recognition of a

diminished constitutional status for the abortion decision

and the enhanced strength of society’s interests in regu-

lating abortion throughout pregnancy. 109 S. Ct. at

3057-58.

In Webster, the majority opinion in Thornburgh came

under severe criticism, especially to the extent it relied

both lower courts determined (Sullivan, 889 F.2d at 411-13; Bowen,

690 F. Supp. at 1272-74), and they are wholly inappropriate in a

pre-pregnancy program.

For this reason, the majority of the court of appeals should

have explicitly disavowed, not acquiesced in, J udge Kearse’s asser-

tion in dissent that the regulations may impede a pregnant

woman’s exercise of her right of privacy. See Sullivan, 889 F.2d

at 411. Even if such a right properly extended to abortion, it is

not implicated by a federal program that has no pregnancy, let

alone abortion, component. It is more than questionable whether

privacy rights stretch so far. See Brief of the United States

Catholic Conference, Amicus Curiae in Webster v. Reproductive

Health Services, United States Supreme Court No. 88-605; Chopko,

Webster v. Reproductive Health Services: A Path to Constitutional

Equilibrium, 12 Campbell L. Rev. 181 (1990).

8? Respectively, 462 U.S. 416 (1983) and 476 U.S. 747 (1986).

26

on the trimester approach from Roe v. Wade to invali-

date restrictions on abortion availability. See 109 S. Ct.

at 3057-58 (Rehnquist, C.J., with White and Kennedy,

J.J.), 3063 (O’Connor, J., concurring), 3064 (Scalia, J.,

concurring). With regard to Akron, the plurality an-

nounced :

There is no doubt that our holding today will allow

some governmental regulation of abortion that would

have been prohibited under the language of cases

such as. Akron v. Akron Center for Reproductive

Health, Inc., supra.

Id. at 3058; see also id. at 3063 (O'Connor, J., concur-

ring), 3064 (Scalia, J., concurring). Therefore, even

when reviewing governmental regulation of abortion, ver-

sus pregnancy prevention, uncritical reliance on those

two opinions is unavailing.

Moreover, the specific regulations at issue here would

be permitted even if Thornburgh and Akron stood un-

scathed. A majority in Webster stated: “Maher, Poelker,

and McRae all support the view that the State need not

commit any resources to facilitating abortions, even if it

can turn a profit by doing so.” 109 S. Ct. at 3052

(emphasis added). With that sentence, this Court pre-

empted petitioners’ argument in this case that Title X

grantees must be permitted to facilitate abortions for

clients who seek them within Title X programs, as well

as the argument that matching funds can be applied to

any purpose, even purposes Congress expressly prohibited.

A grantee’s funding contribution is indisputably a re-

source committed to the program. As such, its use is

subject to Title X, and no constitutional right is impli-

cated by requirements that it be expended solely in fur-

therance of family planning activities and not to facili-

tate abortion.

Finally, no new obstacles to obtaining an abortion are

created by the Title X regulations. See Harris v. McRae,

448 U.S. at 315. This is underscored by the fact that the

27

intended beneficiaries of Title X are not required to per-

form or refrain from any activity. Webster, 109 S. Ct.

at 3052. It is merely the grantee that is required to re-

frain from abortion-related activity in the Title X pro-

gram. Their clients retain the choices they had prior

to the institution of the regulations at issue. Just as the

students in Grove City College had no right to have the

government finance their choice of a particular school,

Title X clients cannot claim a constitutional right to

have facilitation of their abortion decision subsidized by

government funds. Grove City, 465 U.S. at 576; see also

Taxation With Representation, 461 U.S. at 549. As this

Court announced in Maher, 432 U.S. at 474, and reiter-

ated in Webster, 109 S. Ct. at 3052: “[T]he State may

‘make a value judgment favoring childbirth over abortion

and. . . implement that judgment by the allocation of

public funds. The long overdue implementation

of Section 1008 of Title X by HHS represents just such

a judgment.

CONCLUSION

For the above reasons, the judgment of the United

States Court of Appeals for the Second Circuit should be

affirmed.

Respectfully submitted,

MARK E. CHOPKo *

General Counsel

PHILLIP H. HARRIS

Solicitor

UNITED STATES CATHOLIC CONFERENCE

3211 4th Street, N.E.

Of Counsel: Washington, D.C. 20017-1194

HELEN M. ALVARE (202) 541-3300

September 7, 1990 * Counsel of Record