# Amicus Curiae Brief — New York v. Sullivan (Nos. 89-1392, 89-1391) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0727%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 ## Text |} Supreme Court, US * FILED Nos. 89-1391, 89-1392 na 77 TS ANIOL, JR. CLERK Crna’ IN THE Supreme Court of the United Stated” OCTOBER TERM, 1990 Dr. IRVING RwST, et al., ie Petitioners, Dr. LOUIS SULLIVAN, or his successor, Secretary of the United States Department of Health and Human Services, Respondent. THE STATE OF NEW YORK, ef? ai., . Petitioners, Dr. LOUIS SULLIVAN, or his successor, Secretary of the United States Depariment of Health and Human Services, Respondent pod eG. SPO cit, On Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF TWENTY-TWO BIOMEDICAL ETHICISTS AS AMICI CURIAE SUPPORTING PETITIONERS CATHERINE L. FISK MICHAEL E. FINE DONOVAN LEISURE, ROGOVIN, DOUGLAS W. SMITH HUGE & SCHILLER CLYDE SPILLENGER 1250 24th Street, N.W. POWELL, GOLDSTEIN, FRAZER Washington, D.C. 20037 & MURPHY (202) 467-8300 1001 Pennsylvania Avenue, N.W Sixth Floor Washiiugton, D.C. 20004 (202) 347-0066 Counsel for Amici Curiae July 27, 1990 * Counsel of Record EES. Ve er reo nee 6 ES EL eee ey eT: ae WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 TABLE OF CONTENTS SUMMARY OF ARGUMENT |W. 2 eich cccciaaitsiasiniandiessiniadhitineitpniniigaianien 3 I. PATIENTS HAVE A CONSTITUTIONALLY PROTECTED LIBERTY INTEREST IN EXERCISING CONTROL OVER THEIR OWN MEDICAL TREATMENT DECISIONS, AND THAT INTEREST IS INFRINGED BY THE TITLE X COUNSELING AND REFFERAL I io cicicsiintaalachtbintnieptseildelecensented 3 A. Full and Informed Disclosure of Medical Options Is Integral to the Right of Patients to “Bodily Integrity” Recognized in Cruzan.. 4 B. The Medical Profession’s Ethical Standards Embody The Doctrine of Informed Consent and Embrace a Duty to Counsel Patients on All Legitimate Treatment Alternatives ........ 6 C. The Right to Complete and Accurate Medical Advice Is Embodied in State Informed Con- gh ESET EE tas ee Oe 13 D. The Patient’s Right to Receive from an Ad- : vising Physician Information Regarding All Medically Sound Alternatives Applies to Medical Decisions Relating to Procreation.... 16 E. Title X Restrictions on Counseling and Re- ferrals Infringe the Liberty Interest of Pa- tients in Making Informed Medical Deci- ii TABLE OF CONTENTS—Continued Il. NO STATE INTEREST JUSTIFIES THE IN- FRINGEMENT OF PATIENT LIBERTY IN- TERESTS CAUSED BY TITLE X COUNSEL- ING AND REFERRAL REGULATIONS ......... Ill. THE CONSTITUTION PROHIBITS FUND- ING RESTRICTIONS THAT IMPAIR A PA- TIENT’S RIGHT TO FULL AND ACCURATE MEDICAL INFORMATION ..........-----2-------1----0--+ 0) FL: | | |) Se Page 20 iii TABLE OF AUTHORITIES Cases: Akron v. Akron Center for Reproductive Health, CI oi cecnccccesessonsnnnatncnsccntocens Archer v. Galbraith, 18 Wash. App. 369, 567 P.2d EE Arkansas Writers’ Project, Inc. v. Ragland, 481 RESIS TE ee ee CO Bartling v. Superior Court, 163 Cal. App. 3d 186, 308 Cal. Retr. 220 (1964) ...................................... Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979) .... Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972) 2.0000. Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. ESS I Cruzan v. Director, Missouri Department of Health, — US. ——, 58 U.S.L.W. 4916 (1990) .....2, 5, Doe v. Bolton, 410 U.S. 179 (1978) 2.0000. Dumer v. St. Michael’s Hospital, 69 Wis. 2d 766, I A SOO Dunhom v. Wright, 423 F.2d 940 (3d Cir. 1970)... FCC v. League of Women Voters, 468 U.S. 364 SLES I a Gates v. Jensen, 92 Wash. 2d 246, 595 P.2d 1155 IEE SE SS MID es Se OS Harris v. McRae, 448 U.S. 297 (1980) ........0000.. In re Guardianship of Grant, 109 Wash. 2d 545, EE Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).... Jacobson v. Massachusetts, 197 U.S. 11 (1905) ...... Maher v. Roe, 482 U.S. 464 (1977) ....00000 McPherson v. Ellis, 305 N.C. 266, 287 S.E.2d 892 Ss numerous state court decisions in which information re garding pregnancy and childbirth have been deemed to be within a physician’s duty to disclose. For example, in Berman v. Allan, 80 N.J. 421, 431-33, 404 A.2d 8, 138-15 (1979), the New Jersey Supreme Court found a physi- cian liable for failing to inform parents of a child born with Down’s Syndrome of the amniocentesis procedure that would have detected the condition at a time when the pregnancy could have been aborted. Later, in Schroe- der v. Perkel, supra, the same court held that a doctor who had failed to disclose to his patient that her first child had cystic fibrosis and that there was a high risk that additional children might have the disease could be sued when the patient’s second child was born with the disease. In both cases, the New Jersey Supreme Court emphasized the physician’s duty to provide information that would have affected the mother’s decision whether to respond to a pregnancy by the alternative of childbirth or abortion.” 10 See also Phillips v. United States, 566 F. Supp. 1 (D.S.C. 1981) (United States liable in tort for failure of staff at navy 19 E. Title X Restrictions on Counseling and Referials Infringe the Liberty Interest of Patients in Making Informed Medical Decisions. It is undisputed that the Title X regulations governing counseling and referrals interfere with the ability of physicians in Title X projects to disclose relevant medical information to their patients, and the corresponding lib- | erty interest of the patients to receive that information. The retulations prohibit physicians at Title X projects even from mentioning abortion as a medical treatment or from identifying providers of abortion services. See 42 C.F.R. § 59.8(a) (1) (projects “may not provide counsel- ing concerning the use of abortion as a method of family planning’); id. at §59.8(a)(3) (prohibiting Title X projects from providing referral lists including “health care providers whose principal business is the provision of abortion’’). In some cases, the bar against providing full medical information to patients will put patients at serious med- ical risk. To take only the most obvious example, preg- nant women with certain complicating conditions (such as diabetes, hypertension, and cancer) may face serious health risks if they continue the pregnancy. See Brief Amici Curiae of the American College of Obstetricians and Gynecologists et al., Rust v. Sullivan (Nos. 89-1391, 89-1392). Yet, counseling with respect to pregnancy ter- mination would be precluded by the regulations in such medical hospital to give adequate genetic counseling to pregnant patient who subsequently gave birth to infant with Down’s Syn- drome); Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986) (holding doctor liable for negligent failure to disclose rubella in pregnant mother, where child was born with congenital deformities and mother would have had an abortion had she known of risk of birth defects caused by rubella during pregnancy); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (same); Dumer v. St. Michael’s Hospital, supra (same). 20 eases save when an “emergency” exists. See 42 C.F.R. §$ 59.8(a)(2)."" Many situations involving such health risks would not technically satisfy the-definition of “‘emer- gency,” which is left vague but appears from the exam- ples in the regulation to be limited to situations like an ectopic pregnancy. See 42 C.F.R. § 59.8(b) (2). There are many scenarios in which the Title X regu- lations would compel a physician to violate his or her legal and ethical obligations to provide patients facing particular health risks with full and accurate informa- tion about medical treatment options. Furthermore, it is important that the obligation to impart relevant informa- tion concerning pregnancy options is not limited to cases involving health risks but rather, as the guidelines of the American College of Obstetricians and Gynecologists state, applies to all medical decisions. The Title X reg- ulations severely restrict such counseling. It would be difficult to imagine a more flagrant interference with a patient’s right to accurate and complete information.'” Il. NOSTATE INTEREST JUSTIFIES THE INFRINGE- MENT OF PATIENT LIBERTY INTERESTS CAUSED BY TITLE X COUNSELING AND RE- FERRAL REGULATIONS. Once a “liberty interest” under the due process clause has been established, “whether [a party’s] constitutional rights have been violated must be determined by balanc- 11 The regulations provide that “[i]n cases in which emergency care is required, however, the Title X project shall be required only to refer the client immediately to an appropriate provider of med- ical services.” Id. 12 That health care professionals working at Title X projects would not themselves perform medical procedures does not make the counseling prohibition any less intolerable. As discussed above, a physician’s failure properly to counsel or to refer patients on whom a medical procedure ultimately will or should be performed by another is inconsistent with standards of informed consent. 21 ing his liberty interests against the relevant state inter- est.” Cruzan, 58 U.S.1.W. at 4920 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)). This analysis, in turn, depends on the interests asserted by the govern- ment. The government cannot identify a state interest sufficient to justify withholding from patients medically necessary information. The government has not to this point argued that, as a general matter, patients are better off with incomplete medical information. Nor has the agency suggested that it has an especially compelling interest in denying infor- mation only to poor women, who are the principal bene- ficiaries of Title X assistance. The sole governmental in- terest offered in support of the counseling and referral regulations is the government’s wish to promote child- birth and discourage abortion. This asserted interest is insufficient to justify so severe an infringement of pa- tient interests in full disclosure of medical options. By restricting the advice and information that physi- cians can legally provide to their patients, the Title X counseling and referral regulations seriously impair pa- tient’s rights to full and accurate medical information and make it virtually impossible for them to give their informed consent. Through the Title X program, the Department of Health and Human Services (HHS) es- tablishes physician-patient relationships. By initiating such a relationship of trust and then barring the physi- cian from providing full information, the government creates new obstacles to the patient’s exercise of her right to make informed medical decisions. First, in the medi- eal doctor-patient relationship, the patient places ultimate trust in the quality of the information received from the physician, and relies on that information being complete. See J. Katz, The Silent World of Doctor and Patient 142- 47 (1984). Moreover, because patients in the Title X projects generally have no other source of professional medical advice, they are especially reliant on receiving full disclosure. 22 The Title X regulations are in fact so intrusive that they verge on constituting intentional deception. To a substantial degree, the advice poor women receive and rely upon will be that of the federal government, not the independent medical judgment of their doctor. This turns traditional notions of the inviolability of the doctor- patient relationship on their head. Worse yet, in many cases, patients will not realize that they have been given incomplete information. There is no precedent for prohibiting the flow of infor- mation concerning any treatment—whether it be abortion, antibiotics, or surgery—that is generally regarded as medically indicated under appropriate circumstances and whose performance is legal under those circumstances. While the government may assert a variety of interests to support various types of regulation of individual medi- cal decisions, a baseline constitutional principle should be this: There is no substantial governmental interest in limiting medical information about medical procedures that are regarded as legitimate under prevailing medical standards. The government’s claimed interest in this case simply does not support its heavy-handed imposition of restrictions on counseling and referral, when weighed against a patient’s fundamental liberty interest at stake. Ill. THE CONSTITUTION PROHIBITS FUNDING RE- STRICTIONS THAT IMPAIR A PATIENT’S RIGHT TO FULL AND ACCURATE MEDICAL INFORMA- TION. | As the foregoing demonstrates, the federal government may not constitutionally intrude upon the sanctity of the physician-patient relationship by directly prohibiting physicians and health care professionals from informing their patients about all their valid treatment options. It is equally true that the Constitution bars indirect gov- ernmental efforts to reach this same result. 23 The government has argued that the Title X regulations are not subject to constitutional constraints because Title X is merely a funding program and does not directly regulate private conduct. But as this Court has repeat- edly observed, “even though a person has no ‘right’ to a valuable government benefit and even though the govern- ment may deny him the benefit for any number of rea- sons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected inter- ests ....” Perry v. Sindermann, 408 U.S. 593, 597 (1972). See also Speiser v. Randall, 357 U.S. 513 (1958). Contrary to this established precedent, the Second Cir- cuit concluded that the Title X counseling and referral restrictions could be sustained under authority of Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980). We disagree for two reasons. First, from a first amendment perspective, there can be little question that the Title X regulations constitute an im- permissible viewpoint-based restriction on speech. The regulations specifically target speech “concerning the use of abortion as a method of family planning,” 42 C.F.R. § 59.8(a) (1), and, as such, fall afoul of the Constitution. See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); FCC v. League of Women Voters, 468 U.S. 364 (1984).% Second, when seen in the light of the doctrine of in- formed consent and patient liberty interests in full medical disclosure, the Title X counseling and referral restrictions far exceed anything approved in Maher or McRae. Both Maher and McRae involved cases in which the federal government adopted a passive position, choos- ing not to support particular conduct or speech. But in 18 We concur with, and defer to, the more comprehensive treat- ment of this issue in briefs filed by petitioners and other amici in support of petitioners. 24 this case, HHS has affirmatively intervened in doctor- patient relationships to the detriment of the patients." The saving distinction drawn in Maher was between “direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” 432 U.S. at 475 (footnote omitted). Similarly, in McRae the court observed that “although government may not place obstacles in the path of” an individual’s exercise of constitutional rights, “it need not remove those not of its own creation.” 448 U.S. at 316. In sharp contrast to these cases, Title X counseling and referral regulations constitute a “direct state interference with a protected activity.” These regulations do not merely favor childbirth over abortion. They require phy- sicians to give partial, misleading medical information in direct contravention of their ethical and legal obliga- tions, placing at least some patients in a worse position than if there had been no Title X funding at all. It therefore cannot be said, in contradistinction to Maher and McRae, that the regulations leave Title X patients in “no worse position” than if no funds at all were provided. ‘* These cases are also distinguishable because they involved only the use of federal funds, whereas the challenged Title X regulations affect grantees’ use of state and private funds as well. See 42 C.F.R. § 59.2 (1989) (“Title X project funds include all funds allocated to the Title X program, including but not limited to grant funds, grant-related income or matching funds.”). This Court spe- cifically cautioned in both Maher and McRae that its analysis would change if funding conditions burdened a recipient’s ability to inde- pendently exercise her constitutional rights. See Maher, 432 U.S. at 474 n.8; McRae, 448 U.S. at 317 n.19. . ttl ee a — 25 CONCLUSION The restrictions on counseling and referrals constitute an unprecedented effort by the government to exploit the traditional trust of the physician-patient relationship in order to steer needy women’s health care decisions in the direction of a medical treatment favored by the govern- ment. In so doing, the government forces physicians and health care professionals in Title X projects to provide incomplete and thereby misleading medical advice, and thus to violate the most basic principles of medical ethics and common law. The government has no legitimate countervailing interest in interfering with patients’ recog- nized liberty interest in making informed medical deci- sions. For the foregoing reasons, the judgment of the Court of Appeals should be reversed. Respectfully submitted, CATHERINE L. FISK MICHAEL E. FINE * DONOVAN LEISURE, ROGOVIN, DOUGLAS W. SMITH HuGE & SCHILLER CLYDE SPILLENGER 1250 24th Street, N.W. POWELL, GOLDSTEIN, FRAZER Washington, D.C. 20037 & MURPHY (202) 467-8300 1001 Pennsylvania Avenue, N.W. Sixth Floor Washington, D.C. 20004 (202) 347-0066 Counsel for Amici Curiae July 27, 1990 * Counsel of Record APPENDIX la APPENDIX TWENTY-TWO BIOMEDICAL ETHICISTS * AMICI CURIAE Frederick R. Abrams, M.D. University of Colorado at Denver, Denver, CO George J. Annas, J.D., M.P.H. Boston University School of Public Health, Boston, MA Ronald E. Cranford, M.D. Hennepin County Medical Center, Minneapolis, MN Rebecca Dresser, J.D. Case Western Reserve University, Cleveland, OH Sherman Elias, M.D. University of Tennessee, Memphis, TN Janet Fleetwood, Ph.D. Medical College of Pennsylvania, Philadelphia, PA Leonard H. Glantz, J.D. Boston University School of Public Health, Boston, MA Susan L. Goldberg, J.D. Widener University School of Law, Wilmington, DE Jane Greenlaw, J.D. University of Rochester School of Medicine, Rochester, NY Jay Katz, M.D. Yale Law School, New Haven, CT Carol Levine, Executive Director Citizens Commission on AIDS, New York, NY Joanne Lynn, M.D. George Washington University, Washington, D.C. Ruth Macklin, Ph.D. Albert Einstein College of Medicine, Bronx, NY * Note: Institutional affiliations listed for identification only. 2a Wendy K. Mariner, J.D., M.P.H. Boston University School of Public Health, Boston, MA Donald N. Medearis, Jr., M.D. Massachusetts General Hospital, Boston, MA Robert M. Nelson, M.D. University of California at San Francisco, San Francisco, CA Lois LaCivita Nixon, Ph.D., M.P.H. University of South Florida, Tampa, FL Rochelle N. Shain, Ph.D. University of Texas Health Science Center, San Antonio, TX Marjorie M. Shultz, M.A.T., J.D. Boalt Hall School of Law, University of California, Berkeley, CA Jeffrey Spike, Ph.D. University of Rochester School of Medicine, Rochester, NY Judith P. Swazey, Ph.D., President The Acadia Institute, Bar Harbor, ME Herman 8S. Wigodsky, M.D., Ph.D. University of Texas Health Science Center, San Antonio, TX --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0727%3A14. Public record. Not legal advice.