Amicus Curiae Brief — New York v. Sullivan (Nos. 89-1392, 89-1391)

Suaieme Court, Us.

FILED

IN THE | 77 om

Supreme Court of the United State we" *

OCTOBER TERM, 1990 —

. -..

)

Nos. 89-1391, 89-1392

Dr. IRVING Rust, on behalf of himself, his patients, and

all others similarly situated, Dk. MELVIN PADAWER,

on behalf of- himself, his patients, and all others simi-

larly situated, MEDICAL AND HEALTH RrsrancH Asso-

CIATION OF NEW YorkK City, INC., PLANNED PARENT-

HOOD OF NEW YorK Ciry, INC., PLANNED PARENTHOOD

OF WESTCHESTER’ ROCKLAND, and HEALTH SERVICES

OF HUDSON COUNTY, NEW JERSEY,

V.

Dr. LOUIS SULLIVAN, or his successor,

Secretary of the United States Department

of Health and Human Services,

Respondent,

THE S?ATE OF NEW York, THE Ciry OF NEW YORK,

THE New YORK HEALTH & HOSPITALS CORP.

y Pr tit ie rs,

Dkr. LOUIS SULLIVAN, or h ‘essor, Secretary of the

United States Department of Health and Human Services,

On Writ of Certiorari to the l nited States

Court of Appeals for the Second Circuit

BRIEF OF

REPRESENTATIVES PATRICIA SCHROEDER, ET AL.

AS AMICI CURITAE IN SUPPORT OF PETITIONERS

| Additional Amici Continued on Inside Cover |

DAVID M. BECKER *

JOAN M. GERHART

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Amici Curiae

Dated: July 27, 1990 * Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

it°4 See

OLYMPIA SNOWE, NITA LOWEY, BILL GREEN,

GARY ACKERMAN, CHET ATKINS, LES AuCOIN,

JIM BATES, ANTHONY BEILENSON,

HOWARD BERMAN, SHERWOOD BOEHLERT,

RICK BOUCHER, BARBARA BOXER,

GEORGE E. BROWN, JR., JOHN BRYANT,

ALBERT BUSTAMENTE, BENJAMIN CARDIN,

TOM CARPER, WILLIAM CLAY, CARDISS COLLINS,

JOHN CONYERS, JR., GEORGE W. CROCKETT, JR.,

PETER DeFAZIO, RONALD DELLUMS, JULIAN DIXON,

MERVYN DYMALLY, DON EDWARDS,

THOMAS DOWNEY, ELIOT ENGEL, MIKE ESPY,

LANE EVANS, DANTE FASCELL, WALTER FAUNTROY,

VIC FAZIO, EDWARD FEIGHAN, HAROLD FORD,

BARNEY FRANK, BILL FRENZEL, SAM GEJDENSON,

BENJAMIN GILMAN, WILLIAM GRAY, III,

AUGUSTUS HAWKINS, CHARLES HAYES, ;

STENY HOYER, NANCY JOHNSON, HARRY JOHNSTON,

BEN JONES, ROBERT KASTENMEIER,

BARBARA KENNELLY, PETER KOSTMAYER,

WILLIAM LEHMAN, SANDER LEVIN, MEL LEVINE,

JOHN LEWIS, RONALD MACHTLEY,

EDWARD MARKEY, MATTHEW MARTINEZ,

ROBERT MATSUI, JIM McDERMOTT, GEORGE MILLER,

JIM MOODY, BRUCE MORRISON.

CONSTANCE MORELLA, ROBERT MRAZEK,

STEPHEN NEAL, MAJOR R. OWENS, FRANK PALLONE,

DONALD PAYNE, NANCY PELOSI,

JOHN EDWARD PORTER, DAVID PRICE,

MARTIN SABO, PATRICIA SAIKI, JAMES SCHEUER,

CLAUDINE SCHNEIDER, CHARLES SCHUMER,

JOSE SERRANO, DAVID SKAGGS, LOUISE SLAUGHTER,

LAWRENCE SMITH, STEVEN SOLARZ,

FORTNEY PETE STARK, LOUIS STOKES,

GERRY STUDDS, ESTABAN TORRES,

EDOLPHUS TOWNS, . AMES TRAFICANT,

MORRIS UDALL, JOLENE UNSOELD, HENRY WAXMAN,

TED WEISS, ALAN WHEAT, HOWARD WOLPE,

RON WYDEN, SIDNEY YATES;

SENATORS BROCK ADAMS, DANIEL AKAKA,

BILL BRADLEY, QUENTIN BURDICK, JOHN CHAFEE,

WILLIAM COHEN, ALAN CRANSTON,

CHRISTOPHER DODD, JAMES JEFFORDS,

HOWARD METZENBAUM, BARBARA MIKULSKI,

BOB PACKWOOD, CLAIBORNE PELL. DONALD RIEGLE,

PAUL SIMON, TIMOTHY WIRTH,

AND FORMER SENATOR GAYLORD NELSON

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

INTEREST OF AMICI CURIAE

INTRODUCTION

SUMMARY OF ARGUMENT ..

ARGUMENT ....

I.

Il.

THE UNAMBIGUOUS LANGUAGE OF

TITLE X IS INCONSISTENT WITH THE

SECRETARY’S REGULATIONS PROHIBIT-

ING GRANTS TO PROGRAMS THAT PRO-

VIDE COUNSELING OR REFERRAL FOR

ABORTION .............

A. Section 1008 Prohibits the Use of Title X

Funds Only for Programs in Which “Abor-

tion” Is a Method of Family Planning

EVEN IF SECTION 1008 IS AMBIGUOUS,

THE SECRETARY’S REGULATIONS ARE

NOT BASED UPON A REASONABLE CON-

STRUCTION OF THE STATUTE

A. The Secretary’s Interpretation of Section

1008 Is Not Entitled to the Usual Deference

B. The Secretary’s Regulations Are Not Based

Upon a Permissible Construction of Section

UE itSeiale iets

1. The Secretary’s Interpretation of Section

1008 Thwarts the Overriding Purpose of

Title X " -

The Secretary’s New Regulations Are

Inconsistent with the Contemporaneous

and Consistent Administrative History

of Section 1008

bo

3. Subsequent Actions by the Congress Are

Consistent with the Contemporaneous

Legislative and Administrative History

Page

9

15

ii

TABLE OF CONTENTS—Continued

a. Congress Has Been Well Aware of the

Department’s Interpretation of the

Statute _.. pe a

b. Congress neousialll Has Reauthor-

ized Funds for Title X .-

c. Congress Repeatedly Has Refused To

Enact Legislation that Would Impose

the Restrictions the Secretary Now

Seeks To [impose ......c-c<censsseee

Ill. THE SECRETARY’S RESTRICTIONS ON

THE PHYSICAL LOCATION OF TITLE X

GRANTEES ARE CONTRARY TO STATU-

TORY INTENT AND ARE AN IRRATIONAL

RESPONSE TO A NONEXISTENT PROB-

Fa _ecavaseteeceseesseeeesesesensesuuianinnnnnnn

A. The Requirement of Physical Separation Is

Unsupported by Any Rational Consideration

of the Connection Between the Facts Avail-

able to the Secretary and His Chosen Regu-

latory Meamis ............<:--cecccon<s:-=see

B. The Secretary’s Failure To Consider the

Oppressive Cost of the Physical Separation

Requirement Renders the Requirement Arbi-

trary and Capricious ....................0.—————n

C. The Regulation Frustrates Statutory Intent

To Facilitate Provision of Health Care Serv-

ices to Title X Patiowutes ..:.......<..cc.sceeee

1. Title X Is Intended To Integrate, to the

Maximum Extent Feasible, Family Plan-

ning and Other Health Care Programs..

2. The Secretary’s Drastic Physical Separa-

tion Requirements Frustrate the Statu-

tory Goal of Integration of Family Plan-

ning Services ........-.<c.<s1:-<ss.sss0eneee

CONCLUSION ..........-.-00-2s0csesrecss=seessnsnsssssneensna

Page

16

18

19

22

25

27

27

29

39

iii

TABLE OF AUTHORITIES

CASES Page

Andrus v. Glover Construction Co., 446 U.S. 608

(1980) . ris caida ce nocnccassinseveseecaxe.s- 5

Board of Governors v. Dimension Financial Corp.,

Tee oc cunecececererence 4

Bob Jones University v. United States, 461 US.

EEE STE oS 16

_ Bowen v. American Hospital Association, 476 U.S.

EEE EE 23

Burlington Truck Lines, Ltd. v. United States, 371

U.S. 156 (1962) .......... tt esishinntsocccsensese 23, 27

Chemical Manufacturers Association v. Natural

Resources Defense Council, Inc., 470 U.S. 116

Neen eee en cecocececcee. covenccess 7

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ....................4, 5, 7,9

EEOC v. Associated Dry Goods Corp., 449 U.S. 590

Neen occ cceceussenen: a x

General Electric Co. v. Gilbert, 429 U. s. 125

(1976) .. Sone 7

Grove City College t v. . Bell, 465 U. S. 555 (1984). 18

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 7,9

Kay v. FCC, 443 F.2d 638 (D.C. Cir. 1970) 0... 16

Lindahl v. OPM, 470 U.S. 768 (1985) . . 15

Merrill Lynch, Pierce, Fenner & Smith v. Curran,

Neen ne csnceccceneceeccacceceee 15

Miller v. Youakim, 440 U.S. 125 (1979) os OER x

Morton v. Ruiz, 415 U.S. 199 (1974) ................. . 7

Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Co., 463 U.S.

29 (1983) .. a es © © 8 yy

NLRB v. United ‘Food & Commercial Workers

rr Mee CROEP ...........-..-ecn----. 9

North Haven Board of Education v. Bell, 456 U.S:

Nee TS nendereceaccenss 16

Piedmont & Northern Railway v. ICC, 286, US.

Neen en caisseckecensneceess 5

Planned Parenthood v. Montana, 648 F. Supp. 47

Neen ee nc ccwnceaceee oe. 28

iv

TABLE OF AUTHORITIES—Continued

Page

Public Employees Retirement System v. Betts, 492

US. —<———, 168 B. Cb; BOS CEC OD cncecacicnescasscs-s;

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......

Udall v. Tallman, 380 U.S. 1 (1965) .

United States ex rel. TVA v. Two Tracts of Lend,

456 F.2d 264 (6th Cir.), cert. denied, 409 U.S.

887 (1972) ....

United States v. Riverside Bayview Homes, Inc.,

ee a eee

United States v. Rutherford, 442 US

. 544 (1979)

United States v. Shimer, 367 U.S. 374 (1961)

United States v. Vogel Fertilizer Co., 455 U.S. 16

(1982)...

Valley Family Planning v. v. “North Dakota, 661 F.2d

99 (8th Cir. 1981)

Watt v. Alaska, 451 U.S. 259 (1981) .

STATUTORY MATERIALS

2 U.S.C. § 441e (1988)

Title X, 42 U.S.C. § 300 et seq. (1982 & West Supp.

1990) . .

42 U.S.C. § 300a-5 (1982) -

RULES AND REGULATIONS

41 C.F.R. § 60 et seq. (1989)

36 Fed. Reg. 18,465-66 (1971) .

52 Fed. Reg. 33,214 (1987)

GS Fed. Rew, SUNE-41 (1008) aac.

aa

25

14

25, 26

passim

LEGISLATIVE MATERIALS

Pub. L. No. 91-572, 84 Stat. 1504 (1970) _..____5, 9, 16, 27

Pub. L. No. 94-63, Title I], 89 Stat. 304 (1975) ...... 17

116 Cong. Rec. 10,278 (1970) ...000... 10

116 Cong. Rec. 24,002 (1970) ..........:.............. sapuagats 13

216 Comm. Rec. B6,G0S6 CIGTO) ...--i00<.--0-ccs0-20secceeccnesees. 10

116 Cong. Rec. 37,375-88 (1970)... cost Dy Sa OO

120 Cong. Rec. 21,687-95 (1974) 19

120 Cong. Rec. 31,452-58 (1974) 19

121 Cong. Rec. 9,790 (1975) ..............0........... 16

v

TABLE OF AUTHORITIES—Continued

121 Cong. Rec. 20,863-64 (1975) _.............-.....

124 Cong. Rec. 31,243-46 (1978) ..

124 Cong. Rec. 37,044-48 (1978) eS

Senate Republican Policy Committee, The Hyde

Amendment: A Legislative History of Abortion

Funding Restrictions on the Labor—HEW Ap-

propriations Bill, reprinted in 127 Cong. Ree.

10,677 (1981) -

131 Cong. Rec. 28, 166 (1985) -

133 Cong. Rec. H12,004-05 (daily of. Becoubion 21,

1987)

H.R. Conf. Rep. No. 1524, 93d Cong., 2d Sess.

(1974)

H.R. Conf. Rep. No. 960, 99th Cong., 2d Sess.

(1986) .

H.R. Conf. Rep. No. 498, 100th Cone. Ist. Sess.

(1987), reprinted in 133 Cong. Ree. 12,709

(1987)

H.R. Rep. No. 1472, 91st C ong., od Sess. (1970)

H.R. Rep. No. 1161, 93d Cong., 2d Sess. (1974)

H.R. Rep. No. 159, 99th Cong., Ist Sess. (1985) — 16, 20, 24

H.R. Rep. No. 403, 99th Cong., Ist Sess. (1985)

S. Rep. No. 1004, 91st Cong., 2d Sess. (1970)

S. Rep. No. 29, 94th Cong., Ist Sess. (1975)

Family Planning Services: Hearing on H.R. 15159,

H.R. 9107, H.R. 9108, H.R. 9109, H.R. 15691,

H.R. 11123 and S. 2108 Before the Subcommittee

on Public Health and Welfare of the House Com-

mittee on Interstate and Foreign Commerce,

91st Cong., 2d Sess. (1970) a eS

Report of the Secretary of Health, Education and

Welfare Submitting Five-Year Plan for Family

Planning Services and Population Research Pro-

grams for the Special Subcommittee on Human

Resources of the Senate Committee on Labor and

Public Welfare, 92d Cong., Ist Sess. (1971)

Page

19

20

| 20, 29

17, 28

11,12

. 17, 28

F

vi

TABLE OF AUTHORITIES—Continued

BOOKS, ARTICLES & MISCELLANEOUS

G.A.O., A Glossary of Terms Used in the Federal

Budget Process (1981) ........... LAPD ISPS Op mip OER

3 N. Singer, Statutes and Statutory Construction

OS SD SIN Gs TID eccticecmepetvccosncccnsescescnssionie

George, The Evolving Law of Abortion, 23 Case

WH Bee Ta, Thee. TOD CG TaD noone ccccivceseressvccevcsse.s.

Note, A Survey of the Present Statutory and Case

Law on Abortion: The Contradictions and the

Problems, 1972 U. Ill. L. Forum 177 ................. .

Roemer, Abortion Law Reform and Repeal: Legis-

lative and Judicial Developments, 61 Am. J. Pub.

Betts BD CCM RTE D ancececessccvcscecsccccssnccencrezs

Comments of Chairman John D. Dingell, Commit-

tee on Energy & Commerce, on Proposed Rules

42 CFR Part 59—Federal Register Notice, Sep-

tember 1, 1987 (October 14, 1987)

36 Congressional Quarterly Almanac 467 (1980) .

Congressional Quarterly Weekly Report (Decem-

OO RRR REREAD at Ne td ADDR ae ae

Rules of the House of Representatives, 101st Cong.,

Fe See CD CIID as, cvssechsccuscosntcsonssoesesssavns

Page

19

La |

10

10

10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 89-1391, 89-1392

Dr. IrviING Rust, on behalf of himself, his patients, and

all others similarly situated, Dr. MELVIN PADAWER,

on behalf of himself, his patients, and all others simi-

larly situated, MEDICAL AND HEALTH RESEARCH ASSO-

CIATION OF NEW York City, INC., PLANNED PARENT-

HOOD OF NEW YorK City, INC., PLANNED PARENTHOOD

OF WESTCHESTER/ROCKLAND, and HEALTH SERVICES

oF HuDSON COUNTY, NEW JERSEY,

. Petitioners,

Dr. LOUIS SULLIVAN, or his successor,

Secretary of the United States Department

of Health and Human Services,

Respondent.

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

THE NEW YORK HEALTH & HOSPITALS CORP.,

. Petitioners,

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

United States Department of Health and Human Services,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Secend Circuit

2

BRIEF OF

REPRESENTATIVES PATRICIA SCHROEDER,

OLYMPIA SNOWE, NITA LOWEY, BILL GREEN, et al.*

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

This amici curiae brief is submitted in support of peti-

tioners Rust, et a/., and the State of New York, et al. By

letters filed with the Clerk of the Court, petitioners and

respondent have consented to the filing of this brief.

INTEREST OF AMICI CURIAE

As members of Congress, amici curiae have a particu-

lar interest in ensuring that the departments entrusted

with the implementation of statutory provisions correctly

interpret those provisions. Specifically, amici curiae have

an interest in ensuring that the Secretary of Health and

Human Services properly construes and administers the

provisions of Title X of the Public Health Service Act,

42 US.C. § 200 et seg. (1982 & West Supp. 1990).

INTRODUCTION

Nearly twenty vears ago, Title X of the Public Health

Service Act was enacted with broad bipartisan support

and with a legislative compromise—section 1008—that

balanced the contending views of various of the pro-

ponents of the program and the anti-abortion constitu-

ency. The family planning program was administered

consistently for seventeen years, and Congress easily re-

buffed the efforts of a few Members of Concress to enact

the very restrictions at issue here.

Suddenly, the Secretary of Health and Human Services

announced new regulations in a blatant effort to cir-

cumvent the intent of the statute and the political proe-

* See inside front cover for full list of amie.

3

esses from which it derived. Amici curiae include many

of the 148 Members of Congress who filed comments with

the Secretary opposing this clear abuse of ‘his rulemaking

authority. Our interest in this case lies with the preserva-

tion of the integrity of a statute that, unless and until

the Congress acts, is the law of the land. :

SUMMARY OF ARGUMENT

We object to two features of the Secretary’s new regu-

lations: the prohibition on providing information through

neutral, non-directive counseling concerning abortion and

referral to abortion providers (section 59.8(a)) and the

requirement that Title X programs be carried out in

facilities that are physically separate from facilities in

which abortion services are provided (section 59.9). As

we explain in Point I, the Secretary’s prohibition on

abortion counseling and referral is utterly inconsistent

with the language of Title X, including section 1008. In

Point II we establish that, even if section 1008 is not

expressed in clear, unambiguous language, the Secretary’s

new regulations are not based upon a permissible con-

struction of that language. Finally, in Point III, we

demonstrate that the Secretary’s physical separation re-

quirement is arbitrary and capricious.

ARGUMENT

I. THE UNAMBIGUOUS LANGUAGE OF TITLE X

IS INCONSISTENT WITH THE SECRETARY'S

REGULATIONS PROHIBITING GRANTS TO PRO-

GRAMS THAT PROVIDE COUNSELING OR RE-

FERRAL FOR ABOR? TION

The plain meaning of section 1008 is inconsistent with

so much of the Secretary’s regulations that prohibit non-

directive abortion counseling and referral. An adminis-

trator has no discretion to “interpret” a statute when

“Congress has directly spoken to the precise question at

4

issue” through the plain language of the statute. Chevron

U.S.A. Ine. v. Natural Resources Defense Couneil, Ine.,

467 U.S. 837, 842, 843 n.9 (1984).!

A. Section 1008 Prohibits the Use of Title X Funes

Only for Programs in Which “Abortion” Is a Method

of Family Planring

Section 1008 forbids the use of Title X funds “in pro-

grams where abortion is a method of family planning.”

By its terms, section 1008 prohibits the expenditure of

Title X funds only for “abortion,’’ not “abortion counsel-

ing” or “abortion referral.”

The Secretary asserts that because Title X programs

provide, inter alia, family planning information, “abor-

tion” is a “method of family planning’’ in any program

that provides information about or referral for abortion.

While the Secretary’s observation about the scope of Ti-

tle X services is undoubtedly correct, that observation

provides no premise for his conclusion.

The fact that Title X programs may provide informa-

tion about family planning methods does not convert the

information into a “method of family planning.” Despite

occasional resort to it, talk is simply not a “method of

family planning.” The Secretary’s contrary reading of

the statute finds no support in language or experience.

To illustrate the fallacy of the Secretary’s reasoning, a

Title X program that aggressively counseled its clients

against abortions would be one in which “abortion” is a

“method of family planning” if the program also, no

matter how grudgingly or disapprovingly, provided its

clients with basic information about abortion. Under any

natural reading of the statutory language, this cannot be.

1“(N ilo deference is due to agency interpretations at odds with

the plain language of the statute itself.” Public Employees Re-

tirement Sys. v. Betts, 492 US. , 109 S. Ct. 2854 2863 (1989

Board of Governors v. Dimension Fin. Corp... 474 U.S. 361, 368

(1986).

5

The very absence of any mention of ‘abortion counsel-

ine’ or “abortion referral” dispels any ambiguity as to

the meaning of section 1008. As Title X is structured,

section 1008 sets forth a limited exception to expenditures

that, absent section 1008, would be otherwise plainly au-

thorized by the statute... Without compellin, evidence to

the contrary, it must therefore be presumed that what

Congress did not specifically exclude from Title X’s “‘com-

prehensive” services it necessarily knowingly authorized.’

This case is thus not like the usual one in ‘which the

absence of explicit mention of a matter in the statute

suggests that Congress has “left a gap for the agency to

fill [so that] there is an express delegation of authority

to the agency to elucidate a specific provision of the stat-

ute by regulation.” Chevron, 467 U.S. at 843-44. To the

contrary, the absence of explicit mention here means that

Congress has resolved the issue, and that it is not one

that was “ ‘committed to the agency’s care by the stat-

ute.” Jd. at 845 (quoting United States v. Shimer, 367

U.S. 374, 383 (1961) ).

2 We do not understand there to be any dispute on this point.

Nor could there be. Title X was enacted “to assist in making

comprehensive voluntary family planning services readily avail-

able to all persons desiring such services.” Pub. L. No, 91-572,

§2(1), 84 Stat. 1504 (1970) (emphasis added). Those compre-

hensive services were to include “medical, informational, and edu-

cational activities” related to family planning, population research

and infertility services. H.R. Conf. Rep. No. 1667, 91st Cong., 2d

Sess. 8 (1970), reprinted in 1970 U.S. Code Cong. & Admin. News

at 5082, Joint Appendix (“J.A.") at 70a (references to the Joint

Appendix will be to the Joint Appendix for the briefs on the

merits, “J.A. at —,” or to the Joint Appendix for the Petition for

Writ of Certiorari, “J.A. ata”).

$It is this principle that animates the general rule that statu-

tory exceptions are to be read narrowly. See, e.g., Andrus v.

Glover Constr. Co., 446 U.S. 608, 616-17 (1980). The rule of narrow

construction is particularly appropriate in construing exceptions

to remedial statutes such as Title X. Piedmont & Northern Ry.

v. ICC, 286 U.S. 299, 311-12 (1932); see 3 N. Singer, Statutes and

Statutory Construction §64.08 at 247 (C.D. Sands 4th ed. 1986)

(grant-in-aid statutes remedial in character).

6

Indeed, had Congress intended to prohibit abortion

counseling, it would have done so in explicit terms, not

by omitting to mention the subject with the hope that the

Secretary would fill the statutory void. When counseling

a patient about the various methods of contraception, a

physician has an obligation to educate the patient about

the risks, side effects, and failure rates of each method.

Furthermore, the physician must, as a matter of com-

petent medical practice, inform the patient of the avail-

able choices in the event of contraceptive failure, choices

that include carrying the pregnancy to term, placing the

child for adoption, and, whether the Secretary likes it

or not, terminating the pregnancy. '

Il. EVEN IF SECTION 1008 IS AMBIGUOUS, THE

SECRETARY’S REGULATIONS ARE NOT BASED

UPON A REASONABLE CONSTRUCTION OF THE

STATUTE

A. The Secretary’s Interpretation of Section 1008 Is

° Not Entitled to the Usual Deference

When the Court concludes that statutory language is

ambiguous, it inquires whether an agency’s proffered in-

terpretation is “based on a permissible construction of the

' Affidavit of Irving Rust, M.D. (February 5, 1988), J.A. at 251

(“aecess to information about abortion is essential to the ability

of a non-pregnant patient to give informed consent to her choice

of contraceptive method. For many patients with diabetes, heart

disease, or hypertension, oral contraceptives may present a serious

health risk. It is imperative that I inform these patients that use

of a diaphragm with the back-up of an early abortion is in fact

the safest method of contraception, despite the lower effectiveness

rate of the diaphragm versus the pill . . No responsible family

planning decision can be made without information about every

alternative available, including that of abortion, in the event that

contraceptive failure, occurs . . .”); Affidavit of Raymond Fink,

(February 3, 1988), J.A. at 164 (physicians “will be unable to em-

phasize in a meaningful manner, the importance of family planning

and responsible sexual behavior to patients because to do so re

quires discussion of the success and failure rates of all contracep-

tive modalities and how these affect one’s ability to avoid unin-

tended pregnancy and unwanted childbirth.”).

7

statute.” Chevron, 467 U.S. at 843 (footnote omitted).

Although generally the Court accords “considerable

weight” to the agency’s construction, deferring to the

agency's interpretation of its statutory mandate, id. at

842-44, the Court traditionally has refused to defer to

an agency interpretation of statutory language if the in-

terpretation is inconsistent with the agency’s previous

interpretation of the same language. See, e.g., INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (“An

additional reason for rejecting the (Government ]|’s_ re-

quest for heightened deference to its position is the in-

consistency of the positions the BIA has taken through

the years.”’) (citations omitted) .°

Although an agency may reexamine and correct prior

positions and respond to changing circumstances," when

It reverses its position on a question of statutory inter-

pretation, the Court declines to accord the new interpreta-

tion the same degree of deference enjoyed by a consistent,

long-standing interpretation rendered contemporaneously

with the enactment of the statute. This is because con-

* This is a time honored rule to which the Court faithfully has

adhered both before and after its decision in Chevron. See NLRB

v. United Food & Commercial Workers Union, 484 U.S. 112, 124

n.20 (1987) (“We also consider the consistency with which an

agency interpretation has been applied .. .”) (citations omitted) ;

Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Ine.,

170 U.S. 116, 134 (1985) (“Here we are not dealing with an

agency’s change of position with the advent of a different ad-

ministration, but rather with EPA’s consistent interpretation since

the 1970’s."): Watt v. Alaska, 451 U.S. 259, 273 (1981) (“The

Department's current interpretation, being in conflict with its

initial position, is entitled to considerably less deference.”) (cita-

tion omitted); General Elec. Co. +. Gilbert, 429 U.S. 125, 142

(1976) (refusing to follow agency guideline which “flatly con-

tradicts the position which the agency had enunciated at an ear-

lier date, closer to the enactment of the governing statute.) :

Morton v. Ruiz, 115 U.S. 199, 237 (1974) (weight of the agency's

interpretation dependent upon, inter alia, “its consistency with

earlier and later pronouncements of an agency”) (citation omitted ) ;

Skidmore v. Swift & Co., 322 U.S. 134, 140 (1944).

® Chevron, 467 U.S. at 863-64.

8

temporaneous administrative construction of a statute is

highly persuasive evidence as to the statute’s intended

effect,’ particularly where, as here, the agency charged

with administering the law was active in the legislative

process and, therefore, can be assumed to have especial

knowledge of what the legislature intended.*

As we explain in greater detail below,” the Se-retary’s

ban on abortion counseling and referral in Tile X pro-

grams is a sharp departure from a long-stand'ng e2d-

ministrative interpretation. As the Court of Appeals

explained,

There is little doubt that the new regulations were

intended as a departure from prior administrative

practice. While Title X funds were never permitted

in the past to be used either to perform or to sub-

sidize actual abortions, . . . administrative int«rpre-

tations at first permitted, and later required, Title X

_ projects to provide information about, and referral

for, abortions, including names and addresses of

889 F.2d 401, 404 (2d Cir. 1989), J.A. at. 42a (citations

omitted), This complete reversal deprives the Secretary’s

n.17 (1981); Udall v. Tallman, 380 U.S. 1, 16 (1965).

8 See United States v. Vogel Fertilizer Co., 455 U.S. 16. 31

(1982); Miller v. Youekim, 440 U.S, 125, 144 (1979). The Secretars

of Health, Education and Welfare, the Assistant Secretary for

Health and Scientific Affairs, the Deputy Assistant Secretary for

Population Affairs, and the Director of the Office of Population and

Family Planning were each highly active in the legislative process

culminating in the enactment of Title X. See, e.¢., Family Plenning

Services: Hearing on H.R. 15159, H.R. 9107, H.R. 9108, H.R. 9109.

H.R. 15691, H.R. 11123 and S. 2108 Before the Svbcomm. on

Public Health and Welfare of the House Comm. on Interstate and

Foreign Commerce, 91st Cong., 2d Sess. 84-5 (1970) (statement of

Elliot L. Richardson, Secretary of Health, Education and Welfare)

(“It is clear that the administration and the sponsors of S. 2108

have essentially the same goals, and we have worked closely with

the Senate sponsors on this legislation in an effort to minimize our

differences.” ).

® See infra at pp. 13-15,

9

new interpretation of Title X of the deference an admin-

istrator usually enjoys.'”

Lb. The Secretary’s Regulations Are Not Based Upon

a Permissible Construction of Section 1008

The Court should reject the Secretary’s interpretation

of section 1008 as not “reasonable, in light of the lan-

guage, policies, and legislative history” of the statute.

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 131 (1985).

1. The Secretary’s Interpretation of Section 1008

Thwarts the Overriding Purpose of Title X

The Secretary’s principal justification of his interpre-

tation of section 1008 is unusual. He argues less that

his interpretation is correct as a matter of statutory

construction and more that it better effectuates the in-

tention of Congress in enacting section 1008, 53 Fed.

Reg. 2922, 2923 (1988). In so doing, the Secretary has

disregarded the overall purpose and rationale of Title X,

while misconceiving the more limited purpose of section

1008.

Title X is not an anti-abortion statute. It was enacted

“to assist in making comprehensive voluntary family

planning services readily available to all persons desir-

ing such services.” Pub. L. No. 91-572, £ 2(1), 84 Stat.

1504 (1970). Those comprehensive services were to in-

clude “medical, informational, and educational activities”

related to family planning, population research and in-

Indeed, the Secretary's interpretation may be entitled to no

deference at all. When faced with a “pure question of statutory

construction,” a question for the judiciary to decide, the Court

need not defer to the agency. Rather, the Court resolves the issue

for itself, “employing traditional tools of statutory construction.”

Cardoza-Fonseca, 480 U.S. at 446-47; United Food & Commercial

Workers Union, 484 U.S. at 123; see also Chevron, 467 U.S. at 843

n.9 (“the judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which

are contrary to clear congressional intent’).

10

fertility services. H.R. Conf. Rep. No. 1667, 91st Cong.,

2d Sess. & 11970), reprinted in 1970 U.S. Code Cong. &

Admin. News at 5082, J.A. at 70a. Congress did not

consider family planning to be “merely a euphemism for

birth control.” S. Rep. No. 1004, 91st Cong., 2d Sess.

10 (1970). Indeed, the Senate Keport underlined that a

“successful family planning program” should provide

“consultation” and “referral to other medical services as

needed.” Id.

The history of Title X clearly supports the notion

that, when properly construed, section 1008 allows Title

X programs to achieve both Title X’s goal of providing

comprehensive information and section 1008’s goal of

prohibiting federal funding of abortion. When Title X

was enacted, all states allowed abortions under at least

some circumstances, and the clear trend was toward lib-

eralized legalization.'' Of course, the propriety of abor-

tions was, and is, hotly disputed. In the course of hear-

ings by the Subcommittee on Public Health and Welfare

of the House Committee on Interstate and Foreign Com-

merce, several »pponents of the legislation that became

Title X expressed concern that its effect would be to fund

abortions. '*

1! Thirty-three states allowed abortions to save the life (or, some-

times, the physical health) of the woman; thirteen states allowed

abortions when the pregnancy would endanger the physical or

mental health of the woman, when the child would be born with

grave physical or mental problems, and in cases of rape or incest;

four states allowed abortions for any reason when performed by a

licensed physician during the early stages of pregnancy. See

Roemer, Abortion Law Reform and Repeal: Leaislative and Judi-

cial Developments, 61 Am. J. Pub. Health 500, 500-01 (March

1971). For discussion of the trend in the early 1970s toward

liberalizing abortions laws, see 116 Cong. Ree. 10,278 (1970) (state-

ment of Sen. Tydings on need to re-examine abortion laws): id. at

24,096 (statement of Sen. Packwood supporting liberalization of

abortion laws); George, The Evolving Law of Abortion, 23 Case

W. Res. L. Rev. 708 (1972); Note, A Survey of the Present Statu-

tory and Case Law on Abortion: The Contradictions and the

Problems, 1972 U. Ill. L. Forum. 177.

2 See, e.g., Family Planning Services: Hearing at 240 (tes-

timony of Mrs. D.R. Mogilka, Chairman, Reverence for Life of

11

To meet these concerns, the ful! committee, at the be-

hest of Representative John D. Dingell, added section

1008, entitled “Prohibition of Abortion.” H.R. Rep. No.

1472, 91st Cong., 2d Sess. 4 (1970). The legislation was

passed by the House in this form, and the Conference

Committee adopted the House version. Significantly, the

Conference Committee also described section 1008 as pro-

hibiting “the use of | Title X| funds for abortion.” H.R.

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

at 70a (emphasis added).

The only extended explication of section 1008 was set

forth in a revised and extended floor statement by Rep-

resentative Dingell. The statement is explicit that the

focus of section 1008 was the prohibition of abortions.

It emphasized that a principal concern of Congress was

-to prevent Title X, through operation of the supremacy

clause, from becoming the vehicle through which abor-

tion was rendered legal nationwide.

None of the 50 States currently sanction abortion

as a method of family planning. The criminal codes

of most States sanction abortion only in certain strict

and clearly-circumscribed cases. Even the broadest

interpretation of these laws would not lead one to

the conclusion that they in any way allow for such

a procedure as an accepted method of family plan-

ning. For the Congress of the United States to ap-

propriate funds for a procedure which would violate

the criminal law of a vast majority of American

jurisdictions would be to raise constitutional ques-

tions of a most serious nature. ...

116 Cong. Rec. 37,379 (1970) ‘statement of Rep. Din-

gell) (footnote omitted) (emphasis added).

Representative Dingell’s lengthy statement, which we

urge the Court to read in its entirety, makes no mention

of abortion counseling or referral. Indeed, there is not a

America) ; id. at 359 (testimony of Rev. James T. McHugh, Director,

Family Life Division, U.S. Catholic Conference); id. at 369 (testi-

mony of Mrs. R. Kuffel, National Coordinator of Civic Awareness

of America) ; id. at 382 (testimony of Dr. John F. Hillabrand).

12

single statement in any of the Title X committee reports

or floor debates that mentions counseling or referral.'*

Representative Dingell’s reassurance that “abortion is

not to be encouraged or promoted in any way through

this legislation,” 116 Cong. Rec. 37,375, meant, as Rep-

resentative Dingell himself has confirmed,’ no more than

what he said—that the effect of Title X would not be to

increase the availability of abortions.’ There is no sup-

port for reading into that statement an otherwise un-

stated intent to preclude any mention of abortion during

counseling or to preclude referral to other health care

providers that could legally perform abortions in their

state.

The Secretary’s central justification for his actions is

that providing neutral, factual information about abor-

13 Subcommittee testimony by Monsignor Alphonse S. Popek, in-

veighing against abortion and abortion counseling, does not. shed

light on the meaning of section 1008. Fumily Planning Services:

Hearing at 321-22. Msgr. Popek also opposed the bill in its final

form, predicting that, as a result of the legislation, “|b \efore

long ‘life control’ and ‘death control’ within each State of the

Union will fall before the monstrous sovereign dictatorship of the

Federal Government .. .,” and that the “horrendous Hitlerian

experiment, to propagate his superrace, will be repeated... .” 116

Cong. Ree. 37.383 (1970). The Court need not view Msgr. Popek’s

testimony as a reliable barometer of Congressional intent.

14 Representative Dingell filed comments with the Secretary op-

posing the misreading of his statements. He emphasized that “|m)\

remarks did not suggest—either expressly or implicitly—that the

leyislation being considered intended or required a prohibition on

non-directive counseling or referral of pregnant women to abortion

facilities." Comments of Chairman John D. Dingell, Committee on

Energy & Commerce, on Proposed Rules 42 CFR Part 59—-Fed.

Reg. Notice, Sept. 1, 1987 (Oct. 14, 1987) at 2.

15 [In much the same way, statements by proponents of the pend-

ing legislation, such as Dr. Alan Guttmacher (also a leading propo-

nent of the legalization of abortion), to the effect that one of the

beneficial collateral consequences of Tithe X would be to reduce the

number of abortions by reducing the number of unwanted preg-

nancies, cannot fairly be read as suggesting that the animating

purpose behind Title X was to reduce the availability of abortions.

13

tion constitutes “encouragement” of abortion, and that

the statute mandates ignorance instead. 53 Fed. Reg.

2923, 2953. The Secretary could not be more wrong.

Congress emphatically rejected the notion that the pro-

vision of non-directive information constitutes “encour-

agement” or “promotion.”” Members of Congress repeat-

edly stressed that the very purpose of Title X was to

enable “all individuals . . . to have the opportunity,

within the dictates of their conscience, to exert control

over their own life destinies.” 116 Cong. Ree. 24,092

(1970) (statement of Sen. Eagieton).'® Title X_ itself

provides that “|/t|he acceptance by any individual of fam-

ily planning services .. . shall be voluntary.” 42 U.S.C.

£ 300a-5 (1982). Congress sought to facilitate this vol-

untary action by providing accurate, compiehensive in-

formation. Sec, ¢.g., 116 Cong. Rec. 37,388 (1970) (state-

ment of Rep. Burke! (purpose of Title X is “to provide

information, including educational materials ... to en-

able people to do what their conscience dictates is proper

or advisable in their own situation.”); id. at 37,382

(statement of Rep. Rogers); id. at 37,375 (statement of

Rep. Broyhill). By withholding information from Title

X beneficiaries, the Secretary prevents them from mak-

ing the truly informed, voluntary family planning deci-

sions that Congress intended to facilitate.

2. The Secretary’s New Regulations Are Inconsist-

ent with the Contemporaneous and Consistent

Administrative History of Section 1008

Not once, in the seventeen years after*the enactment

of Title X, did the Secretary even suggest that section

16 See also 116 Cong. Ree. 37.375 (1970) (statement of Rep.

Broyhill) (“{I}| would like to emphasize that the programs involved

here involve only voluntary family planning assistance. The record

should be abundantly clear that it is not the intentyof-fongress

that any such program shculd interfere with the religious or mora!

beliefs of individual Americans.) ; jd. at 37,288 (statement of Rep.

Matsunaga) (“We must be very careful to safevuard the religious

and moral convictions of all of our citizens, and I am convinced

that | Title X | does precisely that.”’).

14

1008 prohibited the provision of information about abor-

tion or referral for abortion. The earliest regulations

for the Title X program, issued in 1971, required that

all Title X grantees provide “medical services related to

family planning including . . . necessary referral to

other medical facilities when medically indicated,” and

“social services related to family planning, including

counseling. . . .” 36 Fed. Reg. 18,465, 18,466 (1971).

Title X grantees were also required to make provision

for “coordination and use of referral arrangements with

other providers of health care services. . . .”- Id. at

18,466.

Guidelines issued by the Secretary in 1976 and 1981

stated that abortion referral and counseling “must | be]

provide[d|” by Title X recipients.'* In 1978 the Secre-

tary filed an amicus brief in the Eighth Circuit arguing

that Title X required referrals, at least for medically-

indicated abortions.'”

Numerous interpretations within the Department were

to the same effect. Only months after Title X was en-

acted, the Office of General Counsel expressed its under-

standing that section 1008 prohibited only the provision of

abortions.” In 1976, the Office of Population ~ Affairs

17 Department of Health and Human Services, Program Guide-

‘lines for Project Grants for Family Planning Services, $§ 7.4, 8.9,

8.1 and 8.6 (1981), J.A. at Tla (emphasis added) ; accord Depart-

ment of Health, Education and Welfare, Program Guidelines for

Project Grants for Family Planning Services (Jan. 1976), J.A.

at 72a.

18 See Brief of the Secretary of Health and Human Services in

Valley Family Planning v. North Dakota, 661 F.2d 99 (8th Cir.

1981), J.A. at 72a. That case held that a state statute’s prohibi-

tion on using public funds for abortion referral violated the su-

premacy clause because it “{ran] afoul of Title X's mandate that

comprehensive health care be provided.” 661 F.2d at 102.

1Y See Memorandum from Joel M. Mangel, Deputy Asst. General

Counsel, Department of Health, Education and Welfare, to Louis

M. Hellman, M.D., Deputy Asst. Sec’y for Population Affairs (Apr.

20, 1971), J.A. at 35 (collection of data relating te subject of abor-

tion would not violate section 1008 since it “does not itself involve

the provision of abortions” ).

15 ,

directed that, although section 1008 prohibited directive

counseling on abortion, a counselor in a Title X program

had ‘not only a First Amendment right but duty to in-

form a patient of all legal options.” ** The Department’s

consistent construction of section 1008 was summarized

in a 1978 Office of General Counsel opinion, stating:

“provision of information concerning abortion services,

lor | mere refeiral of an individual to another provider

of services ... are not considered to be proscribed by

$1008.” *' Again, in 1979, the Department reiterated its

position that “|t|he provision of information on abortion

services and the mere referral of a patient to another

provider for such a procedure are permissible.” **

3. Subsequent Actions by the Congress Are Con-

sistent with the Contemporaneous Legislative

and Administrative History

. a os ,

Under settled principles, “ ‘Congress is presumed to

be aware of an administrative or judicial interpretation

of a statute and to adopt that interpretation when it

reenacts a statute without change... .’”~*' This pre-

sumption is even greater when Congress reenacts the

20 Letter from Louis M. Hellman, M.D., Deputy Asst. Sec’y for

Population Affairs, to Hilary H. Connor, M.D., Regional Health

Administrator (Nov. 19, 1976), J.A. at 74a (emphasis adcod).

“1 Memorandum from the Office of General Counsel, Department

of Health, Education and Welfare (Apr. 14, 1978), J.A. at Tha.

22 Memorandum from Louis Belmonte, Regional Program Con-

sultant (May 25, 1979), J.A. at 75a; see also Memorandum from

Department of Health, Education and Welfare (July 25, 1979), J.A.

at 73a (“a [Title X| project may, consistent with section 1008

make ‘mere referrals’ for abortion”) (emphasis in original). .

23 Lindahl v. OPM, 470 U.S. 768, 782 n.15 (1985) (citations

omitted); Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456

U.S. 353, 382 n.66 (1982); see also United States v. Ruthe vdaed

442 U.S. 544, 554 (1979) (citations omitted) (deference to oi

administrative interpretation of a statute “is particularly appro-

priate where .. . an agency’s interpretation involves issues of con-

siderable public controversy, and Congress has not acted to correct

any misperception of its statutory objectives.”).

16

statute after the agency’s construction has been “fully

brought to |its| attention.” *!

Congress has been acutely aware of the Department’s

consistent interpretation of section 1008 and has re-

authorized Title X six times since 1970*. Moreover,

during that time Congress repeatedly refused to enact

legislation that would have overturned the Department’s

consistent interpretation.

a. Congress Has Been Well Aware of the De-

partment’s Interpretation of the Statute

Title X has been subject to unusually close scrutiny

by Congress. See, e.g., 121 Cong. Ree. 9,790 (1975)

(statement of Sen. Cranston) (“The committee has also

“teen watching the administration of these programs very

closely.”). In addition, agency reports and General Ac-

counting Office (“GAO”) audits have fully apprised Con-

gress that Title X grants have been made to programs

that counsel or refer for abortions.

As originally enacted, Title X required the Secretary

to submit a “five-year plan” and annual progress reports

to Congress setting forth goals for the program and a

plan to reach those goals. Pub. L. No. 91-572, $5, 84

Stat. 1504, 1505 (1970). The first five-year plan, sub-

mitted to Congress by the Secretary in October 1971,

(citations omitted); see also Bob Jones Univ. v. United States,

161 U.S. 574, 599-601 (1983); Kay v. FCC, 443 F.2d 638, 646- 17

(D.C. Cir. 1970) (| A] consistent administrative interpretation

of a statute, shown clearly to have been brought to the attention

of Congress and not changed by it, is almost conclusive evidence

that the interpretation has congressional! approval.”’).

\

25 Title X was reauthorized in 1973. Pub. L. No. 93-45, 87 Nat~——

9]. It was reauthorized again in 1975, Pub. L. No. 94-6989 Stat.

904, again in 1977, Pub. L. No, 95-83, 91 Stat. 383, again in 1978,

Pub. L. No. 95-613, 92 Stat. 3093, again in 1981, Pub. L. No. 97-35,

95 Stat. 357, and again in 1984, Pub. L. No. 98-512, 98% Stat. 2409.

See also HR. Rep. No. 159, 99th Cong., Ist Sess. 2 (1985) (sum

marizing history). Since 1985 the Title X program has been

funded through a series of continuing resolutions.

17

made clear that the Secretary interpreted section 1008

as prohibiting grants only to programs that actually per-

formed abortions for contraceptive purposes.“ The Sec-

retary also recognized that “even the most effective con-

traceptives have failure rates which result in unwanted

pregnancies and some persons will seek assistance in

terminating the pregnancy.” *

In 1974 the House Committee on Interstate and For-

eign Commerce noted that “|t|his [Five-Year] Plan and

the annual reports submitted to Congress outlining prog-

ress toward filling its objectives have made possible Con-

gressional evaluation of existing policies and practices

in the field, and determination of the need for new

ones.” The following year Congress amended Title X

to require annual reports to the Congress on the Depart-

ment’s plans for the succeeding five years of the pro-

gram.~”

In addition to the annual reports, in 1981 Sena ors

Orrin Hat-h and Jeremiah Denton commissicned a spe-

cial audit of the Title X program to see whe'her section

1008’s prohibition against funding of abortions as a

method of family planning was being properly enforced.

The Comptroller General’s report, issued the following

year, expressly noted that the Department had long ‘aken

the position that a Title X grantee may:

—provide information about abortion services ;

26 Report of the Secretary of Health, Education and Welfare

Submitting Five-Year Plan for Family Planning Services and

Population Research Programs for the Special Subcomm. on Human

Resources of the Senate Comm. on Labor and Public Welfare, 92d

Cong., Ist Sess. 319 (1971).

27 Jd. at 82 (emphasis added ).

23 H.R. Rep. No. 1161, 93d Cong., 2d Sess. 15 (1974); see also

H.R. Conf. Rep. No. 1524, 93d Cong., 2d Sess. 59 | 1974) (“Coneress

has received an accurate view of progress from year to year, and

local and Federal administrators have been able to evaluate program

effectiveness rapidly and with precision.” >.

20 Pub. L. No. 94-63, Title I], § 203(a), 89 Stat. 304, 307 (1975).

18

—provide the name, address, and the telephone num-

ber of abortion providers; .. .

—inspect facilities to determine their suitability to

provide abortion services; and

pay dues to organizations that advocate the avail-

ability of abortion services.”

The report contained the following conclusions:

—GAO found no evidence that title X funds had

been used for abortions or to advise clients to have

abortions. |

—We did not find any evidence . . . that pregnant

women were advised to have abortions.

—Clinic officials said they always emphasized a non-

directive and unbiased approach to counseling

pregnant women. Interviews with several coun-

selors showed that they were aware of restric-

tions against encouraging or advising clients to

have abortions.”'

b. Congress Repeatediy Has Reauthorized Funds

for Title X

Congress’ consistent reauthorization of Title X, in light

of the agency’s understanding of its mandate, is persua-

sive evidence that Congress acquiesced in the agency's

interpretation.” Indeed, the committees charged with

enacting Title X (as opposed to appropriations commit-

tees) and overseeing its implementation are the very com-

3 Report by the Comptroller General, Restrictions on Abortion

and Lobbying Activities in Family Planning Programs Need ,

Clarification 12 (Sept. 24, 1982), J.A. at 107.

*! Td. at i, 16, 17, J.A. at 82, 112-14.

%2 Reauthorization without change of a federal grant statute, like

other reenactments, is probative of leyislative acquiescence in an

existing interpretation. See Grove City College v. Bell, 465 US

555, 568-69 n.19 (1984); United States ex rel. TVA v. TwreTraets

of Land, 456 F.2d 264, 267 (sth Cir.) (repeated appropriations in

face of objections tainterpretation supported interpretation) ; cert

denied, 409 U.S. 887 (1972). .

19

mittees responsible for reauthorizing it.** Congress has

revisited Title X both in its oversight and its authorizing

‘apacity and, by reauthorizing Title X, has accepted and

extended the agency’s contemporaneous construction of

section 1008.

c. Congress Repeatedly Has Refused To Enact

Legislation that Would Impose the Restric-

tions the Secretary Now Seeks To Impose

Between 1974 and 1975, Congress considered and re-

jected three amendments to Department of Health and

Human Services appropriations bills that explicitly would

have prohibited the use of federal funds for abortion

referral services or for the promotion or encouragement

of abortion. See 120 Cong. Rec. 21,687-95 (1974); id. at

31,452-58, 121 Cong. Rec. 20,863-64 (1975).

In 1978, Representative Robert Dornan repeatedly

sought to amend section 1008 because it was not prevent-

ing Title X funds from being used for counseling and

referral activities that included abortion as an. option."

“ An “authorizing committee” is “a standing committee of the

House or Senate with legislative jurisdiction over the subject matter

of those laws, or parts of laws, that set up or continue the legal

operations of Federal programs or agencies.” G.A.O., A Glossary

of Terms Used in the Federal Budget Process 39 (1981); see also

id. at 5. Furthermore, as the Rules of the House of Representa-

tives direct, “[elach standing committee (other than the Commit-

tee on Appropriations and the Committee on the Budget) shall re-

view and study, on a continuing basis, the application, administra-

tion, execution, and effectiveness of those: laws, or parts of laws,

the subject matter of which is within the jurisdiction of thht com-

mittee and the organization and operation of the Federal agencies

and entities having responsibilities in or for the administration and

execution thereof, in order to determine whether such laws and the

proarams thereunder are being implemented and carried out in ac-

cordance with the intent of the Congress and whether such pro-

gqrams should be continued, curtailed, or eliminated.” Rules of the

House of Representatives, 10Ist Cong., 2d Sess. X.2(b) (1) (1990

‘emphasis added). ’

** To demonstrate how the Secretary had interpreted section 1008

and how Title X funds were being sperst, Representative Dornan

20

These attempts were all defeated. 124 Cong. Ree.

37,044-48.% In 1985 Representative Jack Kemp and ©

Senator Hatch also made unsuccessful attempts to add to

the appropriations bill for Title X a provision specifically

prohibiting abortion counseling and referral. 131 Cong.

Rec. 28,166 (1985) (statement of Sen. Hatch).*° The

amendment, also, did not pass. Representative “emp also

tried to add language prohibiting use of Title X funds to

refer pregnant women for abortions. See Congressional

put in the record an extensive article that detailed the legislative

history of section 1008 and that concluded “[t]here is apparently

no basis, in light of the legislative history of Section 1008, for

helieving that the prohibition of Title X funds for ‘abortion as a

method of family planning’ was intended to include a prohibition

of the use of such funds for abortion counseling and referral... .

In fact, it is apparent that Congress does not believe that the lan-

guage of the [Act] prohibits abortion referrals or counseling, or

even promotion or encouragement of abortion... .” 124 Cong. Ree.

*1.943-44 (1978). Representative: Dornan also noted that Depart-

ment of Health and Human Services regulations “require referral

for abortion, or abortive counseling under the heading of ‘preg-

naney counseling,’ ” id at 31.244, and he put in the record an ar-

ticle showing that HHS program guidelines required counseling on

the option of pregnancy termination for women who become preg-

nant while wearing an IUD or after having received DES. Id

at $1,245-46.

“> That in the course of this extended debate Representative

Dornan quoted from a letter written by Representative Rogers that

suggests that the Congressman thought counseling and referral!

were already prohibited by section 1008 is irrelevant. See 124 Cong

Rec. 37.046. What is centrally relevant is what Congress did-—it

rejeéted the various amendments that would have overturned th

Department's practice of providing Title X grants to program: that

proy ide abortion counse ling and referrals.

“ That same vear the House Committee on Energy and Com

mer-e noted its disapproval of “proposed amendments that would

atfect the interpretation and implementation of [section 1008),

The Committee does not intend—and would discourage—regulatory

efforts to modify restrictions that the Committee has chosen to

retain. Previous effarts to create restrictions heyond the orrainal

nien® of the law have heen unnecessary and without statutory

foundation.” THR. Rep. No. 159 at 6 7 emphasis added).

21

Quarterly Weekly Report 2,589-90 (Dec. 7, 1985) (re-

porting on H.J. Res. 465). The House Committee on

Appropriations rejected * that language as well.**

The following year, Congress instructed the Secretary

not to change administrative policy regarding nondirec-

tive counseling. The Conference Committee. Report ac-

companying that year’s appropriations bill for Title X

stated that the Secretary should “administer the program

for FY 1987 in the same manner, and under the same

allocation formula which governed program operations

during FY 1986.” H.R. Conf. Rep. Ne. 960, 99th Cong.,

2d Sess. 12 (1986). .

87 Moreover, Congress consistently has appropriated funds for

Title X without attempting to use the appropriations process to

amend Title X to prohibit counseling and referral for abortion.

Congress’ decision not to do so cannot be attributed to mere omis-

sion, for the annual appropriations process has been the principal

vehicle through which abortion restrictions, including the Hyde

Amendment, have been implemented over the last fifteen ve ars

See, e.g., Senate Republican Policy Committee, The Hyd: Amend-

mert: A Legislative History of Abortion Funding Restrictions on

the Lahbor-HEW Appropriations Bill, reprinted in 127 Cong. Ree

10,677-823 (1981): 36 Congressional (druarte rlu Almaneer 467-68

(1980) (describing history of anti-abortion riders to appropriations

bills during the period from 1973 to 1980)

* Instead, the Committee included in the resolution languaye

offered by Representative Richard Durbin prohibiting use of Tithe X

funds for “advocating” abortion nless the woman's life was en

danyvered, Conoressional (Juarterlu Weeklu Re port at 2.590. The

Appropriations Committee Report) accompanying the reselutio:

makes clear that the Committee did not equate advocacy of abortion

with counseling and referral. H.R. Rep. No. 408, 99th Cong. Let

Sess. 6 (1985).

" The Committec report's language was taken verbatim from th

1981 Guidelines for Tithe X programs, which required that non

directive counseling be provided ipon request. Se ma p. 14 &

nli In a later compromise the committee language was dropped in

return for an avreement barring Representative Kemp offer

ing his language as a f'oor amendment. See Conare onal Quarter!

a! ‘¢ i ly Re port at 2,590

* Similar language restricting the Secretary's authority to prom

ulgate new re yulations was deleted b the Conference Committee

99

ou

lll. THE SECRETARY’S RESTRICTIONS ON THE

PHYSICAL LOCATION OF TITLE X GRANTEES

ARE CONTRARY TO STATUTORY INTENT AND

ARE AN IRRATIONAL RESPONSE TO A NON-

EXISTENT PROBLEM

Many Title X-funded programs are located in the

sume building or otherwise share physical facilities with

reproductive or other general neal care programs."

Section 59.9 of the Secretary’s new regulations requires

Title X-funded programs to maintain separate office space

and treatment facilities and to use separate personnel,

even if doing se requires substantial expenditures on

duplicated facilities and decreases the ability of Title X

grantees to coordinate their programs with those of other

health care providers. These physical separation require-

ments are arbitrary and capricious.

on the Fiscal Year 1988 Continuing Resolution in propo ed form,

because “{t!he administration insisted that this language would

subiect the conference report to a veto. Instead, the conferees In-

cluded report language stressing the importance of making changes

in this program through the authori: ‘ing process, rather than by-

nassing that process and utilizing regulations to propose changes

that would otherwise be rejected.” 123 Cong. Rec. 112,.004-05 (daily

ed. Dec. 21. 1987) (statement of Rep. Jamie Whitten, Chairman of

the House Appropriations Committee ).

Representative Whitten went on to explain that the conferees’ ac-

tion in deleting the restrictive language was not an endorsement

of the proposed regulations. Jd, at 12,005. Even so, the Conference

Report noted that “|t he Senate conferees and some House con-

ferees believe that changes to existing law must be achieved through

hared adherence Lo the constitutional process and express disagree

ment with the executive’s bypassing that process through a regula

tery device.” H.R. Conf. Rep. No. 498, 100th Cong, Ist Sess

1987), reprinted in 132 Cong. Ree 12.709-10 (1987

In 1982 the Department of Health and Human Services esti-

mated that 74 nizat receiving Tithe X funds also performed

abortions at clinics collocated with the Title X clinic. Report by

the Comptroller General! 7, J.A. at 100.

23

A. The Requirement of Physical Separation Is Unsup-

ported by Any Rational Consideration of the Con-

nection Between the Facts Available to the Secre-

tary and His Chosen Regulatory Means

The Secretary’s physical separation requirement is not

based upon any rational connection between the facts

available to the Secretary and his chosen regulatory ac-

tion. As the Court has explained, “|i]t is an axiom of

administrative law that an agency’s explanation of the

basis for its decision must include a ‘rational connection —

between the facts found and the cheice made.’” Bowen

v. American Hosp, Ass'n, 476 U.S. 610, 625 (1986)

(plurality) (quoting Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto, Ins. Co., 463 U.S. 29, 43 (1983) (quot-

ing Burlington Truck Lines, Ltd. v. United States, 371

U.S. 156, 168 (1962))). If the agency has “offered an

explanation for its decision that runs counter to the evi-

dence before the agency,” the Court will invalidate the

agency’s decision as arbitrary and capricious. Motor

Vehicle Mfrs. Ass'n, 463 U.S. at 43. To determine

whether there is a rational connection between the facts

before the agency and the choice the agency has made,

the court does not merely skim the facts available to the

agency In search of any plausible connection between the

facts and the agency's action. Rather, the court exam-

ines the information available to the agency, searching

for a rational connection between that information and

the agency's action."

The requirement of physical separation rests on the

Secretary's finding that:

'“Agency deference has not come so far that we w l] uphold

regulations whenever it is possible to ‘conceive a basis’ for ad-

ministrative action. To the contrary, the ‘presumption of regular-

ity afforded an agéney in fulfilling it tatutory. mandate’ is not

equivalent to ‘the minimum itionalitv a tutute must bear in

order to withstand analysis under the dus nrocess clause’” Ams

ean Hosp. Ass'n, 476 US. at 626-27 (quoting Motor Vehicle Mire

iss'n, 463 US. at 423 n.9 (1988

24

Meeting the requirement of section 1008 mandates

that Title X programs be organized so that they are

physically and financially separate from other activi-

ties which are prohibited from inclusion in a Title

X program. Having a program that is separate from

such activities is a necessary predicate to any deter-

mination that abortion is not being included as a

method of family planning in the Title X program.

53 Fed. Reg. 2,940 (emphasis added).

In announcing the new rules, the Secretary did not

even attempt to support this finding. Indeed, the ex-

perience of the Department in administering Title X

belies the Secretary’s claim of any need for the separa-

tion requirements. See supra at pp. 17-18 (diseussing

Comptroller General’s Report); see also H.R. Rep. No.

159, 99th Cong., Ist Sess. 6 (1985) (“{I]n 1984, Secre-

tary Heckler testified before the Subcommittee . . . that

Title X grantees ‘have been very aware and have honored

the law in terms of the abortion prohibition .. .’ This

view was reiterated by the Acting Assistant Secretary

during the Subcommittee’s 1985 Title X hear-

ings.””).*°

‘2 While elsewhere in the preamble to the regulations the Secre-

tary relies on reports issued by the General Accounting Office and

the Department's Inspector General, 53 Fed, Reg. 2,925-24, these

reports were not offered in support of the Secretary's finding that

section 1008 “mandated” the physical separation requirements. This

is because neither report supports this finding; both conclude that

there have been few violations of the section 1008 proscription.

To the extent that the Secretary relies upon the GAO's sug-

yestion that he clarify the requirements of section, 1008, 53 Fed.

Reg. 2923-25, that suggestion in no way justifies the drastic sepa-

ration requirements the Secretary now imposes. The GAO's over-

all conclusion was that Title X-funded clinics were in substantial

compliance with section 1008, See Report by the Comptroller Gen-

eral, J.A. at 82, 84, 86.

To the extent that the Secretary relies upon anecdotal evidence

of noncompliance with earlier requirements that counseling be non-

25

Much of the experience of the federal government sug-

gests that the Secretary is quite wrong in suggesting

that physical separation is necessary to enforce the pro-

hibition on the use of Title X funds for abortion.

Grantees and contractors who do business with the fed-

eral government are subjected to a multitude of prohibi-

tions, some concerning only the use of the funds supplied,

see, e.g., 2 U.S.C. § 441e (1988) (prohibitions on use of

funds for political contributions), and some that are

program or project-wide, see, e.g., 41 C.F.R. $ 60 ef seg.

(1989) (non-discrimination provisions). Yet it has never

been seriously suggested that enforcement of these pro-

hibitions requires the physical separation of the project

receiving the federal funds from the remainder of an

enterprise.

B. The Secretary’s Failure To Consider the Oppressive

Cost of the Physical Separation Requirement Ren-

ders the Requirement Arbitrary and Capricious

By failing to consider the prohibitive cost of comply-

ing with the physical separation requirements, and the

effects of that cost, the Secretary has failed to consider

an important aspect of the problem."' As originally pro-

posed, section 59.9 required the Secretary to deny fund-

ing to any Title X grantee located in the same building

as an abortion provider. Common office entrances and

exits were prohibited, and the use of common street or

mailing addresses “presumptively constitute!d! a failure

to separate adequately Title X-funded programs from

other programs which include abortion as a method of

family planning . .” 52 Fed. Reg. 33,214 (1987).

Merely leasing space in the same one-story building and

directive, 53 Fed. Reg. 2924-25, none of the examples have any

thing to do with the location of abortion providers relative to

Title X grantees.

44 As the Court stated in Metor Vehicle Manufacturers Associa

tion, “normally, an agency rule would be arbitrary and capricious

if the agency has... . entirely failed to consider an important aspect

of the problem... ." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43

(emphasis added ).

26

sharing a common waiting area automatically resulted in

a finding that the Title X program was “not ‘separate

and distinct, financially and physically,’ from abortion-

related activities.” /d."

.The Secretary’s proposals generated numerous com-

ments concerning their oppressive cost. In promulgating

the final rule, the Secretary conceded that “|m|any com-

ments, particularly those from state and local govern-

mental organizations, argued that the proposed restric-

tions would require a substantial investment in duplicate

facilities, personnel and so on, which would render Title

X funds uneconomic to accept.” 53 Fed. Reg. 2,938-39.

The Secretary’s response was to change the proposed

per se rules into “indicia of separation,” to be considered

on a case-by-case basis. Apparently, the Secretary be-

lieved that this change relieved him of any responsibility

to ascertain the likely impact of the rules. His response

to the comments concerning cost was that, like Scarlett

O'Hara, he vould think about it tomorrow:

Because of the adoption of a case-by-case determina-

tion . . . it is not possible to determine with any

precision the costs that grantees will face in ac-

commodating to the rules. However, the Department

would note that most of the actual or apparent re-

quirements of propesed * 59.9 that caused the most

concern regarding costs, such as the stated require-

ment for separate entrances and exits and the ap-

parent (although unintended) requirement to repave

parking lots, no longer constitute per se tests under

rules below. Certainly, the Department at this poin‘

does not have complete data about each of the 4,000

clinies presently in the program so that it could de-

termine how much, if any, expense each would incur

to maintain program integrity.

‘5 The regulation left open the possibility of some shared resource

“in exceptional cases where, as in the example of a large met

politan hospital with abortion and family planning services locater

in different wings, the fact of physical separation 4s otherwise

established and no tise of appropriated funds in an ineligible pro

gram is likely.” Jd

27

Id. at 2,940. The Secretary virtually conceded that he

had no informed view as to the costs of complying with

his physical separation rule or as to its resultant impact

upon the availability of Title X services. His inability

to reach an informed view of the cost of his own regula-

tions evinces the lack of a sufficient factual basis for his

decision. As the Court has explained,

It is not infrequent that the available data do not

settle a regulatory issue, and the agency must then

exercise its Judgment in moving from the fac‘s and

probabilities on the record to a_ policy conclusion.

Recognizing that policy making in a complex society

must ac ount for uncertainty, however, does not im-

ply that it is sufficient for an agency to merely re-

cite the terms ‘substantial uncertainty’ as a justifi-

cation for its actions. ... |T{he agency must ex-

plain the evidence which is available, and must offer

a ‘rational ecnnection between the facts found and

the choi-e made.’

Moton Vehicle Mfrs. Ass'n, 463 U.S. at 52 (quoting

Burlington Truck Lines, 371 U.S. at 168).

(. The Regulation Frustrates Statutory Intent To

Facilitate Provision of Health Care Services to

Title X Patients

1. Title X Is Intended To Integrate, to the Maxi-

mum Extent Feasible, Family Planning and

Other Health Care Programs

From the outset, the Department sought to integrate

Title X programs with other health care facilities in

order to facilitate the statutory goal of “making com-

prehensive voluntary family planning services readily

available to all persons desiring such services.” Pub, L.

No. 91-572, $211), 84 Stat. 1504 (19701. The Secre-

tary’s first five-year plan set forth as its goal the estab-

lishment of family planning programs in a wide variety

of preexisting health care facilities, including private

physicians’ offices, voluntary agencies, local health de-

partments, obstetrics clinics, and hospitals. Included in

28

that goal was the integration of family planning and

pregnancy or abortion services :

FE ifective interrelationships with the total health care

system for the benefit of the patient also requires

that ‘he project provide orientation in family plan-

ning to the personnel of other health and social serv-

ice programs which are, or may become sources of

referral, such as hospital emergency rooms, outpa-

tient clinies, drug rehabilitation programs, VD

clinics, abortion clinics, and welfare programs."

Accordingly, since 1971 the agency has made Title X

grants to programs collocated with abortion providers."

Subsequent pronouncements by Congress confirm the

statutory intent of facilitating wide access to family

planning services threugh “close coordination and, when-

ever possible, integration of family planning services into

all general health care programs. ... [T]he conferees

believe that family planning services under title X gen-

erally are most effectively provided in a general health

cettine and thus encourage coordination and integration

into programs offering general health care.” * Although

, Ri i r? if fie Ne rere / of Healtl . Rducati rv and Ws lfare

Nubmitting / ‘ ) oo? Play fev a mile Pla ning Ney ci and

Re [’ ) j fig S) ee } SN ii ” a? HH

/ ‘ f \ f ] a? ; fli d }? } at ‘ / ‘

2 Cong., Ist Sess. 518 (1971 emphgsis added

‘7 See Memorandum from Joel A. Mangel, Deputy Asst General

Counset. to Louis M. Hellman, M.D., Deputy Ass’t Secretary for

Population Affair Apr. 20, 1971), J.A. at 35

‘SHER. Conf. Rep. No. 1524, 93d Cong., 2d Sess. 58 (1974). See

Ss. Rep. 2 % Wth Cong. I 4 1O7 Flan

i I ‘ r title X gene ly a f t effective pt

led i we il health setting and th the Committee! encout

“as M7 {integration into all programs offering genera!

health care. In the ore reported case analyzing legislative intent

ne I i ritle XY ; I her health care

progran n ling those that provide abortier a federal dist)

ic | vn a ! r 7 X prograr be

) il narate from al lers ; at Title X’

ry intent. See Planned Parenthood v. Montana, 648 F. Sup

9G

Congress has been repeatedly advised that because of this

integration some Title X programs are located “down the

hallway” from abortion providers,’ it has made no at-

tempt to change that practice.

2. The Secretary’s Drastic Physical Separation Re-

quirements Frustrate the Statutory Goal of In-

tegration of Family Planning Services

As noted, the Secretary’s original proposal generated a

blizzard of negative comments. As to continuity of care,

the Secretary noted that “|n|umerous comments, par-

ticularly from public providers, argued that the trend in

public health has been to locate related services together,

to facilitate full utilization by clients of needed services.”

53 Fed. Reg. 2,939.

For all intents and purposes, the Secretary did not re-

spond to the comments concerning continuity of care. In

adopting the final rule, he stated, in relevant part:

The example typically cited—the Title X clinic that

is located at the same site as a project funded under

another program that provides genetic screening and

counseling may not he affected hy the re quire ments

revised, if the project can show that the later pro)j-

ect’s activities meet the separation indicia of £ 59.9

helow. To the extent the rules below minimize con-

ticity between family planning and abortion, this

is a result which the Department views as consist

ent with section 1008,

Id, at 2,941 (emphasis added).

This “response” leaves grantees totally at sea as to

what is required. It is also utterly at odds with the pur-

pose of Title X. First, the Secretary in effect conceded

that he did not know the extent to which his enforcement

of the physical separation requirements will impede con-

tinuity of care. Second, the Secretary conceded that, to

the extent that the rules do in fact impede continuity of

care, he chose to s ubordinate the stat tory objective to

his separation requirements. Third, in consciously dis-

4 — 1) > we Ww #4 . — — Bas P

bo ' sat ' 107s ie ; bet) .

30

rupting the continuity of care between abortion provid-

ers and family planning services, he willfully and unnec-

essarily burdened the ability of persons, in the aftermath

of abortion, to obtain family planning services. This

“response” cannot be reckoned with Congress’ clear in-

tent to provide continuity of care to Title X patients and

to expand the availability of family planning services.

CONCLUSION

For the foregoing reasons, amici curiae urge that the

judgment of the Court of Appeals be reversed.

Respectfully submitted,

DAVID M. BECKER *

JOAN M. GERHART

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Amici Curia:

Dated: July 27, 1990 * Counsel of Record