# 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%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 ## Text 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0727%3A17. Public record. Not legal advice.