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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990

## Text

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CASE NOS. 89-1391, 89-1392 [})
In The ei! WUL 27 amp

ISEPH F. SPANIOL, JR,

United States Supreme Court © o.°
La
October Term, 1990

DR. IRVING RUST, et al.,

Petitioner,
V.
DR. LOUIS SULLIVAN,
Respondent.
and
THE STATE OF NEW YORK, et al.,
Petitioner,
V.
DR. LOUIS SULLIVAN,

Respondent.

ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF OF ANTHONY J. CELEBREZZE, JR.,
ATTORNEY GENERAL OF OHIO,
ON BEHALF OF HIMSELF AND THE
ATTORNEYS GENERAL OF THE STATES OF
ALASKA, CALIFORNIA, CONNECTICUT, DELAWARE,
MAINE, MINNESOTA, NEBRASKA, NEW JERSEY,
OREGON, TEXAS, VERMONT AND VIRGINIA,
AND THE CORPORATE COUNSEL FOR
THE DISTRICT OF COLUMBIA,
AMICI CURIAE IN SUPPORT OF PETITIONERS

ANTHONY J. CELEBREZZE, JR.
Attorney General of Ohio

RITA S. EPPLER
Chief, Federal Litigation Section
(Counsel of Record)

SUZANNE E. MOHR

JACK W. DECKER

Assistant Attorneys General
State Office Tower, 26th Floor
30 East Broad Street
Columbus, Ohio 43266-0410
(614) 466-5414

[Other Counsel Listed Inside Front Cover]

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'

HONORABLE DOUGLAS B. BAILY
Attorney General of Alaska

P.O. Box K, State Capito!
Juneau, Alaska 99811-0300
(907) 465-3600

HONORABLE JOHN K.

VAN DE KAMP
Attorney General of California
1515 K Street
Sacramento, California 95814
(916) 324-7860

HONORABLE CLARINE NARDI
RIDDLE

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

(203) 566-2026

HONORABLE CHARLES M.

- OBERLY, Ill

Attorney General of Delaware

820 North French Street, 8th Floor
Wilmington, Delaware 19801

(302) 571-3838

HONORABLE HERBERT O.
REID, SR.

Corporate Counsel for the
District of Columbia

1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004
(202) 727-6248

HONORABLE JAMES E. TIERNEY

es oer. 2 a

HONORABLE ROBERT M. SPIRE
Attorney General of Nebraska
2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

HONORABLE ROBERT J.
DELTUFO

Attorney General of New Jersey

Richard J. Hughes Justice Complex

CNO80

Trenton, New Jersey 08625

(609) 292-4925

HONORABLE DAVE
FROHNMAYER

Attorney Genefal of Oregon

100 Justice Building

Salem, Oregon 97310

(503) 378-6002

HONORABLE JIM MATTOX
Attorney General of Texas
P.O. Box 12548

Capitol Station

Austin, Texas 78711

(512) 463-2100

HONORABLE JEFFREY L.
AMESTOY

Attorney General of Vermont

Pavilion Office Building

Montpelier, Vermont 05602

(802) 828-3171

HONORABLE MARY SUE TERRY
Attorney General of Virginia

101 N. 8th Street, 5th Floor
Richmond, Virginia 23219

(804) 786-3898

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Petitioners the State of New York and Dr. Irving Rust,
et a/., have presented four questions each for review. The

QUESTIONS PRESENTED

amici curiae herein wish to address the following:

1.

Do new regulations etapa by HHS
under Title X of the Public Health Service
Act which prohibit abortion counselling,
referral and advocacy in programs funded
under the Act and require physical
separation of Title X funded facilities and
facilities engaging in abortion-related
services, violate the woman’s and the health
professional's First Amendment rights?

Does the regulations’ prohibition of abortion
counselling and referral in a Title X-funded
program violate the woman's constitutionally
protected privacy right to make a fully
infomed decision on whether or not to
continue her pregnancy?

QUESTIONS PRESENTED ....... cece cece eee eeees i

TABLE OF CONTENTS

STATEMENT OF THE CASE .... 1... cece cece eeeees

INTEREST OF AMICI CURIAE ...... 26. e ee eee ee eens

SUMMARY OF ARGUMENT ..... 2... eee ee eee eee ees

ARGUMENT

THE TITLE X AMENDED REGULATIONS
WILL PROVIDE INCOMPLETE AND MiIS-
LEADING INFORMATION TO WOMEN
MAKING REPRODUCTIVE HEALTH DE-
CISIONS AND RESULT IN DETERIORATION
OF HEALTH CARE SERVICES TO LOW
INCOME WOMEN ...........--- eee eeeeeees

A. THE AMENDED REGULATIONS WILL
SUPPRESS THE FLOW OF COMPLETE
MEDICAL INFORMATION NECESSARY
FOR INFORMED CHOICE ............--

B. THE AMENDED REGULATIONS WILL
RESULT IN DETERIORATION OF
HEALTH CARE SERVICES TO THOSE IN
MOST DESPERATE NEED .............

THE DECISION OF THE SECOND CIRCUIT
CONTRAVENES RULINGS OF THIS COURT
WHICH PROTECT THE PRIVACY, LIBERTY,
AND FIRST AMENDMENT INTERESTS OF
WOMEN IN MAKING INFORMED CHOICES
REGARDING REPRODUCTIVE HEALTH,
AND WHICH PROHIBIT THE USE OF
FEDERAL SPENDING TO INFLUENCE
IMPROPERLY A STATE’S DISPOSITION OF
ITS OWN RESOURCES ................4.--

A. THE AMENDED REGULATIONS IMPOSE
AN IMPERMISSIBLE OBSTACLE TO A
WOMAN'S PERSONAL REPRODUCTIVE
CHOICE IN VIOLATION OF HER LIBERTY
AND PRIVACY RIGHTS AS PRO-
TECTED BY THE CONSTITUTION ..... 10

B. THE AMENDED REGULATIONS
VIOLATE THE FIRST AMENDMENT
RIGHTS OF TITLE X PATIENTS AND
HEALTH CARE PROVIDERS .......... 14

C. THE AMENDED REGULATIONS IMPOSE
UNCONSTITUTIONAL CONDITIONS
UPON THE EXPENDITURE OF STATE
FUNDS COMMITTED TO TITLE X

DE SUEC SCC Seccccceccccsceces 18
eee s ec ccc cc cccccccccccces 20
APPENDIX A- CALIFORNIA .................2.. A-1
PE oo ccc ccc cs ccccccccccccs A-3
APPENDIX C - MASSACHUSETTS .............. A-5
APPENDIX D - NEBRASKA ..................... A-7
ee ee ace wcccccccccccccece A-9
RUUD occ ccc ccccccccccccccece A-11
To A-13
a A-15

TABLE OF AUTHORITIES
CASES PAGE

Abrams v. United States,
EE Si ncecccccvonssecsoccccoace 19

American Communications Assoc. v. Douds,
SED Sci cdienendedeedeceoceccveces 17

Arkansas Writers’ Project v. Ragland,
GP PEED bivccdcocccivesscccevesecss 17

Bigelow v. Virginia,
BOT UE. GRIST ED ccc ch cc cwcccccccccesccccecs 18

Cammarano v. United States,
EEE dencccccsccdecéossoccete 16, 17

Canterbury v. Spence,
464 F.2d 772 (D.C. Cir.), cert. denied,
GP CEE. |b O66 cb e6ddcbeseededcroveces 11

City of Akron v. Akron Center for Reproductive
Health, 462 U.S. 416 (1983) ..........2- ee eee 11,14

Connick v. Myers,
Ge We SEED neve ce ccveccesccucccsscces 15

Consolidated Edison Co. v. Public Service Comm'n,
OF SE SE bd chb chess decoesidedsions 15, 16

Cruzan v. Missouri Dept. of Health,
58 U.S.L.W. 4916 (June 25,1990) ............... 11

Elrod v. Burns,
GF TR PEE « Be ewecccscccccecscccsess bee TO

F.C.C. V. League of Women Voters,
Se EE Scere ee sedcceccovccceses 16, 17

~_—————

Vv
CASES PAGE
Griswold v. Connecticut,

EE COME ae 10

Harris v. McRae,
448 U.S. 297, reh. denied,
PS Ee BUUED occcccccccccccocce 10, 14, 15, 17

Hodgson v. Minnesota,
58 U.S.L.W. 4957 (June 25,1990) ................ 6

Maher v. Roe,
Cs 10, 14, 15, 17

Massachusetts v. Secretary of Health and
Human Services, 899 F.2d 53 (8th Cir. 1990) .... 1,12

Perry v. Sindermann,
EE 17

Planned Parenthood of Missouri v. Danforth,
a kc ebeues 6

Police Dept. of Chicazo v. Mosley,
ee ee awake becccceccctoodes 16

Regan v. Taxation with Representation,
eee cee donee egecoecees 16

Reproductive Health Services v. Webster,
851 F.2d 1071 (8th Cir. 1988),

rev'd on other grounds, 109 S. Ct. 3040 (1989) .... 13
Roe v. Wade,
eben eeu ecceeteeceucdes 10

Rutan v. Republican Party of Illinois,
58 U.S.L.W. 4872 (June 21,1990) ............... 18

vi

CASES PAGE
Sherbert v. Verner,

EE +. oc ececesceebudedestecbente 18
Speiser v. Randall,

357 U.S. 513, reh. denied,

ks bec cecececeebeoen 16, 17,18
South Dakota v. Dole,

i CeCe bbb seni eeodsans 18, 20

State of New York v. Sullivan,
889 F.2d 401 (2d Cir. 1989) ................ 6, 8, 11

Sullivan v. Massachusetts,
Case No. 89-1929, 1990 U.S.
Oe i eee eeseceeee 1

Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986) ...... 11,14

United States v. Kokinda,
58 U.S.L.W. 5013 (June 27,1990) ............... 15

Webster v. Reproductive Health Services,

109 S. Ct. 3040 (1989) ............ 10, 13, 14, 15, 17
CONSTITUTIONAL PROVISIONS,
STATUTES, AND REGULATIONS

A; CG EE IE Wbkc G6 cdeGeecesecccocce 18

Ce Se eS cbc cscs acdtacuecsoées passim

Public Health Service Act, Title X, 42 U.S.C.A. Section 300
et seq. (West 1982) ........ cece cece ee eees passim

42 U.S.C.A. Section 300a-4 (West 1982) ............ 5

vii

PAGE
42 C.F.R. Section 59.2 (1988) ................008. 6,8
42 C.F.R. Section 59.8(a)(1) (1988) ................. 6
42 C.F.R. Section 59.8(a)(2) (1988) ................. 7
42 C.F.R. Section 59.8(a)(3) (1988) ................. 7
Ge er ee ND boccceccccccvcccccctceses 7
42 C.F.R. Section 59.8(b)(3) (1988) ................. 7
42 C.F.R. Section 59.8(b)(4) (1988) ................. 7
42 C.F.R. Section 59.8(b)(5) (1988) .............. 7,12
42 C.F.R. Section 59.9(1988) .................... 19
ee 7
OTHER AUTHORITIES

Comment, The Title X Family Planning Gag Rule:

Can Government Buy Up Constitutional Rights?

41 Stan. L. Rev. 401 (1989) ...................... 8
Dryfoos, Family Planning Clinics - A Story of

Growth and Conflict, 20 Fam. Plan. Persp.

ER A 15
Forrest, Delivery of Family Planning Services In

The United States, 20 Fam. Plan.

PEE San encccdadeedocescocnceses 5, 6, 7

Forrest and Singh, Public-Sector Savings Resulting
from Expenditures for Contraceptive Services,
22 Fam. Plan. Persp.6 (1990) ................... 9

viii —_

PAGE

Gold and Guardado, Public Funding of Family Planning,
Sterilization, and Abortion Services, 1987,
20 Fam. Plan. Persp. 228 (1988) ..........eeeeees 5

McCarthy, The Prohibition on Abortion Counseling
and Referral in Federally-Funded Family Planning
Clinics, 77 Calif. L. Rev. 1181 (1989) .............. 6

Rosoff, Taking Family Planning Out of Title X:
The Impact of the Proposed New Regulations,
19 Fam. Plan. Persp. 222 (1987) ............45- 6,8

Torres and Forrest, Family Planning Clinic Services
in U.S. Counties, 1983, 19 Fam. Plan.

Persp. 54 (1987) .......c cece cece cece een neeeeees 9

CASE NOS. 89-1391, 89-1392
In The 7
United States Supreme Court
October Term, 1989
DR. IRVING RUST, et al.,
Petitioners,
Vv.
DR. LOUIS SULLIVAN,
Respondent.
and
THE STATE OF NEW YORK, et al.,
Petitioners,
Vv.
DR. LOUIS SULLIVAN,
Respondent.

BRIEF OF AMICUS CURIAE
STATE OF OHIO IN SUPPORT OF PETITIONERS

STATEMENT OF THE CASE

Amici rely on the statement of the case set forth in the
Petitioner's brief.

INTEREST OF AMICI CURIAE

This brief is filed by Anthony J. Celebrezze, Jr., Attorney
General of Ohio, joined by the states of Alaska, California,
Connecticut, Delaware, Maine, Minnesota, Nebraska, New
Jersey, Oregon, Texas, Vermont and Virginia, and the
corporate Counsel for the District of Columbia.' Amici either

' Most state agencies that receive and disburse Title X funds are members
of the National Family Planning and Reproductive Health Association
(NFPRHA) and are plaintiffs-appellees in Massachusetts v. Secretary
of Health and Human Services, 899 F.2d 53 (8th Cir. 1990). This Court
denied a motion to consolidate the Massachusetts case with the instant
case. See Sullivan v. Massachusetts, Case No. 89-1929, 1990 U.S. Lexis
3528. The attorney general of Massachusetts is filing an amicus brief
and supports this amicus brief.

participate directly as Title X grantees, or have public or
private Title X grantees within their borders, through which
health care services are provided to hundreds of thousands
of citizens.2 Amici now join together to urge this Court to
reverse the judgment below.

The amended regulations to the Public Health Service Act,
Title X, if permitted to go into effect, will force the amici
to choose between accepting federal Title X funds under
an objectionable program, and forfeiting receipt of Title X
funding altogether. The former option will result in the
invasion of the physician-patient relationship and the first
amendment rights of both patients and health care providers;
the transmittal of incomplete, misleading, and in some cases,
medically dangerous information to pregnant women; and
the ultimate frustration of the right to make an informed,
independent decision whether to terminate a pregnancy. The
latter option will reduce the monies available to fund family
planning services. Either option will seriously undermine
effective family planning and related health care services
for low income women.

Agencies which both receive and disburse Title X funds
have a unique interest in the amended regulations. Most
of the amici provide matching funds from their own revenues
to support Title X projects. The regulations, as amended,
would expand the definition of “Title X Project” to require
that non-federal funds also be used to provide women with
misleading and possibly medically dangerous information
which will undermine their right of choice. The amendments
will impede the capacity of the amici to allocate state or
local funds to provide balanced post-conception counselling
and referral services even outside the ambit of the federal
Title X program.

2 All of the amici states have local Title X grantees within their borders.
State agencies in the amici states of Ohio, California, Nebraska, C gon,
Texas and The District of Columbia participate directiy in the /itle X
program.

SUMMARY OF ARGUMENT

Amici support and join in the arguments presented by
Petitioners and the American Public Health Association, et
al. This brief, however, will focus on issues of particular
concern to Ohio and the other amici.

The regulations at issue will result in provision of slanted
and misleading information to women and will undermine,
rather than promote, each woman's right to make an informed
reproductive health decision. The regulations require a Title
X physician to violate sound medical practice and
professional ethics; unless the patient's life is in immediate
danger, the amended regulations forbid a Title X physician
from discussing the abortion option with a woman even when
the abortion may be advisable to protect her health.
Consequently, the health of many patients will be jeopardized.
Many Title X providers are likely to refuse further participation
in the program should the regulations go into effect. The
low income women served by the program will have no
alternative sources of care. Inevitably, fewer women will
receive any family planning services. Consequently,
unintended pregnancies will increase, and government costs
for medical treatment, social services, and subsistence
payments will soar.

The amended regulations cannot be upheld under the
government's discretion not to fund certain programs,
because the amendments curtail pure speech, and do so
in a content-discriminatory manner. The regulations require
the dissemination of information about childbearing but
censor speech about abortion. The rigid exchange mandated
between patient and health care professional bears the
imprimatur of a government program, upon which the patient
relies for full information about her choices. In fact, the option
to terminate her pregnancy has not been disclosed. By
intentionally misleading the patient regarding her choices,
the regulations impose an impermissible obstacle to a
woman's liberty and privacy rights to make an informed
reproductive health decision.

in addition, the regulations impose an unconstitutional
condition upon the receipt of a government benefit. Title X
provides both grants to Title X clinics, ard subsidies for
medical, counselling and referral services to Title X patients.
As a condition to receiving these benefits, both the patient
and health care professional must relinquish their first
amendment rights to exchange information about the
termination of pregnancy. The first amendment prohibits the
federal government from imposing this gag on pure speech.

Finally, the regulations extend far beyond a mere restriction
on the use of federal funds. They redefine the scope of the
Title X project in such a way that matching funds provided
by amici would be swept within the new rules. The
amendments do not promote the public welfare, the
conditions for state participation are vague, th:: regulations
contravene the purpose of Title X funding, and the rules
would require state funds be used to defeat ihe constitutional
rights of Title X patients. These conditions on the expenditure
of state monies exceed constitutional limits on the spending
power of Congress.

ARGUMENT

|. THE TITLE X AMENDED REGULATIONS WILL
PROVIDE INCOMPLETE AND MISLEADING
INFORMATION TO WOMEN MAKING
REPRODUCTIVE HEALTH DECISIONS AND
WILL RESULT IN DETERIORATION OF
HEALTH CARE SERVICES TO LOW INCOME
WOMEN.

Title X of the Public Health Service Act authorizes grants
to for-profit and non-profit organizations “to assist in the
establishment and operation of voluntary family planning
projects,” primarily for low income families. 42 U.S.C.A.
Sections 300, et seq. (West 1982). Direct or indirect Title
X grantees include state, county, and municipal health
departments, family planning clinics, hospitals and
community health organizations. Nationwide, there are about
2,500 different agencies operating some 5,100 clinics; eighty

percent of these receive Title X funding. Clinics operated
by public health departments serve about forty percent of
family planning patients. Forrest, Delivery of Family Planning
Services in the United States, 20 Fam. Plan. Persp. 88, 92
(1988) [hereinafter Delivery of Services ].

In 1987, federal and state governments spent a total of
386 million dollars for family planning services. Title X grants
accounted for thirty-four percent of this total. Other federal
funding sources included Medicaid reimbursement, Social
Services block grants, and Maternal and Child Health block
grants. State governments provided thirteen percent of the
total public funding for family planning services. Gold and
Guardado, Public Funding of Family Planning, Sterilization
and Abortion Services, 1987, 20 Fam. Plan. Persp. 228 (1988).
States which receive Title X funds are required to provide
a minimum of ten percent in matching funds. 42 U.S.C.A.
Section 300a-4(West 1982).

A sampling of eight amici states shows over 1.1 million
women received family planning services through Title X
regulated programs in these states alone.* See Appendices
A-H. Public funding from combined sources in these eight
States amounted to over 117 million dollars, twenty-eight
percent of which was from federal Title X grants. /d. The
eight states provided twenty percent of family planning
services support for a total contribution of more than 24
million dollars. /d.

Nationwide, subsidized clinics serve nearly five million
women per year. Ninety percent of these women receive
pregnancy prevention services. Nine percent of all visits
(thirteen percent of all initial visits, and twenty percent of
all visits by teenagers) involve a pregnancy test. Only about
four percent of all patients are pregnant when they come

* California, Maine, Massachusetts, Ohio, Vermont and Virginia provided
statistics showing the total women served in 1989 and funds allotted
for 1990. See Appendices A-C, E, and G-H. Nebraska and Texas provided
statistics showing the total women served and funds allotted for calendar
year 1989. See Appendices D and F.

to the clinic. Rosoff, Taking Family Planning Out of Title X:
The Impact of the Proposed New Regulations, 19 Fam. Plan.
Persp. 222, 223 (1987) [hereinafter New Regulations ]}.

The Title X clientele is composed of those women in
greatest need of objective information about their health and
pregnancy options, and those least able to obtain that
information independent of public assistance. Eighty-three
percent of clinic patients have incomes below 150 percent
of the poverty line. Thirteen percent receive welfare. Thirty-
two percent are under 20 years of age, and 14 percent are
under 18 years of age. Delivery of Services at 92. A teenager
is in particular need of “mature advice and emotional
support” in making the “grave decision” whether to carry
a child to term. Hodgson v. Minnesota, 58 U.S.L.W. 4957,
4974 (June 25, 1990) (Kennedy, J. Concurring and
Dissenting). See also, Planned Parenthood of Missouri v.
Danforth, 428 U.S. 52, 91 (1976) (Stewart, J., Concurring).

A. THE AMENDED REGULATIONS WILL
SUPPRESS THE FLOW OF COMPLETE
MEDICAL INFORMATION NECESSARY FOR
INFORMED CHOICE.

Despite Congress’ numerous refusals to aiwend Title X
to bar use of federal funds to inform women of the availability
of abortion, the United States Department of Health and
Human Services (hereinafter HHS) elected to accomplish the
same result in 1987 by administratively “reinterpreting” the
Act. See McCarthy, The Prohibition on Abortion Counseling
and Referral in Federally-Funded Family Planning Clinics,
77 Calif. L. Rev. 1181, 1183 (1989). In so doing, HHS rejected
its own longstanding position that the Act required “non-
directive” counselling of pregnant patients regarding both
abortion and its alternatives. State of New York v. Sullivan,
889 F.2d 401, 405 (2d Cir. 1989).

The HHS regulations now declare the Title X family
planning function must terminate with pregnancy and forbid
the clinic to provide counselling or referrals for an abortion.
42 C.F.R. Sections 59.2 and 59.8(a)(1) (1988). However, the

clinic is affirmatively required to refer the pregnant patient
“for appropriate prenatal and/or social services by furnishing
a list of available providers that promote the welfare of mother
and unborn child,” except when an emergency abortion is
required to protect the life of the mother. 42 C.F.R. Section
59.8(a)(2) (1988). Any referral list given to the patient must
exclude “health care providers whose principal business is
the provision of abortions,” but may not exclude, for any
reason, any agency which does not provide abortions. 42
C.F.R. Section 59.8(a)(3) and (b)(4) (1988). Under the amended
regulations a physician would be preciuded from raising the
issue of abortion or responding to questions raised by a
patient, even if childbearing would threaten the health of
the mother, or pose a non-emergency threat to the life of
the mother. 42 C.F.R. Section 59.8(b) (1988).

In case there is any doubt about the meaning or intent
of the regulations, it is resolved by the examples contained
therein. If a patient asks her physician whether an abortion
is medically advisable, or even simply requests a referral
for an abortion, the response, scripted by the amended
regulations, must be, “The project does not consider abortion
an appropriate method of family planning and therefore does
not counsel or refer for abortion . . . [T]he project can help
[you] to obtain pre-natal care...” 42 C.F.R. Section 59.8(b)(5)
(1988). The woman must then be given a list of all providers
of pre-natal care from which any providers whose principal
business is abortion have been excised.‘ The list may neither
include an abortion clinic, nor exclude a provider of pre-
natal services. 42 C.F.R. Sections 59.8(b)(3) and (b)(4) (1988).
A woman requesting abortion referral services may not even
be given the Yellow Pages to locate and call an abortion
provider herself, since the telephone book constitutes a “list”
which may contain “forbidden” providers. 53 Fed. Reg. 2922,
2942 (1988).

* This requirement censors referrals to most possible abortion sources
for low income women. Eighty-three percent of ali induced abortions
are performed at specialized abortion clinics. in 1983, only three percent
of family practitioners and forty-two percent of gynecologists would
provide an abortion. Delivery of Services at 90.

In the decision below, the concurring judge found these
regulations “jeopardize[ ] the ability of Title X physicians to
safeguard the health of those seeking their expert advice.”
State of New York v. Sullivan, 889 F.2d at 415 (Cardamone,
J., concurring). The ban on providing even a telephone book
to a needy client was deemed “a small and petty contrivance,
inconsistent with our nation’s high principles.” /d. The HHS
regulations not only frustrate a woman's individual choice,
but also affect the entire health care system for low income
women.

B. THE AMENDED REGULATIONS WILL RESULT
IN DETERIORATION OF HEALTH CARE
SERVICES TO THOSE IN MOST DESPERATE
NEED.

The reach of the amended regulations extends far beyond
the mere expenditure of federal dollars. “Title X Programs”
and “Title X Projects” as redefined include not only direct
federal subsidies, but any other funds, public or private, used
in the Title X project. 42 C.F.R. Section 59.2 (1988). If a state
contributes to the Title X project, or if the clinic uses its
own private funds to support Title X activities, the use of
these alternative funds is likewise held hostage to the Title
X requirements, and is gagged as well.

lf subjected to the new regulations, fewer practitioners will
remain available to serve Title X patients. The right to
informed consent based on full information is central to the
codes of ethics for all professional groups which provide
pregnancy-related services. See New Regulations at 224.
The National Family Planning and Reproductive Health
Association (NFPRA), which represents eighty-five percent
of Title X recipients, predicts that the majority would refuse
to subject themselves to the new regulations. Comment, The
Title X Family Planning Gag Rule Can the Government Buy
Up Constitutional Rights? 41 Stan. L. Rev. 401, 408 (1989).
Providers of family planning services to low income women
cannot easily be replaced. As it is, of the 9.5 million women
in this country with family incomes below 150 percent of
the poverty level, 4.5 million are receiving no organized family

planning services. Torres and Forrest, Family Planning Clinic
Services in U. S. Counties, 1983, 19 Fam. Plan. Persp. 54,
57 (1987).

Publicly funded family planning services, which will be
sacrificed because of ideological objections to balanced
counselling and referral for the four percent of Title X patients
who are pregnant, play an indispensable role in preventing
millions of unintended pregnancies. Researchers estimate
the use of contraceptives from publicly funded sources is
responsible for preventing up to 3.1 million unintended
pregnancies annually. Forrest and Singh, Public-Sector
Savings Resulting from Expenditures for Contraceptive
Services, 22 Fam. Plan. Persp. 6, 11 (1990). Savings in public
social service and welfare costs from contraceptive use by
women relying on publicly funded providers represents up
to $11.26 for each dollar spent to provide family planning
services; the annual savings is an estimated 4.6 billion dollars.
Id. at 11-12. Thus a cost beneficial program is scuttled to
prevent four percent of the women it serves from discovering
that they may obtain an abortion.

The regulations pose a Hobson's choice for any states
which do not agree that pregnant women are best served
by state-enforced ignorance of their options. If states forego
Title X assistance, less funding will remain to subsidize Title
X services. If states remain in the program, their own funds
will be held hostage to requirements with which the states
may vehemently disagree, many providers will refuse to
participate, and those who remain will be required to conceal
opticns when medical judgment may mandate disclosure.
Either way, services to low income women and teenagers
will suffer.

ll. THE DECISION OF THE SECOND CIRCUIT
CONTRAVENES RULINGS OF THIS COURT
WHICH PROTECT THE PRIVACY, LIBERTY,
AND FIRST AMENDMENT INTERESTS OF
WOMEN IN MAKINC 'NFORMED CHOICES
REGARDING THEIR REPRODUCTIVE
HEALTH, AND WHICH PROHIBIT THE USE

10

OF FEDERAL SPENDING TO INFLUENCE
IMPROPERLY A STATE’S DISPOSITION OF
ITS OWN RESOURCES.

This Court has held that the government may, in the
exercise of its spending powers, flatly decline to pay for the
medical procedure of abortion, Harris v. McRae, 448 U.S.
297, reh. denied, 448 U.S. 917 (1980); Maher v. Roe, 432
U.S. 464 (1977); or refuse to permit the procedure to be
performed in government-owned facilities, Webster v.
Reproductive Health Services, 109 S. Ct. 3040 (1989),
notwithstanding a woman's constitutional right to freedom
of reproductive choice. Roe v. Wade, 410 U.S. 113 (1973),
Griswold v. Connecticut, 381 U.S. 479 (1965). This Court's
decision in Webster did not address the issues presented
herein, as the majority concluded the first amendment
question presented by the prohibition of abortion counselling
and referral by publicly funded family planning clinics was
moot. 109 S. Ct. at 3053-54. It was noted that a constitutional
issue could arise if the statute were interpreted to prohibit
publicly employed health professionals from giving specific
medical advice. /d. at 3060 (O’Connor J., concurring), 109
S. Ct. at 3069 n.1 (Blackmun J., concurring/dissenting).

A. THE AMENDED REGULATIONS IMPOSE AN
IMPERMISSIBLE OBSTACLE TO A WOMAN'S
PERSONAL REPRODUCTIVE CHOICE IN
VIOLATION OF HER LIBERTY AND PRIVACY
RIGHTS AS PROTECTED BY THE
CONSTITUTION.

Whatever degree of constitutional protection a woman's
choice to terminate her pregnancy may enjoy, it is clear that,
at the very least, the government may not impose obstacles
to thwart the abortion decision. Harris v. McRae, 448 U.S.
at 314; Maher v. Roe, 432 U.S. at 473. The HHS regulations
fail even this minimal test.

This Court’s decisions have made it clear that central to
the woman’s privacy right is the opportunity to make an
informed decision. See Thornburgh v. American College of

11

Obstetricians and Gynecologists, 476 U.S. 747, 759, 762
(1986); City of Akron v. Akron Center for Reproductive Health,
462 U.S. 416, 429-30 (1983). As observed in another context
by the United States Court of Appeals for the District of
Columbia Circuit:

The root premise is the concept, fundamental
in American jurisprudence, that “[e]very human
being of adult years and sound mind has a right
to determine what shall be done with his own body
.... True consent to what happens to one’s self
is the informed exercise of a choice, and that entails
an opportunity to evaluate knowledgeably the
options available and the risks attendant upon
each. The average patient has little or no
understanding of the medical arts, and ordinarily
has only his physician to whom he can look for
enlightenment with which to reach an intelligent
decision.

Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert.
denied, 409 U.S. 1064 (1972) (emphasis added) (footnotes
omitted), cited in Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. at 799 (White, J.,
dissenting); see also Cruzan v. Missouri Dept. of Health, 58
U.S.L.W. 4916, (June 25, 1990).

The Second Circuit determined, on the basis of Maher,
Harris, and Webster, that no one has the “right” to federally-
funded abortion counselling. State of New York v. Sullivan,
889 F.2d at 410-12. The lower court reasoned that a pregnant
woman, therefore, is left in the same position as if the
government had funded no counselling at all, and none of
her rights are infringed. /d. The conclusion, that a woman
is constitutionally unharmed by this funding decision, defies
reality, and constitutes slight of hand with what is actually
being funded.

Despite the regulations’ disingenuous disclaimer that
pregnancy counselling and referral are now beyond the
scope of Title X family planning services, the rules do provide

12

for federal funding of a counselling and referral conversation
between health care professional and patient. The Title X
clinic is required to “counsel” the patient by telling her that
the project deems abortion to be an inappropriate option,
and it must “refer” her to providers of pre-natal care even
if she inquires about an abortion. 42 C.F.R. Section 59.8(b)(5)
(1988). Rather than simply refusing to subsidize counselling
and referral, the regulations endeavor to censor the contents
of the funded counselling and referral to conceal the abortion
option from the patient.

Therefore, the patient does not remain in the same position
as she would have been had the government decided not
to fund any Title X services. As found by the First Circuit:

We are particularly struck by the effect these
restrictions have on poor women who are forced
to rely on Title X clinics. They are significantly worse
off than they would have been if the government
had not provided the clinics because they have
received misinformation rather than no information
about their options. In addition, because most Title
X clients pay a portion of the cost of the services
(based on a sliding scale), the client's ability to go
elsewhere has been significantly diminished
because she has already paid what she could afford
to the Title X clinic.

Massachusetts v. Secretary of Health and Human Services,
899 F.2d 53, 70 (1st Cir. 1990) (en banc).

The amended regulations pose a trap for the
unsophisticated and unwary patient. The exchange between
the woman and Title X professional has all the appearances
of government-sponsored counselling and referral, from
which the patient is likely to conclude she has received full
information. But only an incomplete counselling and referral
has occurred, and the patient has been affirmatively misled.

The government can therefore arguably remain neutral,
in the same sense it has been deemed by this Court to remain

13

neutral in refusing to fund the entire abortion procedure,
only by refusing entirely to fund any counselling and referral
procedure. Neutrality can be accomplished only either by
full disclosure of all options or by refusal to discuss either
abortion or childbirth options with the patient, and by refusal
to make any referrals to either pre-natal care or abortion
service providers.’ Otherwise, the regulations do not simply
fail to remove obstacles to abortion; they create obstacles.

This case does not present a question which may be simply
resolved on the basis of the government's power to tax and
spend. The distorted information required to be dispensed
compromises the patient’s right to make a fully informed
choice. As found by the Eighth Circuit in striking down a
similar state ban on the use of state funds to counsel or
encourage abortion:

We think that the state’s analogy of its ban on
“encouraging or counselling” to bans on public
abortion funding is completely inapt. Missouri is
not simply declining to fund abortions when it
forbids its doctors to encourage or counsel women
to have abortions. Instead, it is erecting an obstacle
in the path of women seeking full and uncensored
medical advice about alternatives to childbirth. The
state's limitation on doctor-patient discussions
reflects the state’s choice for childbirth over
abortion in a way that prevents the patient from
making a fully informed and intelligent choice.

Reproductive Health Services v. Webster, 851 F.2d 1071, 1080
(8th Cir. 1988), rev'd on other grounds, 109 S. Ct. 3040 (1989).
This finding was not disturbed in this Court's Webster
decision. See supra at 10.

* Of course, a refusal to provide any counselling or referral would not
be consistent with the authorizing statute. 42 U.S.C.A. Sections 300,
et seq. (West 1982). Nor would a ban on providing any information about
health risks on abortion necessarily comport with the woman's privacy
and liberty interests in informed consent, or with the first amendment.

14

In City of Akron v. Akron Center for Reproductive Health,
462 U.S. at 444-45, this Court struck down an ordinance
which required the physician to inform the patient of a
“parade of horribles” which implied that the abortion
procedure was particularly dangerous. The compulsory
provision of misinformation to the patient was deemed to
have imposed an “undue obstacle” to her freedom of
reproductive choice. Eventually, even two of the three
dissenters in City of Akron apparently agreed with this result:

| have no quarrel with the general proposition, for
which | read Akron to stand, that a campaign of
state promulgated disinformation cannot be
justified in the name of “informed consent” or
“freedom of choice.”

Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. at 800 (White, J., joined by Rehnquist,
J., dissenting).

One is unable to choose between two options if one is
kept unaware by the government that one has a choice at
all. Deliberately incomplete and misleading information about
one’s options is indistinguishable from the “disinformation”
at issue in City of Akron. Consequently, the result in this
case should be the same. Because the counselling and
referral required by the amended regulations create the
impression of full disclosure while concealing the option to
terminate pregnancy, the government has imposed an
impermissible obstacle to a woman's right to choose. This
Court should find the amended regulations violate the
constitutional privacy and liberty interests in freedom of
reproductive choice.

B. THE AMENDED REGULATIONS VIOLATE THE
FIRST AMENDMENT RIGHTS OF TITLE X
PATIENTS AND HEALTH CARE PROVIDERS.

Maher, Harris, and Webster held that the government's
control over its own purse strings justified a refusal to fund,
or permit on its premises, abortion procedures, while at the

15

same time funding and permitting childbirth procedures.
These cases did not reach the question whether the federal
government may use its considerable taxing and spending
powers to suppress speech regarding the advisability of
abortion. Because the contested rules directly suppress
speech, the reliance placed by HHS and the Second Circuit
on Maher, Harris, and Webster is misplaced.

Certainly, the government may constitutionally warn its
citizens of the risks of smoking or the evils of drug abuse.
A traditional public health campaign is designed to impart
information, not to censor it — to persuade, not to manipulate.
The HHS regulations, however, embody a program of official
subterfuge, the thrust of which is not merely to take sides
in the abortion debate, but to squeich any debate by hiding
the abortion option. As opposed to persuasion, official
manipulation and censorship offend the core values of the
first amendment.

This case does not involve internal management of a
proprietary governmental operation, United States v. Kokinda,
58 U.S.L.W. 5013, 5014-15 (June 27, 1990) (plurality opinion),
or the rights of government employees, Connick v. Myers,
461 U.S. 138 (1983), where first amendment rights must
sometimes yield to the government's interests as an
employer. Here the government is granting a subsidy to
private or independent public health care professionals,
many of whom were providing family planning and abortion
referral services long before Title X was enacted. Dryfoos,
Family Planning Clinics-A Story of Growth and Conflict, 20
Fam. Plan. Persp. 282, 283 (1988). The decisions of this Court
are clear that the government cannot condition receipt of
a government subsidy upon manipulation of first amendment
rights of the grantees.

In Consolidated Edison Co. v. Public Service Comm'n, 447
U.S. 530 (1980), this Court struck down a state regulation
which forbade a public utility from inserting into its billings
any discussion of “political matters,” including advocacy of
nuclear power. Naturally, public utilities are heavily regulated
entities which enjoy a state subsidy in the form of a state-

16

created monopoly. /d. at 549 (Blackmun, J., dissenting). This
Court noted:

The First Amendment's hostility to content-based
regulation extends not only to restrictions on
particular viewpoints, but also to prohibition of
public discussion of an entire topic. .. . If the
marketplace of ideas is to remain free and open,
governments must not be allowed to choose “which
issues are worth discussing or debating” To allow
a government the choice of permissible subjects
for public debate would be to allow that government
control over the search for political truth.

ld. at 537-38, quoting, Police Dept. of Chicago v. Mosley,
408 U.S. 92, 96 (1972) (additional citations omitted).

Other decisions of this Court have clearly suggested that
the government's privilege to subsidize or refuse to subsidize
speech ends where the funding choice is no longer content-
neutral. Regan v. Taxation with Representation, 461 U.S. 540
(1983), involved federal subsidies to charitable organizations
in the form of tax deductions for contributions to these entities.
This Court held that Congress could refuse to subsidize all
lobbying activities by 501(c)(3) charitable organizations
without violating those organizations’ first amendment rights.
This Court was careful to point out, however, that the
restriction on deductability for lobbying was content neutral.
“The case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to “’ai[m] at
the suppression of dangerous ideas.” /d. at 548, citing,
Cammarano v. United States, 358 U.S. 498, 513 (1959),
quoting, Speiser v. Randall, 357 U.S. 513, 519, reh. denied
358 U.S. 860 (1958).

Similarly, in F.C.C. v. League of Women Voters, 468 U.S.
364 (1984), this Court struck down a prohibition of on-air
“editorializing” by publicly-subsidized educational television
stations. While arguing the content-neuitral ban should be
upheld as a permissible election not to subsidize on-air
editoralizing, the dissent noted:

17

This is not to say that the Government may attach
any condition to its largess; it is only to say that
when the Government is simply exercising its
power to allocate its own public funds, we need
only find that the condition imposed has a rational
relationship to Congress’ purpose in providing the
subsidy and that it is not primarily ““aimed at the
suppression of dangerous ideas.”*"”

ld. at 407, (Rehnquist, J., dissenting), quoting Cammarano
v. United States, 358 U.S. at 513, in turn quoting Speiser
v. Randall, 357 U.S. at 519, in turn quoting American
Communications Assoc. v. Douds, 339 U.S. 382, 402 (1950).
See also Arkansas Writers’ Project v. Ragland, 481 U.S. 221
(1987).

Because the challenged regulations directly affect speech
in either a content-or viewpoint-discriminatory manner, and
are manifestly aimed at suppressing the “dangerous idea”
of abortion, they cannot be upheld on the basis of Maher,
Harris, and Webster.

Rather, this Court has long held that the state may not
condition receipt of a valuable benefit on the forfeiture of
a constitutional right. In Perry v. Sindermann, 408 U.S. 593,
597 (1972), the Court declared:

For at least a quarter-century, this Court has
made clear that even though a person has no “right”
to a valuable governmental benefit and even though
the government may deny him the benefit for any
number of reasons, there are some reasons upon
which the government may not rely. It may not deny
a benefit to a person on a basis that infringes his
constitutionally protected interests—especially his
interest in freedom of speech . ... This would allow
the government to “produce a result which [it] could
not command directly.”

Citing Speiser v. Randall, 357 U.S. at 526 (tax exemption
subsidy cannot be conditioned on forced speech); see a/so

18

Rutan v. Republican Party of Iilinois, 58 U.S.L.W. 4872 (June
21, 1990); Elrod v. Burns, 427 U.S. 347 (1976) (conditions
of public employment cannot be conditioned on forfeiture
of rights to political association); Sherbert v. Verner, 374 U.S.
398 (1963) (unemployment benefits cannot be conditioned
on relinquishment of religious convictions).

Clearly, the federal government could not condition tax
benefits to Title X clinics on whether abortions were advised.
Nor could all welfare benefits be cut off to women who
advocate abortion. Nor may HHS condition the grant of Title
X subsidies to family planning providers, and the grant of
Title X subsidized counselling and referral services to low
income women, on both parties’ relinquishment of their
mutual first amendment rights to exchange full and complete
information about reproductive choices. See Bigelow v.
Virginia, 421 U.S. 809 (1975).

C. THE AMENDED REGULATIONS IMPOSE
UNCONSTITUTIONAL CONDITIONS UPON
THE EXPENDITURE OF STATE FUNDS
COMMITTED TO TITLE X PROJECTS.

In addition to jeopardizing seriously the interests of women
in full information regarding their reproductive health, and
inhibiting the ability of health care professionals to provide
this information, the amended regulations also affect the
ability of states to use state revenues as they see fit to fund
Title X projects. The amended regulations redefine “Title X
project” to include not only the federal Title X grant, but
also state, local, or private funds.

The regulations run afoul of the Constitution's Spending
Clause. U.S. Const. art. |, Section 8. in South Dakota v. Dole,
483 U.S. 203, 207-08 (1987), this Court recently summarized
the four separate constitutional limitations upon federal use
of its spending power to influence a state’s exercise of its
own constitutional powers: 1) the federal spending exercise
must be in pursuit of the “general welfare,” and Congress
is entitled to substantial deference in determining what the
“general welfare” may be; 2) any conditions on state

t

19

acceptance of the grant must be unambiguous, in order that
the state may know in advance the consequences of its
participation; 3) the conditions must be related to the purpose
of the federal expenditure; and 4) the federal spending power
may not be used to induce the states to engage in activities
which are themselves unconstitutional. The amended
regulations fail all four tests.

First, keeping women in the dark regarding their
“eproductive options is not in anyone's best interest. Rather,
this approach is directly antithetical to the philosophy, firmly
embedded in the first amendment, that the public interest
is best served by the free competition of ideas in the
marketplace of public opinion. Abrams v. United States, 250
U.S. 616, 630 (1919) (Holmes, J., dissenting). Further, as
eloquently detailed in the amicus brief of the American Public
Health Association, there are numerous circumstances under
which the absolute prohibition on abortion referral will result
in serious jeopardy to the health of the mother and will violate
sound medical practice. Moreover, it is impossible to give
deference to Congress’ determination of the public interest
when the amended regulations appear more a product of
administrative fiat than an expression of Congressional intent.
See Petition of State of New York et a/., pp. 16-24; Petition
of Dr. Irving Rust, pp. 20-27.

Second, some of the regulations impose conditions on
State spending which are far from clear. For example, 42
C.F.R. Section 59.9 (1988) requires that at least some
personnel or facilities used for “prohibited activities” be
separate from those used for Title X activities, even if the
prohibited activities are not funded by Title X. The separation
requirements are merely factors to be considered by the
Secretary of HHS in deciding whether a grantee is in violation
of the regulations. The rule contains virtually no standards
from which HHS bureaucrats may determine compliance,
except that “mere bookkeeping separation” is insufficient.
ld. Participating states will remain unsure under what
circumstances they may separately fund “prohibited”
abortion counselling and referral activities, without
undergoing the crippling expense of employing separate

20

personnel or obtaining separate physical facilities.

Third, Titie X is, first and foremost, a public health program.
The amended regulations operate in a manner contrary to
the Congressionally mandated purpose for the spending, in
the same manner that they operate contrary to the “public
welfare.” Fourth, the amended regulations would induce the
states to use state monies to support services performed
in a manner that violates the constitutional rights of women
and health care professionals.

The new regulations reflect far more than a value judgment
affecting the expenditure of federal dollars. The regulatory
scheme also conditions states’ participation in Title X upon
state acceptance of identical limitations on use of state funds,
regardiess cf state policy. And the rules construct obstacles
to the states’ separate funding of balanced counselling and
referral services which cannot be justified by the need to
account separately for Title X funds. Therefore, the amended
regulations are unconstitutional under South Dakota v. Dole.

CONCLUSION

For all the foregoing reasons, the Court should reverse
the decision of the Second Circuit Court of Appeals.

Respectfully submitted,
ANTHONY J. CELEBREZZE, JR.
Attorney General

RITA S. EPPLER
Chief, Federal Litigation Section
(Counsel of Record)

SUZANNE E. MOHR

JACK DECKER

Assistant Attorneys General
State Office Tower, 26th Floor
30 E. Broad Street

Columbus, Ohio 43266-0410
(614) 466-5414

A-1
CALIFORNIA
(D) (E) (F) (G)
(A) (B) (C)
Women
at or Total
below Non- State MCH Columns
Total 150% of _—‘TitlexX ' Title X Funds Block (C) - (F)
Women poverty Award

Los Angeles
Regional Family
Planning $9,127,980 $7,505,700 N/A $21,475,011
Council 151,609 129,949 $4,841,331
California
Family
Planning 18,739,469 N/A N/A 26,222,818
Council 262,959 216,391 7,483,349

$27,867,449 $7,505,700 $ N/A $47,697,829
TOTALS 414,568 346,340 $1 2,324,680 58.42% 15.74% 100%

25.84%

NOTES:

1. Total number of women served and dollars reflected
represents Basic Contraceptive Services for fiscal year
1988-1989.

2. N/A = Information is not available.

3. Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal
peverty guidelines.

4. The total of Columns C-F reflects funds that are subject
to Title X regulations.

5. California Family Planning Council (CFPC) requires
reporting by agencies of non-Title X funds. This total
amount, including state funds, is reflected in Column (D).
A detailed breakdown of non-Title X funds is not available
for CFPC.

A-3
MAINE
(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
Family
Planning
Association
of Maine 32,460 24,353 $818,000
19.79%
NOTES:

1.

Total number of women served (Column A) reflects 1989
figures. The balance of the Columns (C-G) reflect figures
from fiscal year 1990.

Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal
poverty guidelines.

The total of Columns C-F reflects funds that are subject
to Title X regulations.

(D)

Non-
Title X

$1,875,000

45.37%

A-4

(E) (F)

State MCH
Funds Block

$1,440,000 $ -0-

34.84%

(G)

Total
Columns
(C) - (F)

$4,133,000

100%

A-5
MASSACHUSETTS
(A) (B)
Women
at or
below
Total 150% of
Women poverty
Family Planning
Clinics 88,000 76,560

NOTES:

1. Total number of women served (Column A) reflects 1989
figures. The balance of the columns (C-G) reflect figures

from calendar year 1989.

2. Column B reflects the number of women in Column A
whose incomes are at or below 200% of the federal

poverty guidelines.

3. The total of Columns C-F reflects funds that are subject

to Title X regulations.

(C)

Title X
Award

$3,055,425

37.47%

(D) (E)
Non- State
Title X Funds
$2,640,000 $2,460,000
32.37% 30.16

(G)

Total
Columns

(C) - (F)

$8,155,425

100%

A-7
NEBRASKA
(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
Nebraska
Department
of Health 24,521 19,369 $935,000
41.28%
NOTES:

%

Total number of women served (Column A) reflects 1989
figures. The balance of the Columns (C-G) reflect actual
figures from fiscal year 1989.

Total in Column A reflects unduplicated female users.

The total in Column B reflects the total unduplicated
female users in Column A whose incomes are at or below
150% of the federal poverty guidelines.

Non-Title X includes first, second and third party
reimbursement such as patient fees, insurance, and
medicaid as well as funds from other source.

Maternal and Child Health Block Grant.

~~.

en

va ee

Pe sale

A-8

(D) (E) (F)
Non- State MCH
Title X Funds Block
$1,069,853 $ -0- $259,964
47.24% 11.48%

(G)

Total
Columns

(C) - (F)

$2,264,817

100%

OHIO

Ohio Dept.
Of Health

Federation

For Community
Planning
(Cleveland)

Planned
Parenthood
Summit, Portage
and Medina
Counties

Planned
Parenthood
Central Ohio

TOTALS

NOTES:

1. Total Women provided family planning services through
Title X activities.

2. Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal

A-9

(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
87,787 73,137 $2,932,323
28,685 27,369 1,017,761
15,051 13,490 525,230
10,543 9,054 435,770
142,066 123,050 $4,911,084
38.17%

poverty guidelines.

3. Non-Title X includes first, second and third party
reimbursement such as patient fees, insurance and

medicaid as well as agency operating funds.

(D)

Non-
Title X

$3,219,015

1,232,863

1,518,763

1,064,230

$7,034,871

54.68%

A-10
(E) (F)
State MCH
Funds Block
$431,000 $275,000
126,500 -0-
55,000 -0-
33,000 -0-
$645,500 $275,000
5.02% 2.14%

(G)

Total
Columns

{C) - (F)

$6,857,338

2,377,124

2,098,993

1,533,000

$12,866,455
100%

5. The total of Columns C-F reflects funds athat are subject
to Title X regulations.

TEXAS
(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
Texas Dept.
of Health 328,497 244,730 $7,960,524
28.99%
NOTES:

1.

Total number of women served (Column A) reflects 1989
figures. The balance of the columns (C-G) reflect figures
from calendar year 1989.

Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal
poverty guidelines.

The total of Columns C-F reflects funds that are subject
to Title X regulations.

Column D includes additional state money in th form
of matching funds which cannot be distilled from the
other funds.

(D)

Non-
Title X

$13,502,198

49.16%

A-12
(E) (F) (G)
Total
State MCH Columns
Funds Block (C) - (F)

$3,540,301 $2,460,209 $27,463,232

12.89% 8.96% 100%

A-13

VERMONT
(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
Planned
Parenthood of ©
Northern
New England 11,650 6,443 $425,962
Vermont
Department of
Health 6,358
TOTALS 11,650 6,443 $432,320
24.98%
NOTES:

1.

Total number of women served (Column A) reflects 1989
figures. The balance of the Columns (C-G) reflect figures
from fiscal year 1990.

Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal
poverty guidelines.

The total of Columns C-F reflects funds that are subject
to Title X regulations.

Vermont agency statistics do not contain a breakdown
of patients at or below 150% of poverty by gender. Since
98% of all Title X patients were women, we assume that
98% of those in poverty were women. See Column B.

Planned Parenthood of Northern New England receives
the funds in Column C for services provided under
contracts with the Vermont Department of Health.

A-1 4
(D) (E) (F) (G)
Total
Non- State MCH Columns
Title X Funds Block (C) - (F)
$1,040,940 $257,076 $-0- $1,723,978
$-0- 6,358
$1,040,940 $257,076 _ $-0- $1,730,336
60.16% 14.86% 100%

6. Column Dis the sum of patient fees: $923,044; Medicaid:

$77, 109; tuition /fees: $18,475; and miscellaneous agency
funds: $22,312.

A-15

VIRGINIA
(A) (B) (C)
Women
at or
below
Total 150% of Title X
Women poverty Award
Department
of Health 82,704 68,644 $2,590,818
Y 18.93%
NOTES:

1.

Total number of women served (Column A) reflects 1989
figures. The balance of the Columns (C-G) reflect figures
from fiscal year 1991.

Column B reflects the number of women in Column A
whose incomes are at or below 150% of the federal
poverty guidelines.

The total of Columns C-F reflects funds that are subject
to Title X regulations.

Column E includes local department of health funds
because under Virginia Code Ann. §32.1-31 (1950) as
amended, the local departments of health are state
agencies.

A-16
(D) (E)
Non- State
Title X Funds
$556,160 $8,791,995
4.06% 64.23%

(F) (G)
Total
MCH Columns
Block (C) - (F)
$1,749,907 $13,688,880
12.78% 100%

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0727%3A21. Public record. Not legal advice.