Appendix — New York v. Sullivan (Nos. 89-1392, 89-1391)

Nos. 89-1391 and 89-1392, Ju. ei

——ESEeEeeE=EsS=EEEE———

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1990

Dr. IRVING Rust, et ai.,

. Petitioners,

Louis W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent,

THE STATE OF NEW York, et ai.,

. Petitioners,

Louis W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF WOMEN

LAWYERS AND THE NATIONAL CONFERENCE

OF WOMEN’S BAR ASSOCIATIONS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JAMES F. FITZPATRICK

Counsel of Record

L. HOPE O’KEEFFE

LAURENCE J. FREEDMAN

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

WALTER DELLINGER

DUKE LAW SCHOOL

Attorneys for Amici Curiae

A Se SS

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

hoe he Pee wen es

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INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

TABLE OF CONTENTS

i eee eee eee ee ee ee ee

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SE EEE EEE EEE EERE EERE ER ERE RRR RRR Ree eee

I. THE TITLE X REGULATIONS VIOLATE

FIRST AMENDMENT FREEDOM OF

SPEECH RIGHTS BY REGULATING

SPEECH ON THE BASIS OF VIEWPOINT,

PROHIBITING SPEECH BASED ON ITS

SUBJECT MATTER, AND INTERFERING

WITH

TD iecnincininiseniibiciilaindarniiitabtiielddiasiabendiiiit

DOCTOR-PATIENT COMMUNICA-

A. The Title X Regulations Impose Viewpoint-

Based Restrictions on Protected Speech in

Violation of the First Amendment.................

1.

The Title X Regulations Discriminate

Based on Viewpoint by Requiring Title X

Doctors and Counselors To Communicate

to Their Patients Prescribed Viewpoint-

Specific Information and Prohibiting

Them from Discussing Any Contrary

, ER EEA ROE REO SIC

is GOI TI ceases bic snnnes--s

D. PPGMEREROE TOOER .........--ccccccccecccececssiass

The Title X Regulations Prohibit Title

X Grantees from Communicating a Par-

ticular Viewpoint Through Public Infor-

mation, Political Expression, and Legal

atin dctheiclscerimeiseedintiecnlsaldiatiniisinisinininanen

B. The Title X Regulations Violate the First

Amendment by Prohibiting Speech Based on

TE I <csccitniinnctpesnseiniaennciuabinbartinaniaitinesns

C. The Title X Regulations Violate the First

Amendment by Interfering with Doctor-

Patient Communications ................................-.

11

ii

TABLE OF CONTENTS—Continued

1. The Regulations Violate the Physician’s

Right and Duty To Convey Information..

2. The Regulations Violate the Patient’s

Right To Receive Medical Information....

Il. THE TITLE X REGULATIONS IMPOSE UN-

CONSTITUTIONAL CONDITIONS ON THE

AVAILABILITY OF A GOVERNMENT SUB-

A. The Conditions Placed on the Title X Sub-

sidy Invidiously Discriminate in a Manner

Designed To Suppress Dangerous Ideas __....

B. The Title X Regulations Impermissibly Re

strict and Penalize Independently Funded

Speech

1. The Regulations’ Imposition of Content

Restrictions on Non-Federal Funds Un-

constitutionally Restricts Independent

Spending

2. The Requirement of Artificially Strict

Separation Between Title X Projects and

Other Activities Discourages Protected

Speech ..... ‘ hdiliniliniaiadani

CONCLUSION

16

18

20

21

re)

iii

TABLE OF AUTHORITIES

Cases: Page

Abood v. Detroit Bd. of Educ., 481 U.S. 209

ESE EE ES a 7

Arkansas Writers’ Project v. Ragland, 481 U.S.

ES a 12, 18, 19

Austin Vv. Michigan Chamber of Commerce, 110

Ee 16

Bigelow V. Virginia, 421 U.S. 809 (1975) ........... 11, 13, 14

Boos v. Barry, 485 U.S. 312 (1988) 4

Brotherhood of R.R. Trainmen v. Virginia State

I i ceenenttnenemnenanne 10

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) -..................... 14

Carey V. Brown, 447 U.S. 455 (1980) ..........-...... 12

Carey V. Population Services Internat’l, 431 U.S.

Ee 7

City Council v. Taxpayers for Vincent, 466 U.S.

ESE TE 5

Consolidated Edison Co. v. Public Serv. Comm’n,

TTT AT ASANTE = re 5, 12

FCC vy. League of Women Voters, 468 U.S. 364

SB shinotiasadhaineniadl 19, 21, 23, 24, 26

FEC v. Massachusetts Citizens for Life, 479 U.S.

A eT 21, 23, 24, 25, 26

Griswold v. Connecticut, 381 U.S. 479 (1965) -....... 12,14

Harris v. McRae, 448 U.S. 297 (1980) -................... 13, 17

Kleindienst v. Mandel, 408 U.S. 758 (1972) _........ 14

Lyng V. United Automobile Workers, 485 U.S. 360

EES EES Se 19, 20

Maher Vv. Roe, 432 U.S. 464 (1977) ate 13, 17

Martin v. Struthers, 319 U.S. 141 (1943) -............ 10

Massachusetts v. Secretary of HHS, 899 F.2d 53

(1st Cir. 1990) (en bane) .................. 5, 12, 18, 20, 22, 25

Metromedia, Inc. v. San Diego, 453 U.S. 490

(1981) 10, 12

NAACP v. Button, 371 U.S. 415 (1963) —............. 11

New York v. Sullivan, 889 F.2d 401 (2d Cir. 1989) .. 6, 8, 9,

15, 23

Perry v. Sindermann, 408 U.S. 593 (1972) ............. 16,17

iv

TABLE OF AUTHORITIES—Continued

Page

Planned Parenthood vy. Arizona, 718 F.2d 938 (9th

Cir. 1983), 789 F.2d 1348 (9th Cir.) (affirming

remand), aff'd mem., 479 U.S. 925 (1986) _........ 13, 21

Planned Parenthood Fed’n v. Bowen, 680 F. Supp.

og Pe 6, 13, 15, 17, 23

Planned Parenthood Ass’n V. Fitzpatrick, 401

F. Supp. 554 (E.D. Pa. 1975), aff’d mem. sub

nom. Franklin v. Fitzpatrick, 428 U.S. 901

i ERNE ENE UL ae LES aa OS Cee 15

Poe v. Ullman, 867 U.S. 497 (1961)... 12

Police Dep’t Vv. Mosley, 408 U.S. 92 Ce 4,11

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

Cee Ge wiitshitiedine ee 4, 18, 19, 23, 24, 25, 26

Regan Vv. Time, Inc., 468 U.S. 641 I ie is 11

Reproductive Health Servs. v. Webster, 851 F.2d

1071 (8th Cir. 1988), rev’d, 109 S. Ct. 3040

RN Mone ae ame VT EY 12

Riley v. National Fed’n of Blind, 487 U.S. 781

GIO sconthtasccns\-tsieuidiimnsiae dM Me 7,8

Sherbert v. Verner, 374 U.S. 398 SII“ Siecincicccenncnns 16,17

Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986) .. 14

Speiser v. Randall, 357 U.S. 518 ee 16, 17

Texas V. Johnson, 109 S. Ct. 2533 a 13

United States v. Eichman, 110 S. Ct. 2404 (1990)... 4

United States v. Robel, 389 U.S. 258 a 17

United Transp. Union v. Michigan Bar, 401 U.S.

ee ‘ ’ 10

Valley Family Planning v. North Dakota, 489 F.

Supp. 238 (D.N.D. 1980), aff'd, 661 F.2d 99

kL Ea Tr ene ee ee 21

Virginia Pharmacy Bd. vy. Virginia Citizens Con-

sumer Council, 425 U.S. 748 (1976) ....... 14, 15

Webster v. Reproductive Health Servs., 109 S. Ct.

eae A, EI, EIS PON 17

West Virginia Ass’n of Community Health Cen-

ters V. Sullivan, —— F. Supp. ——, 1990 West-

law 66552 (S.D. W. Va. March 1, 1990)... 5, 21, 22, 23

TABLE OF AUTHORITIES—Continued

Page

West Virginia State Bd. of Educ. v. Barnette, 319

i. A its 7,13

Wooley Vv. Maynard, 430 U.S. 705 (1977) ................ 7

Administrative and Executive Materials:

ey I .... sesenssitentesiioenintilanes 10

53 Fed. Reg. 2922-46 (1988)..........0..........e ee eeeceeeeeee 10, 15, 26

Fe a ee iihieiitintiteincasinintiininiesieitisanieiiibimptinains 22

ET mE EID 6, 8

RAR SER taper a eae 5 8

Ee a EAS FUE 7,14

. TR Se Seen Ne ee a 7,8

NE EET POPES A AED 7,9

EEE LR Okc ee ae eT eT 25

| eee Pa Re eA 25

i niin scene aaa 9

Ee a een me ae 9

I sc sinsinninin inattpsieetinnniiatiiaiiinatintiieise. 9

| rE See ca OO 10

BO ) eee 10

Periodicals:

Rosenthal, Conditional Spending and the Constitu-

tion, 39 Stan. L. Rev. 1103 (1987) ......000000.. 17

Sullivan, Un:onstitutional Conditions, 102 Harv.

I BE Sr NT ee 17

Miscellaneous:

U.S. Dep’t of Health and Human Services, Pro-

gram Guidelines for Project Grants for Family

Planning Services (1981) ...............2..cccccccceececceeee 7

Current Opinions of the Council on Ethical and

Judicial Affairs of the AMA § 8.07 (1986)........ 14

N.Y. Public Health Law § 2805-d(1) (McKinney

EY cahnchanines cecsnsidieieidsasndbilitaittidiedabaiadtagtameiniataladiininn 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1391

Dr. IRVING Rust, et al.,

- Petitioners,

Louts W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent,

No. 89-1392

THE STATE OF NEW YORK, et al.,

Petitioners,

V.

LouIs W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF WOMEN

LAWYERS AND THE NATIONAL CONFERENCE

OF WOMEN’S BAR ASSOCIATIONS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

With the consent of the parties, the National Associa-

tion of Women Lawyers and the National Conference of

Women’s Bar Associations respectfully submit this brief

as amici curiae in support of Petitioners.

INTEREST OF AMICI CURIAE

The National Association of Women Lawyers

(“NAWL”), founded in 1890, is a voluntary national

membership organization of the legal profession. Its

2

members include attorneys from every state and the Dis-

trict of Columbia, including prosecutors, public defend-

ers, private attorneys, trial and appellate judges from

the state and federal courts, legislators, law professors,

and law students. NAWL has official representation in

various national and international organizations and is

an affiliate of the American Bar Association. As an

organization made up primarily of women, NAWL has

and continues to be a supporter of women’s rights. As

an organization of attorneys, NAWL supports the integ-

rity of the justice system.

The National Conference of Women’s Bar Associations

(“NCWBA”) ‘s a nonprofit professional organization—of

State, regional, and local women’s bar associations and

includes associations in 37 states and the District of

Columbia. The NCWBA was formed in 1981 to promote

the highest standards of the legal profession, to advance

justice, to promote and protect the interests of women,

and to pursue these goals through appropriate legal,

social, and political action.

The interest of the NAWL and the NCWBA in filing

this brief as amici curiae is, above all, the preservation of

First Amendment speech rights. By manipulating speech

of Title X organizations to dictate what the government

declares shall be orthodox, the regulations at issue in this

case flagrantly contravene the spirit and letter of the

First Amendment. As members of the legal profession,

we have a special interest in protecting individual rights

and liberties guaranteed by the First Amendment from

the shifting tides of the political process,

The Title X restrictions upon free speech occur in a

context that heightens the NAWL’s and NCWBA’s con-

cerns. We are committed to protecting zealously the rela-

tionship of trust, consistent with professional obligations,

between the learned professional and the client, who relies

upon the professional’s knowledge, expertise, and candor;

these regulations threaten the integrity of this profes-

sional-client relationship. These concerns are amplified

3

by the disproportionate harm that the speech restrictions

would cause to those persons who lack the funds to pay

for private care; it is imperative that professionals pro-

viding direct proféSsional services to indigent clients

maintain their independence from political intervention.

SUMMARY OF ARGUMENT

The argument of amici supports the decision of the

First Circuit sitting en banc in Massachusetts v. Secre-

tary of HHS that the Title X regulations violate peti-

tioners’ First Amendment free speech rights. Amici ar-

gue that the Second Circuit concluded erroneously that

these regulations are constitutionally sound.

Part I demonstrates that the Title X regulations chal-

lenged here are premised upon viewpoint and subject-

matter discrimination in violation of the First Amend-

ment. The regulations designedly distort physician-

patient communications by dictating what must be said

and what may not be said to a pregnant woman who turns

to a partially Title X-funded facility for medical advice,

regardless of her needs or interests and regardless of the

physician’s professiona! obligations. Moreover, they stifle

the voice of one side of vital public debate on the abor-

tion issue, directly gagging public svpport of access to

abortion while leaving contrary, anti-abortion speech un-

fettered.

Part II refutes any contention that the regulations are

a mere refusal to subsidize constitutionally protected

speech rather than an unconstitutional condition. Part

IIA shows that the regulations condition the right to re

ceive Title X funds on an invidiously discriminatory,

viewpoint-based requirement that every organization ac-

cepting such funds relinquish its right to core protected

expression. Under controlling law, such a discriminatory

condition could not stand even if it affected only federally

funded activities.

Part IIB demonstrates that this unconstitutional con-

dition extends far Leyond the imposition of government-

4

endorsed medical doctrines on federally financed activi-

ties. The entire Title X project is required to adhere to

the state-dictated position, no matter how small a pro-

portion of the facility’s funding derives from the govern-

ment. Further, onerous requirements of separation be-

tween the Title X facility and any entity expressing the

disfavored viewpoint deliberately block the participating

organization’s ability to use private channels to express

its views. Such impositions upon independently funded

protected speech are blatantly unconstitutional, and thus

must be struck down.

ARGUMENT

I. THE TITLE X REGULATIONS VIOLATE FIRST

AMENDMENT FREEDOM OF SPEECH RIGHTS

BY REGULATING SPEECH ON THE BASIS OF

VIEWPOINT, PROHIBITING SPEECH BASED ON

ITS SUBJECT MATTER, AND INTERFERING

WITH DOCTOR-PATIENT COMMUNICATIONS

A. The Title X Regulations Impose Viewpoint-Based

Restrictions on Protected Speech in Violation of

the First Amendment

“If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit

the expression of an idea simply because society finds the

idea itself offensive or disagreeable.” United States v.

Eichman, 110 S. Ct. 2404, 2410 (1990) (quoting Texas

v. Johnson, 109 S. Ct. 2538, 2544 (1989)). As the Su-

preme Court has repeatedly emphasized, the First Amend-

ment forbids governmental efforts to suppress “dangerous

ideas” by imposing viewpoint-specific speech restric-

tions.’ See Regan v. Taxation With Representation, 461

1 For exampie, this Court invalidated a statute prohibiting cer-

tain protests near embassies because the restriction “depends en-

tirely upon whether their picket signs are critical of the foreign

government or not.” Boos v. Barry, 485 U.S. 312, 318-19 (1988 )

(O’Connor, J., joined by Stevens, J., and Scalia, J.); see Police

Dep't v. Mosley, 408 U.S. 92, 95 (1972) (“[A]bove all else the

5

U.S. 540, 548 (1983) (citing Cammarano v. United

States, 358 U.S. 498, 513 (1959)). As Justice Stevens

stated, “a regulation of speech that is motivated by noth-

ing more than a desire to curtail expression of a particu-

lar point of view on controversial issues .. . is the purest

example of a ‘law ... abridging the freedom of speech.’ ”

Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S.

580, 546 (1980) (Stevens, J., concurring). Accord City

Council v. Taxpayers for Vincent, 466 U.S. 789, 804

(1984).

The regulations impose glaring and unconstitutional

viewpoint restrictions that control not only the communi-

cation between health care professionals and their clients

in programs partially funded by Title X,* but also speech

between organizations partially funded by Title X and

the public.

1. The Title X Regulations Discriminate Based on

Viewpoint by Requiring Title X Doctors and

Counselors To Communicate to Their Patients

Prescribed Viewpoint-Specific Information and

Prohibiting Them from Discussing Any Contrary

Viewpoint

A review of the Title X regulations at issue here con-

firms the First Circuit’s determination that the regula-

tions constitute a pure example of speech regulation that

is “both viewpoint and content-based in violation of the

first amendment.” Massachusetts v. Secretary of HHS,

899 F.2d 53, 75 (1st Cir. 1990) (en banc).® No fair

First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or

its content.’’).

2 Throughout the brief, employees in family planning Programs

that receive any Title X funds are referred to as “participating”

health care professionals.

3 In addition to the First Circuit, every other federal court that

has reviewed these regulations, except the courts below, has deter-

mined that the Title X regulations are viewpoint-discriminatory.

West Virginia Ass’n of Community Health Centers v. Sullivan,

6

reading could construe these regulations as viewpoint

neutral.‘ It is simply impossible to conclude that “the

regulations in question do not facially discriminate on

the basis of the viewpoint of the speech involved.” New

York v. Sullivan, 889 F.2d 401, 414 (2d Cir. 1989). The

critical fact is that the Second Circuit majority, over a

sharp dissent, found it necessary to mischaracterize the

regulations in order to sustain them. The Title X regu-

lations restrict speech not only by compelling participat-

ing health care professionals to communicate one view-

point, but also by prohibiting them from communicating

to their clients information that expresses the other view-

point.

a. Compelled Speech

The Title X regulations command and instruct par-

ticipating health care professionals to inform and refer

pregnant clients in the following manner.

First, participating health care professionals are in-

structed to inform a pregnant client—irrespective of her

medical condition, the circumstances of her pregnancy, or

her request for information—that abortion is not an “ap-

propriate” response to her medical condition. Indeed,

these professionals are instructed to state “that the proj-

—— F. Supp. , 1990 Westlaw 66552 (S.D.W. Va. March 1,

1990); Planned Parenthood Fed’n v. Bowen, 680 F. Supp. 1465,

1475 (D. Colo. 1988).

| 4 Contrary to the Respundent’s position, this is not a situation in

which the government has decided simply to fund only preventive

family planning services and to avoid any involvement with pa-

tients who seek assistance with a pregnancy. Respondent’s Brief

on Petition for Writ of Certiorari at 5, New York v. Sullivan,

(Nos. 89-1391, 89-1392) (filed May 1990). Title X grantees are

not instructed simply to inform pregnant clients that the program

does not provide information or referrals for pregnant patients, as

Respondent suggests. Rather, the regulations specifically direct

Title X grantees to undertake to provide counseling and informa-

tion to women who are pregnant, but to do so in a manner that

restricts and distorts the information conveyed to those patients.

See 42 C.F.R. § 59.8 (1988).

7

ect can help her to obtain prenatal care” and will provide

her with a list of prenatal care providers. 42 C.F.R.

§ 59.8(b) (5) (1988) (example of acceptable response to

inquiry regarding abortion information).

Second, participating doctors and counselors must pro-

vide their pregnant clients with “information necessary

to protect the health of mother and unborn child,” id.

§ 59.8(a) (2) (1988) (emphasis added), even if a client

has indicated unequivocally her intent to terminate her

pregnancy.

Third, participating professionals must give every

pregnant client of their facility “a list of available pro-

viders that promote the welfare of mother and unborn

child.” Jd. These professionals cannot exclude from this

list any health care providers that “do not provide abor-

tions.” * Id. § 59.8(a) (3).

Compelled speech, such as these regulations command,

plainly violates the First Amendment. “If there is any

fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be ortho-

dox in... matters of opinion or force citizens to confess

by word or act their faith therein.” West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). See

Riley v. National Fed’n of Blind, 487 U.S. 781, 795

(1988); Abood v. Detroit Bd. of Educ., 481 U.S. 209,

234-35 (1977); Wooley v. Maynard, 430 U.S. 705, 714

(1977).

b. Prohibited Speech

The regulations compound the constitutional infirmity

triggered by the forced speech by expressly prohibiting

5 The participating program must include on the referral list

every prenatal health care provider that does not principally pro-

vide abortions. Compare U.S. Dep’t of Health and Human Services,

Program Guidelines for Project Grants for Family Planning Serv-

ices $7.4 (1981) (granting programs discretion to select referral

providers).

8

health professionals from communicating any information

that expresses the contrary viewpoint. “[T]he First

Amendment guarantees ‘freedom of speech,’ a term neces-

sarily comprising the decision of both what to say and

what not to say.” Riley, 487 U.S. at 797 (emphasis in

original).

First, a participating professional cannot refer a client

who seeks to terminate a pregnancy, irrespective of her

medical circumstances, to any other health care pro-

vider “whose principal business is the provision of abor-

tions.” 42 C.F.R. § 59.8(a) (3). Indeed, a particinating

organization may not even supply pregnant clients with

a copy of the Yellow Pages. See New York v. Sullivan,

889 F.2d at 415 (Cardamone, J., concurring).

Second, participating professionals “may not provide

counseling” concerning abortion to any pregnant client.

42 C.F.R. § 59.8(a) (1).

Third, the regulations prohibit participating profes-

sionals from “encouraging or promoting abortion,” even

with respect to pregnancy posing severe medical risks to

the patient. 42 C.F.R. § 59.8(a) (3).

These blatantly viewpoint-specific prohibitions flatly

contravene this Court’s instruction in Carey v. Population

Services Internat’l, 431 U.S. 678, 700 (1977), that the

government “may not ‘completely suppress the dissemina-

tion of concededly truthful information about entirely

lawful activity’” (quoting Virginia Pharmacy Bd. v.

Virginia Citizens Consumer Council, 425 U.S. 748, 778

(1976) ).

Thus, a straightforward review of the regulations

themselves compels the conclusion that, contrary to the

premise of the appellate court, the Title X regulations

are undeniably viewpoint-restrictive. The majority’s

statement that “[a]rgumentation pro or con as to the

advisability of an abortion for a particular woman is

*The regulations except a medical “emergency.” 42 C.F.R.

§ 59.8.

9

neither required nor authorized,” New York v. Sullivan,

889 F.2d at 414, simply cannot be squared with the regu-

lations as a whole, nor with the regulations’ explicit

instruction that doctors inform a pregnant woman that

“the project does not consider abortion an appropriate

method of family planning.” 42 C.F.R. § 59.8(b) (5).

2. The Title X Regulations Prohibit Title X Grant-

ees from Communicating a Particular Viewpoint

Through Public Information, Political Expres-

sion, and Legal Advocacy

The constitutional harm of outright censorship of

doctor-patient communications is aggravated by the un-

constitutional restraints imposed on participating family

planning programs. The Title X regulations forbid

grantees from expressing a particular viewpoint in the

arenas of public information, political expression, and

legal advocacy, types of speech that merit stringent First

Amendment protection, while leaving expression of oppos-

ing viewpoints unrestricted.

First, the regulations prohibit participating organiza-

tions from “lobbying for the passage of legislation to in-

crease in any way the availability of abortion.” 42

C.F.R. § 59.10(a) (1). Yet, nothing in these regulations

forbids Title X grantees from lobbying to decrease the

availability of abortion.

Second, the regulations prohibit participating organi-

zations from “|p]roviding speakers to promote the use

of abortion.” 42 C.F.R. § 59.10(a) (2). The regulations

do not, however, prohibit Title X grantees from provid-

ing speakers who aim to dissuade pregnant clients from

seeking an abortion.

Third, the regulations prohibit participating organiza-

tions from “[p]Jaying dues to any group that as a

significant part of its activities advocates abortion.” 42

C.F.R. § 59.10(a)(3). Title X grantees can, however,

support groups that oppose abortion.

10

Fourth, the regulations prohibit participating organi-

zations from “disseminating . . . materials . . . advoca-

ting abortion.” 42 C.F.R. § 59.10(a)(5). Here again,

however, Title X grantees can disseminate informational

materials aimed at promoting childbirth.’

Finally, the regulations prohibit participating organi-

zations from “{uJjsing legal action to make abortion

available in any way.” 42 C.F.R. § 59.10(a)(4). Yet,

Title X grantees are allowed to participate in legal ac-

tivities the aim of which is to minimize the availability

of abortion.

Subpart 59.10 is a blatant attempt to shrink the speech

rights of partially Title X-funded organizations. Each

of these naked viewpoint restrictions clearly violates the

First Amendment prohibition on viewpoint restrictions

upon speech. See Metromedia, Inc. v. San Diego, 453

U.S. 490, 505 (1981) (The First Amendment prohibits

the suppression of “the dissemination of truthful infor-

mation about an entirely lawful activity merely because

[the government] is fearful of that information’s effect

upon its disseminators and its recipients.”); see also

Martin v. Struthers, 319 U.S. 141, 146-47 (1943). Their

combined effect is to gag Title X grantees who wish to

express supposedly “dangerous ideas.”

Amici are particularly alarmed by the viewpoint-

based restriction on partially Title X-funded organiza-

tions’ right to take legal action. “The right to petition

the courts cannot be so handicapped.” Brotherhood of

R.R. Trainmen v. Virginia State Bar, 377 U.S. 1, 7

(1964). See United Transp. Union v. Michigan Bar,

* These prohibitions, as interpreted by HHS, would force health

care providers with Title X funds from maintaining libraries and

written materials with indisputably neutral and accurate informa-

tion regarding abortion, based on the government view that any

information about abortion encourages it. See 53 Fed. Reg. 2922,

2923, 2933, 2943 (1988) (final regulations); 52 Fed. Reg. 33,211

(1987) (proposed regulations).

11

401 U.S. 576, 580-81 (1971); NAACP v. Button, 371

U.S. 415, 429 (1963). This restriction impedes access

to the courts and effective advocacy within the judicial

system. Indeed, if the regulations were in effect at this

moment, no health care provider receiving any Title X

funds would be able to participate in this judicial pro-

ceeding.

B. The Title X Regulations Violate the First Amend-

ment by Prohibiting Speech Based on Subject

Matter

The Title X regulations are blatant viewpoint-specific

restrictions, contrary to the cursory—and erroneous—

Second Circuit statements suggesting otherwise. But be-

yond that, the Title X regulations violate the First

Amendment by singling out and proscribing speech on

the highly controversial and politicized subject of abor-

tion.

There is no question that prohibitions of speech based

on subject matter, like restrictions based on viewpoint,

violate the First Amendment guaranty of freedom of

speech.* For example, in Regan v. Time, Inc., 468 US.

641, 648-49 (1984), this Court admonished that “[r]egu-

lations which permit the government to discriminate on

the basis of the content of the message cannot be toler-

ated under the First Amendment.” See also Police Dep't

8 Suppression of speech regarding a particular subject will in

some instances constitute viewpoint discrimination. In this case, a

Title X patient who learns she is pregnant must choose between

one of two inevitable alternatives—continued pregnancy and abor-

tion. In this context, a subject-matter restriction (foreclosure of

all abortion-related speech) is equivalent to a viewpoint-based re-

striction. However labeled, the regulations violate the First

Amendment because they silence all speech that expresses the view

that abortion is an option—and perhaps a medically advisable

option—for a Title X patient. See Bigelow V. Virginia, 421 U.S.

809, 826 (1975) (citing NAACP v. Button, 371 U.S. at 429 (re-

strictions on speech are strictly scrutinized regardless of their

“particular label’) ).

12

v. Mosley, 408 U.S. at 95. As the First Circuit stated,

“li]t is by now black letter law that [a subject-matter]

restriction is a violation of the first amendment.” Massa-

chusetts Vv. Secretary of HHS, 899 F.2d at 75.

This Court reiterated its intolerance for subject-

matter prohibitions on speech in Arkansas Writers’

Project Vv. Ragland, 481 U.S. 221, 230 (1987). In that

case, the Court struck down a tax scheme based on

magazines’ subject matter, emphasizing that “the basis

on which Arkansas differentiates between magazines is

particularly repugnant to First Amendment principles:

a magazine’s tax status depends entirely on its content.”

Id, at 229 (emphasis in original). See also Consolidated

Edison Co. v. Public Service Comm’n, 447 U.S. 530, 537

(1980) (“The First Amendment’s hostility to [restric-

tions on speech] extends not only to restrictions on cer-

tain viewpoints, but also to prohibition of . . . discussion

of an entire topic.) ; accord Metromedia, Inc. v. San

Diego, 453 U.S. at 515; Carey v. Brown, 447 U.S. 455,

460-61 (1980).

Thus, even if the Second Circuit were correct in its

assertion that the Title X regulations prohibit discus-

sions between participating professionals and patients

about the entire topic of abortion, that is a subject-

matter speech restriction in violation of the First

Amendment.

C. The Title X Regulations Violate the First Amend-

ment by Interfering with Doctor-Patient Communi-

cations

The federal courts have consistently reaffirmed that

the “right of the doctor to advise his patients according

to his best lights seems so obviously within First Amend-

ment rights as to need no extended discussion.” Poe v.

Ullman, 367 U.S. 497, 513 (1961) (Douglas, J.) (dis-

senting from dismissal). See Griswold v. Connecticut,

381 U.S. 479, 482 (1965); Massachusetts v. Secretary

of HHS, 899 F.2d at 73; Reproductive Health Servs. v.

—

13

Webster, 851 F.2d 1071, 1078 (8th Cir. 1988), issue

declared moot on appeal, 109 S. Ct. 3040 (1989) ; Planned

Parenthood v. Arizona, 718 F.2d 938, 944 (9th Cir.

1983), 789 F.2d 1348 (9th Cir.) (affirming remand),

aff'd mem., 479 U.S. 925 (1986); see also Bigelow V.

Virginia, 421 U.S. at 822 (recognizing First Amendment

right to communicate information regarding medical serv-

ices). This is especially true where, as here, the speech

is necessary to effectuate the constitutional right to pri-

vacy.” Massachusetts v. Secretary of HHS, 899 F.2d at

73; see Bigelow V. Virginia, 421 U.S. at 822.

1. The Regulations Violate the Physician’s Right

and Duty To Convey Information

From a professional’s perspective, the basic vice of the

challenged regulations is that they obstruct a physician’s

First Amendment freedom, and professional responsibil-

ity, to convey essential medical information to a patient.

See Planned Parenthood Fed’n v. Bowen, 680 F. Supp. at

1477.

Participating doctors are strictly forbidden from

counseling patients about abortion, informing a preg-

nant woman about the availability of abortion, or even

telling her where she can receive full abortion-related

information. This prohibition applies irrespective of the

client’s medical condition (e.g., drug addiction, AIDS,

diabetes), the circumstances of pregnancy (¢.g., rape,

incest), or the patient’s direct requests for information.

® Although it has been held that the government has a legitimate

interest in favoring childbirth over abortion, and that this interest

is sufficient to sustain a decision not to provide governmental

funding for abortions, see Harris v. McRae, 448 U.S. 297 (1980) and

Maher v. Roe, 482 U.S. 464 (1977), this Court has never suggested

that the government’s interest would constitute a compelling inter-

est that would allow the direct abrogation of First Amendment

rights. To hold otherwise would be tantamount to declaring child-

birth an official state “orthodoxy,” which is strictly forbidden by

the Constitution. See Texas v. Johnson, 109 S. Ct. 2533 (1989) ;

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

14

This prohibition against discussing abortion is com-

pounded by 42 C.F.R. subpart 59.8(a) (2), which affirma-

tively compels a doctor to provide distorted information

designed to promote the welfare of “mother” and “unborn

child” even when the woman’s condition renders this

advice contrary to prevailing professional standards. This

directly contravenes basic tenets of professional medical

ethics and established medical care standards, which re-

quire physicians to disclose all medically reasonable

available options. See Current Opinions of the Council on

Ethical and Judicial Affairs of the American Medical

Association § 8.07 (1986); N.Y. Public Health Law

§ 2805-d(1) (McKinney 1985). In fact, a physician who

fails to inform a patient of all treatment options and

the associated risks may well be liable in tort for mal-

practice as a result. See Canterbury v. Spence, 464

F.2d 772, 781-83 (D.C. Cir.), cert. denied, 409 U.S.

1064 (1972); Smith v. Cote, 128 N.H. 231, 513 A.2d

341 (1986).

The coercive combination of prohibition and compul-

sion creates a dilemma for the doctor: the choice be-

tween adherence to the Title X requirements or to the

professional codes of ethics, and, correspondingly, be-

tween the risks of defunding, on one hand, or disci-

plinary action, potential tort liability, and, of course,

risks to the patient’s health or life, on the other.

2. The Regulations Violate the Patient’s Right To

Receive Medical Information

The challenged regulations also affect the patient’s

rights. This Court has long established that the right to

receive information is the essential reciprocal of the right

to convey information. Virginia Pharmacy Bd. v. Vir-

ginia Citizens Consumer Council, 425 U.S. 748, 756-57

(1976); Kleindienst v. Mandel, 408 U.S. 758, 762

(1972). This right specifically extends to information on

contraception and abortion. Bigelow v. Virginia, 421

U.S. at 821-22 (1975) ; Griswold v. Connecticut, 381 U.S.

15

at 482 (1965) ; see Planned Parenthood Fed’n v. Bowen,

680 F. Supp. at 1477; Planned Parenthood v. Fitzpatrick,

401 F. Supp. 554, 577-78 (E.D. Pa. 1975), aff'd mem.

sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976).

The right to receive information is especially critical

in the context of indigent medical care. See Virginia

Pharmacy Bd., 425 U.S. at 763 (suppression of prescrip-

tion drug price information hits the hardest on the poor,

the sick, and the aged). In the particular case of the

physician-patient relationship, incomplete and mislead-

ing information can be tantamount to fatal misinforma-

tion. When the patient is a poor woman, whose only

access to health care is a clinic that receives federal

funds, her dependence on the accuracy, reliability, and

completeness of the medical advice rendered there is

total.” By preventing full disclosure of crucial informa-

tion, these regulations thus endanger the health and lives

of those who need it most.

Similarly, a paying patient’s right to receive medical

information is threatened. Planned Parenthood Fed’n Vv.

Bowen, 680 F. Supp. at 1476; see 58 Fed. Reg. at 2931

(comments on final regulations) (“a significant percent-

age of the clients served by Title X projects are full-

pay”). Like indigent women, these patients may turn

for medical advice to a partially Title X-funded facility

without any knowledge that they will receive a govern-

mentally distorted flow of medical information.

In summary, these regulations directly intrude upon

doctor-patient communications for reasons unrelated to

—and indeed antithetical to—profesisonal standards and

a patient’s health interest. The First Amendment will

not tolerate such interference with constitutionally pro-

tected speech.

10 Many Title X-funded clinics provide a unique service for their

communities. See New York vy. Sullivan, 899 F.2d at 415 (Carda-

mone, J., concurring).

—

16

II. THE TITLE X REGULATIONS IMPOSE UNCON-

STITUTIONAL CONDITIONS ON THE AVAIL-

ABILITY OF A GOVERNMENT SUBSIDY

Although the government is under no constitutional

obligation to fund or subsidize family planning activities,

having done so, it cannot impose conditions that sup-

press or penalize constitutionally protected expression."

The Supreme Court has consistently rejected attempts

by the government to condition a subsidy or benefit on

the relinquishment by the recipient of a constitutional

right:

[E]ven though a person has no “right” to a valuable

governmental benefit and even though the govern-

ment may deny .. . 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 constitu-

tionally protected interests—especially, his interest

in freedom of speech. For if the government could

deny a benefit to a person because of his constitu-

tionally protected speech or associations, his exercise

of those freedoms would in effect be penalized and

inhibited. . . . Such interference with constitutional

rights is impermissible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (cita-

tions omitted). See Sherbert v. Verner, 374 U.S. at 404-

05; Speiser v. Randall, 357 U.S. 513 (1958).

As Justice Scalia has noted, “[i]t is rudimentary that

the State cannot exact as the price of [cash subsidies and

other] special advantages the forfeiture of First Amend-

ment rights.” Austin v. Michigan Chamber of Com-

merce, 110 S. Ct. 1391, 1408 (1990) (Scalia, J., dissent-

ing). “It is too late in the day to doubt that the lib-

11 This prohibition on conditionai funding applies whether or not

the restrictions are designed specifically to inhibit the exercise of

speech rights. Sherbert v. Verner, 374 U.S. 398, 405 (1963). In

this case, the effect of the regulations on speech is direct, explicit,

and intentional.

17

ert[y] of . . . expression may be infringed by the de-

nial of or placing of conditions upon a benefit or privi-

lege.” Sherbert v. Verner, 374 U.S. at 404.

Likewise, the government cannot punish an existing

recipient of funds for exercising the right to speech.

Perry v. Sindermann, 408 U.S. at 597. Otherwise, the

freedom of speech would “be penalized and inhibited.”

id., which would allow the government indirectly to

“produce a result which the State couid not command

directly.” Speiser v. Randall, 357 U.S. at 526. This

method of “interference with constitutional rights is im-

permissible.” Perry v. Sindermann, 408 U.S. at 597.

See United States v. Robel, 389 U.S. 258 (1967). See

generally Rosenthal, Conditional Spending and the Con-

stitution, 39 Stan. L. Rev. 1103 (1987); Sullivan, Un-

constitutional Conditions, 102 Harv. L. Rev. 1415 (1989).

The Title X regulations cross over the line between a

permissible refusal to subsidize constitutionally protected

activities and an unconstitutional condition on federal

subsidies for two distinct reasons.“ First, the regula-

12 Although there is no right to specific types of federally funded

health care services, see Harris v. McRae, 448 U.S. 297 (1980) and

Maher v. Roe, 432 U.S. 464 (1977), patients have a right to unim-

peded access to information from health care providers, even if

the medical facility is partially federally funded. See Webster v.

Reproductive Health Servs., 109 S. Ct. 3040, 3060 (1989) (O’Con-

nor, J., concurring) (leaving open for litigation the controversy

that would arise if public funds were used to “prohibit publicly

employed health professionals from giving specific medical advice

to pregnant women”); id. at 3053-54 (plurality opinion) ; see also

Planned Parenthood vy. Bowen, 680 F. Supp. at 1475.

Moreover, under Maher and McRae, the government may fund

childbirth provided it “places no governmezital obstacle” to the

patient’s choice, McRae, 448 U.S. at 315, and the policy leaves a

pregnant woman with the “same choices” as if the gover: ment did

not provide any medical services, Webster, 109 S. Ct. at 3052. See

McRae, 448 U.S. at 317. Even if they did not offend the First

Amendment, the Title X regulations would run afoul of both of

these prohibitions by mandating that doctors provide incomplete

18

tions invidiously discriminate to suppress dangerous

ideas. Second, the regulations directly penalize the par-

ticipating organizations for using independent funds to

exercise rights of free speech.

A. The Conditions Placed on the Title X Subsidy

Invidiously Discriminate in a Manner Designed To

Suppress Dangerous Ideas

The Supreme Court has consistently invalidated allo-

cation of governmental benefits based on the viewpoint

or subject matter of the recipient’s expression. Congress

may not “discriminate invidiously in its subsidies in such

a way as to ‘ai[m] at the suppression of dangerous

ideas.’” Regan v. Taxation With Representation, 461

U.S. 540, 548 (1983) (quoting Cammarano v. United

States, 358 U.S. 498, 513 (1959) ).*

Thus, in Arkansas Writers’ Project, general-interest

magazines were denied tax exemptions available to spe-

cialized publications. The Supreme Court found the pro-

vision unconstitutional, emphasizing that the “official

scrutiny of the content of publications” required by the

state was “entirely incompatible with the First Amend-

ment’s guarantee of freedom of the press.” Id. at 229,

230.

While rejecting a content-based rule, the dissent in

Arkansas Writers’ acknowledged that subsidy programs

and, in many cases, medically misleading information. Instead of

no information, or medical advice in her best interest, the pregnant

client of a Title X program is provided with the state view on

childbirth, under the guise of independent medical judgment.

13 In Taxation With Representation, the Court upheld a require-

ment that lobbying activities protected by the First Amendment be

separated from other activities as a condition of tax deductibility.

But the Court emphasized that the tax laws at issue did not dis-

criminate on the basis of content and had neither the intent nor

the effect of suppressing ideas. 461 U.S. at 548. The Court cau-

tioned that the outcome “would be different” if the subsidies were

discriminatory. /d.

19

can be “manipulated so as to” have a “significant coer-

cive effect” over speech. 481 U.S. at 237 (Scalia, J.,

dissenting). In those cases “the courts will be available

to provide relief.” Jd. The dissent suggested a “prophy-

lactic rule . . . when the subsidy pertains to the expres-

sion of a particular viewpoint on a matter of political

concern.” Jd. (emphasis added).

Similarly, in FCC v. League of Women Voters, 468

U.S. 364 (1984), the Court held that Congress could not

condition the receipt of grants for public broadcasting

with a ban on editorializing. The Court criticized the

ban as “defined solely on the basis of the content of the

suppressed speech” because “enforcement authorities must

necessarily examine the content of the message that is

conveyed.” Jd. at 383. Significantly, as here, the gov-

ernment sought to portray the regulation as a mere

refusal to subsidize constitutional activity under the

spending power, see id. at 399, but the Court rejected

that approach.

The Title X regulations present this Court with pre

cisely the invidious speech discrimination forewarned

in Regan v. Taxation With Representation and con-

demned by both the majority and the dissent in Arkansas

Writers’. Through their funding conditions, the regula-

tions prohibit core protected speech—counseling, referral,

pamphlets, lobbying, and legal action—on one side of a

controversial social, medical, personal, and political issue,

and require speech promoting the other viewpoint.

Likewise, the Title X regulations fail the test set

forth in a case upholding the government’s refusal to

extend food stamp benefits to striking workers. In Lyng

v. United Automobile Workers, 485 U.S. 360 (1988), the

Court upheld the statute at issue on the grounds that

it “requires no exaction from any individual; it does

not ‘coerce’ belief; and it does not require [strikers] to

. . . Support political views with which they disagree.”

485 U.S. at 369. Additionally, the statute in Lyng

20

fairly reflected the legitimate congressional policy of

“maintaining neutrality in private labor disputes.” /d.

at 373.

In contrast, by silencing doctors as to abortion coun-

seling and referral, prescribing the contents of a referral

list, prohibiting on a viewpoint-specific basis legal and

legislative advocacy, and instructing doctors to tell preg-

nant clients interested in abortion-related information

that abortion is not “appropriate,” the Title X regula-

tions, taken as a whole, operate to exact, coerce, and

impose state-sponsored political beliefs on Title X pro-

grams and their professional employees.

Also unlike Lyng, the Title X regulations do not reflect

a neutral policy toward the recipients of federal benefits.

In Lyng, striking workers would not lose existing bene-

fits, but simply would not receive additional benefits.

Here, Title X programs lose their Title X funds if they

exercise the prohibited speech activity.

Finally, again in contrast to Lyng, the Title X regula-

tions impact not only the rights of those receiving the

federal subsidy, but also the rights of those who rely on

the information. As noted above, many indigent clients

are completely dependent on Title X clinics for vital med-

ical knowledge, and will be unaware that the medical in-

formation they are receiving has been distorted by the

government. In addition, many private paying patients

will be unaware that the government has narrowed their

medical options, or even that their health care provider

receives some of its funds from the federal government.

B. The Title X Regulations Impermissibly Restrict

and Penalize Independently Funded Speech

Beyond the fact that viewpoint-based conditions on

Title X subsidies are unconstitutional, the regulations

violate the First Amendment on separate grounds because

they restrict protected speech funded by independent

sources. Massachusetts v. Secretary of HHS, 899 F.2d

21

at 73-74. As the First Circuit observed, the “Second

Circuit . . . ignored the fact that private money (‘match-

ing funds’) is tied up and held hostage to the same re-

strictions as Title X funds because of the new definition

of the ‘Title X program’ in the regulations.” Jd. at 71.

The government may not use the promise of government

funding as a means of, in effect, dictating how the private

funds gathered by an organization will be used for pro-

tected speech. FCC v. League of Women Voters, 468 U.S.

364, 399-401 (1984); see FEC v. Massachusetts Citizens

for Life, 479 U.S. 238, 255 (1986).

Prior decisions in the medical context have consistently

applied this principle to strike down laws conditioning

government subsidies on termination of privately funded

speech activities. Planned Parenthood vy. Arizona, 789

F.2d 1348; West Virginia Ass’n of Community Health

Centers v. Sullivan, F. Supp. ——, 1990 Westlaw

66552, at 20 (S.D.W. Va. March 1, 1990) ; Valley Family

Planning v. North Dakota, 489 F. Supp. 238, 242 (D.N.D.

1980), affd, 661 F.2d 99 (8th Cir. 1981).

The Title X regulations directly violate this principle.

First, the regulations require that the organization de-

vote privately raised funds to Title X projects and sub-

ject those private funds to the regulations. This guar-

tees that private funds will be burdened by these regula-:

tions. Second, the onerous requirements of separation

between a Title X project and an organization’s non-

funded activities discourage protected speech and uncon-

stitutionally limit private expenditures.

1. The Regulations’ Imposition of Content Restric-

tions on Non-Federal Funds Unconstitutionally

Restricts Independent Spending

The unconstitutional impact of government regulations

on private speech is described in FCC v. League of

Women Voters. There, the Court emphasized that condi-

tioning public broadcasting grants on a ban on editorial-

22

izing was invalid in part because it prevented local sta-

tions from underwriting editorializing with non-federal

funds, so that ‘“‘a noncommercial educational station that

receives only 1% of its overall income from [federal]

grants is barred absolutely from all editorializing .. .

and, more importantly, it is barred from using even

wholly private funds to finance its editorial activity.”

468 U.S. at 400.

That these regulations govern use of private funds is

incontrovertible. By definition, the regulations cover all

activities of a Title X program regardless of the source

of funds: “Title X project funds include all funds allo

cated to the Title X program, including but not limited

to grant funds, grant-related income or matching funds.”

42 C.F.R. § 59.2 (emphasis added).

Two types of private funds are necessarily implicated

by this definitional scheme. First, every Title X program

includes at least 10% of its budget from matching funds

obtained from independent sources. Massachusetts V.

Secretary of HHS, 899 F.2d at 73 n.11. In practice, the

independent funds account for between 10 and 91 percent

of Title X program funding, with an average of 50%.

Id. Thus, it follows that, as the First Circuit found,

“the regulations directly restrict the use of a significant

amount of private money (the 10% or more that the pri-

vate organizations spend within the Title X program).”

Id. at 74. See also West Virginia Ass’n, 1990 Westlaw

66552, at 19-21 (rejecting view that the Title X regula-

tions restrict only the use of public funds). This First

Cireuit conclusion is unchallengeable; the Title X pro-

gram definition demands the inclusion of independent

funds.

Second, the regulations affect the organizations’ use of

privately generated funds from patient fees.'* Notably,

4 The regulations define “grani-related income,” which includes

patient fees, as included in the definition of Title X funds subject

to the regulations. 42 C.F.R. § 59.2.

23

the court below indicated that it was unclear on the

record whether participating organizations provide care

for private paying patients. New York v. Sullivan, 889

F.2d at 413-14. However, indisputably, private patients

are clients of programs that use Title X funds, as HHS

concedes and as two district courts have confirmed. 53

Fed. Reg. at 2931; see Planned Parenthood Fed’n v.

Bowen, 680 F. Supp. at 1476; West Virginia Ass’n, 1990

Westlaw 66552, at 18.

Because of this inclusion of private matching funds

and payments from private patients in their coverage, the

regulations are invalid as unconsitutional conditions

placed on the use of private funds by Title X fund re

cipients.

2. The Requirement of Artifically Strict Separa-

tion Between Title X Projects and Other Activi-

ties Discourages Protected Speech

Even if the Title X regulations did not mandate the

use of independent funds, the regulations would still be

unconstitutional due to the burden imposed on the use of

private funds by the strict requirements of physical and

administrative separation between Title X projects and

the participating organizations’ independent activities. A

series of recent cases outlines the parameters under

which the government may attach non-viewpoint-related

conditions to government benefits where the conditions

have the practical effect of “discourag[ing] protected

speech.” FEC v. Massachusetts Citizens for Life, 479

U.S. at 255; FCC v. League of Women Voters, 468 U.S.

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

at 545. These cases examine the conditions on the

subsidized activities in the light of the organizations’

alternative means of exercising the same free speech

rights through an affiliate or subsidiary. If “the avenue

[that the statute or regulation] leaves open is more bur-

densome than the one it forecloses,” the restriction is un-

constitutional. Massachusetts Citizens for Life, 479 U.S.

at 255.

24

For example, in Taxation With Representation, this

Court addressed a regulation that it determined did not

discourage protected speech. There, it upheld an IRS re-

quirement that lobbying by tax-exempt organizations

must be conducted by a separate “lobbying affiliate.” 461

U.S. at 544-45 n.6. Crucial to this holding was the

finding that “(t]he IRS apparently requires only that the

two groups [the non-profit and its lobbying affiliate] be

separately incorporated and keep records adequate to

show that tax-deductible contributions are not used to

pay for lobbying.” 461 U.S. at 544 n.6. Critically, the

tax-exempt organization did not claim that this “dual

structure” created any discouragement of speech or

burden on speech. /d.

In contrast, in FCC v. League of Women Voters, the

Court struck down a federal ban on editorializing by non-

commercial educational television stations, in part be-

cause the ban penalized private, protected speech activity:

the stations could not easily segregate speech-related ac-

tivities by their source of funding. 468 U.S. at 399-401.

Applying the Taxation With Representation framework,

the Court reasoned that if Congress were to allow non-

commercial educational stations to establish “ ‘affiliate’

organizations which could then use the station’s facilities

to editorialize with nonfederal funds,” then the First

Amendment infirmities might be cured. Jd. at 400 (em-

phasis added). But absent any such alternative, the re-

striction on the organization’s free speech rights was

unconstitutional.

Finally, in Massachusetts Citizens for Life, this Court

invalidated provisions of federal election law requiring

corporations to segregate funds used “in connection with”

federal elections.’® 479 U.S. at 241. The election law

mandated changes in accounting and organizational

15 The law did not apply to unincorporated associations. Thus,

the benefits of incorporation were conditioned on the election law

requirements.

25

structure, and imposed other minimal administrative

costs. The Court found that the requirement that such

activities be segregated in a separate organization un-

constitutionally burdened the organization’s First Amend-

ment rights.’ 478 U.S. at 263.

The Title X regulations far exceed the parameters set

by this Court in these cases. They require an independ-

ently funded activity to be “physically and financially

separate” from any of the defined “prohibited activities”

and stress that “[m]ere bookkeeping separation of Title

X funds from other monies is not sufficient.” 42 C.F.R.

§ 59.9. To be sufficiently physically separate, the Title X

facility must, to the government’s satisfaction, have sepa-

rate staff and separate treatment, consultation, examina-

tion, and waiting rooms. 42 C.F.R. § 59.10.

The First Circuit found that the separation require-

ments of the Title X regulations burdened First Amend-

ment speech: “The practical effect of the regulations is to

restrict significantly the ability of the recipient organiza-

tion to engage in the forbidden counseling, even on its

own time with its own money.” Massachusetts v. Secre-

tary of HHS, 899 F.2d at 74. Thus, the separation re-

quirements force Title X programs to choose among

significantly curtailing activities to achieve the required

segregation, closing, and restricting the speech rights of

doctors and patients. Jd. at 75 n.13.

The Title X regulations require a segregation of

funded and non-funded activities that is plainly more

onerous than the administrative requirements upheld in

Taxation With Representation, more burdensome than

the administrative requirements invalidated in Massa-

16 A plurality in Massachusetts Citizens for Life found an im-

permissible burden in the recordkeeping requirements, disclosure obli-

gations, and solicitation limitations. Jd. at 256-63. Justice O’Connor

found the burden in the organizational restraints placed upon the

organization by the state. Jd. at 265-66 (O’Connor, J., concurring

in part and concurring in judgment).

26

chusetts Citizens for Life, and at least as burdensome as

the ban on editorializing invalidated in League of Women

Voters."" They fall clearly on the League of Women Vot-

ers-Massachusetts Citizens for Life rather than the Tazx-

ation With Representation side of the line. The speech-

impairing requirements of separation of subsidized and

non-subsidized activities, far from rendering the restric-

tions on the subsidized activities constitutional, imper-

missibly and unconstitutionally penalize the non-subsi-

dized, private activities, chilling protected speech in vio-

lation of the First Amendment."*

17 As the First Circuit specifically found, “this [separation]

requirement is significantly more onerous that the purely paper-

work requirements at issue in Regan.” 899 F.2d at 75 n.13. Sig-

nificantly, the requirement struck down as unconstitutionally bur-

densome in League of Women Voters, like the Title X regulations,

would have required stations to operate dual facilities in order to

exercise their protected First Amendment rights. 468 U.S. at 399-

401.

18The vague definitions of separation also burden independent

speech. Separation determinations will be made on a “case by

case” basis with four “non-exclusive factors” weighed. 53 Fed.

Reg. at 2940. No “examples” of combinations of factors that

would not be considered “separate” were given because such ex-

amples would be “misleading” given the “complex circumstances

and conditions that the Department will be considering.” Id.

When faced with a ban on unreasonable fundraising fees in

Riley, this Court rejected such case-by-case rules where free speech

might be chilled. 487 U.S. at 793-94. “Speakers . . . cannot be

made to wait for years before being able to speak with a measure

of security.” Id. at 794. In every case, the fundraiser would “risk

. . a mistaken adverse finding by the factfinder, even if the fund-

raiser and the charity believe that the fee was in fact fair.” Id.

“This scheme must necessarily chill speech in direct contravention

of the First Amendment dictates.” Id.

Likewise, Title X grantees’ speech with independent funds will

be chilled by the poorly defined separation requirement as they are

forced to go far beyond the requirements’ dictates to avoid de-

funding.

27

CONCLUSION

The Title X regulations thus pose a grave challenge to

fundamental First Amendment rights and to the central

premise that the government cannot invidiously discrimi-

nate in its subsidies and cannot condition entitlement to

benefits on the relinquishment of the right of free speech.

Accordingly, the National Association of Women Lawyers

and the National Conference of Women’s Bar Associa-

tions urge this Court to reverse the decision below and

strike down the regulations as unconstitutional.

Respectfully submitted,

JAMES F. FITZPATRICK *

Counsel of Record

L. HoPE O’KEEFFE

LAURENCE J. FREEDMAN

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

WALTER DELLINGER

DUKE LAW SCHOOL

July 27, 1990 Attorneys for Amici Curiae

* The research assistance provided by Steven Croley of the Yale

Law School and Jonathan Poisner of Boalt Hall School of Law is

gratefully acknowledged.