LOUIS SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. PLANNED PARENTHOOD FEDERATION OF AMERICA, ET AL. No. 90-890 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of Dr. Louis Sullivan, Secretary of the Department of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit PARTIES TO THE PROCEEDINGS Petitioner, defendant-appellant below, is Dr. Louis Sullivan, Secretary of Health and Human Services. Respondents, plaintiffs-appellees below, are Planned Parenthood Federation of America, Planned Parenthood of the Rocky Mountains, Planned Parenthood Association of Utah, Boulder Valley Women's Health Center, Marilyn Foelski, M.D., Philip Freedman, M.D., and Kirtly Jones, M.D. TABLE OF CONTENTS Questions Presented Parties To The Proceedings Opinions below Jurisdiction Constitutional, statutory, and regulatory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-29a) is reported at 913 F.2d 1492. The decisions of the district court (App., infra, 30a-71a) are reported at 680 F. Supp. 1465 (preliminary injunction) and 687 F. Supp. 540 (permanent injunction). JURISDICTION The judgment of the court of appeals was entered on September 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED The text of relevant constitutional, statutory, and regulatory provisions is reproduced in the appendix to this petition. App., infra, 72a-81a. QUESTIONS PRESENTED Title X of the Public Health Service Act, which authorizes federal grants to support the provision of family planning services, provides that "(n)one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. 300a-6. The implementing regulations prohibit Title X grant recipients from providing, within their Title X programs, abortions or abortion-related services, including counseling clients about abortion, referring them for abortions, or engaging in abortion-related advocacy. The questions presented are the following: 1. Whether the regulations violate Title X. 2. Whether the regulations violate the Fifth Amendment right of a pregnant woman to terminate her pregnancy. 3. Whether the regulations violate the First Amendment rights of grantees and pregnant women. STATEMENT 1. Title X of the Public Health Service Act /1/ authorizes the Secretary of Health and Human Services to make grants nationwide to public and private nonprofit entities to establish "projects" /2/ that "shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents)." 42 U.S.C. 300. Congress provided, however, that "(n)one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. 300a-6. That restriction was intended to ensure that Title X funds would "be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities." H.R. Conf. Rep. No. 1667, 91st Cong., 2d Sess. 8 (1970). 2. The initial implementing regulations required that grantees "not provide abortions as a method of family planning" in Title X programs. 42 C.F.R. 59.5(9) (1972); see 36 Fed. Reg. 18,466 (1971); 45 Fed. Reg. 37,437 (1980). The statute was interpreted, however, to allow grantees to provide "nondirective counseling" about pregnancy termination, including information about and referral for abortions through the provision of the names, addresses, and telephone numbers of abortion providers. In 1988, in order to bring the Title X programs more in line with the text and purposes of 42 U.S.C. 300a-6, the Secretary adopted new regulations that altered the counseling and referral policy; the regulations also clarified pre-existing limitations on abortion-related advocacy and requirements of physical and financial separation from the performance of abortion-related activities. See 53 Fed. Reg. 2922, 2923-2925 (1988). The new regulations prohibit Title X grantees from engaging in those activities that assist a woman to obtain an abortion, while not interfering with the right to receive information about abortion from sources other than Title X projects. More specifically, the regulations attach three major conditions to the grant of federal funds for Title X projects. First, a "Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning." 42 C.F.R. 59.8(a)(1). Title X projects may not counsel their clients about abortion as a family planning method whether such counseling is neutral, favors, or opposes abortion. Nor may a Title X project assist women in procuring an abortion for family planning purposes by providing them with referrals to entities that provide abortions or abortion-related services as their principal business. 42 C.F.R. 59.8(a)(2) and (3). At the same time, the regulations do not forbid a Title X project from making clear to its clients that the project only provides preventive family planning services and does not assist in procuring abortions and abortion-related services. Second, the so-called "program-integrity" regulations clarify the required degree of physical and financial separation between Title X projects and the other parts of a grantee's organization that might provide abortion services. The regulations call for a case-by-case determination of "objective integrity and independence" based upon (but not limited to) factors such as (a) the existence of separate accounting records; (b) the degree of separation from facilities (e.g., treatment, consultation, examination, and waiting rooms) in which prohibited activities occur and the extent of such prohibited activities; (c) the existence of separate personnel; (d) the extent to which signs and other forms of identification of the Title X project are present and signs and material promoting abortion are absent. 42 C.F.R. 59.9. There are no other restrictions in that section on the relationship between a grantee's Title X project and its other activities, or on the activities of parent or affiliate organizations. Third, the regulations codify and clarify the preexisting prohibition on abortion advocacy, and give examples of activities so proscribed, such as lobbying and using legal action to make abortion available as a method of family planning. /3/ The regulations' restrictions concern only abortion as a method of family planning. The regulations require a Title X project to refer a client for necessary treatment in a medical emergency, even when this treatment would normally involve an abortion. See 42 C.F.R. 59.8(a)(2) and (b)(2). But the principal focus of Title X's subsidies is "(f)amily planning," which is defined as "the process of establishing objectives for the number and spacing of one's children and selecting the means by which those objectives may be achieved." 42 C.F.R. 59.2. Thus, the medical services that Title X supports also do not include post-pregnancy services, such as prenatal and obstetric care. Accordingly, if a client of a Title X project is diagnosed as pregnant and no medical emergency is present, she must be referred to an entity that will offer prenatal pregnancy care. /4/ The regulations do not attempt to constrict the information that a Title X client might receive at a prenatal care facility; the fact that a pregnant woman received counseling about abortion as a method of family planning at the prenatal care facility would not, in itself, violate the regulations. But a Title X project may not employ prenatal care referrals as a means of circumventing Title X's restriction by "weighing the list of referrals in favor of health care providers which perform abortions, by including on the list * * * health care providers whose principal business is the provision of abortions, * * * or by 'steering' clients to providers who offer abortion as a method of family planning." 42 C.F.R. 59.8(a)(3). Moreover, the new regulations apply only "to the use of Title X project funds." 42 C.F.R. 59.10(a). /5/ Any abortion-related services provided or activities engaged in by a grantee or its affiliates outside of its Title X project have no effect on the grantee's Title X funding. 3. After the regulations had been promulgated, but before they had been applied, respondents brought this action in the United States District Court for the District of Colorado, challenging the facial validity of the regulations. The district court issued a preliminary injunction prohibiting the Secretary from enforcing the new regulations, App., infra, 30a-62a, which the court made permanent four months later on essentially the same grounds as those given for issuing the preliminary injunction, App., infra, 63a-71a. The court held that the Secretary lacked statutory authority to issue the regulations, App., infra, 35a-48a, and that the regulations violated the Fifth Amendment "because they impermissibly restrict the flow of information that a woman must have to make an informed decision whether to have an abortion." App., infra, 50a. The court also held that the regulations "represent content-based censorship" which impermissibly impedes a physician's First Amendment right to disseminate relevant medical information, as well as a woman's First Amendment right to receive such information. App., infra, 57a-59a. A divided panel of the court of the appeals affirmed. The court -- disagreeing with the district court -- first held that the Secretary had "sufficiently justified" the new regulations, "and we therefore cannot rule them to be arbitrary and capricious." App., infra, 9a. The one exception was the program-integrity regulation, 42 C.F.R. 59.9, which the court found to "violate() congressional intent." App., infra, 10a. Turning to the constitutional issues, the majority acknowledged that if the regulations required a clinic to say to a pregnant woman, "'Go away, we only give advice on prepregnancy planning,' then it might be said that the government has done no more than subsidize a permissible activity." App., infra, 13a. The majority further noted that "(i)f we could conclude that the pregnant women who are patients of Title X clinics are knowledgeable about their abortion option, or will seek advice from doctors not fettered by the Title X regulations, then we might conclude that Maher (v. Roe, 432 U.S. 464 (1977)) controls, because poverty alone does not give a woman the right to government-funded benefits." App., infra, 15a. The majority, however, concluded that many women would rely on the information provided by grantees, "(a)bsent a warning that the advice given at Title X clinics is incomplete," ibid., and that therefore the regulations constituted impermissible "state intrusion into the advice a woman requests from or is given by her doctor." App., infra, 17a. In addition, the majority concluded that the regulations violate the First and Fifth Amendment rights of Title X providers because they "condition receipt of Title X funds upon physicians' promises not to give advice that the standards of their profession require them to give." App., infra, 23a. Judge Baldock dissented. /6/ He would have upheld the exclusion of abortion counseling from Title X programs because the regulations "leave() a pregnant woman with essentially the same choice as if the government had chosen not to provide Title X grants at all." App., infra, 26a. He distinguished the precedents relied upon by the majority /7/ as involving restrictions directed to all doctors with respect to all pregnant patients, rather than restrictions accompanying a government funding decision with respect to a particular program. App., infra, 25a. Judge Baldock also concluded that there was no conflict between the regulations and the First Amendment, because the First Amendment imposes no duty on the government to subsidize the spread of information that it finds to be contrary to the public interest. App., infra, 27a. Judge Baldock concluded: "Through the HHS regulations, the government in this instance merely has chosen to encourage childbirth rather than abortion. That policy choice in no way contravenes the Constitution." App., infra, 28a. REASONS FOR GRANTING THE PETITION The majority below decided several questions of considerable public importance in a manner that expressly conflicts with the Second Circuit's decision in New York v. Sullivan, 889 F.2d 401 (1989), cert. granted sub nom. Rust v. Sullivan, Nos. 89-1391 and 89-1392 (May 29, 1990) (argued Oct. 30, 1990). The questions presented in this case are identical to the questions presented in the Rust case, which is under submission to this Court. The petition in this case should therefore be held and disposed of as appropriate in light of the Court's decision in the Rust case. CONCLUSION The petition for a writ of certiorari should be held and disposed of in light of this Court's resolution of Rust v. Sullivan, cert. granted, Nos. 89-1391 and 89-1392 (May 29, 1990) (argued Oct. 30, 1990). Respectfully submitted KENNETH W. STARR Solicitor General JOEL MANGEL Deputy Chief Counsel Public Health Service CAROL CONRAD Attorney Office of the General Counsel Department of Health and Human Services DECEMBER 1990 /1/ Title X was added to the Public Health Service Act by the Family Planning Services and Population Research Act of 1970, Pub. L. No. 91-572, Section 6(c), 84 Stat. 1506-1508, 42 U.S.C. 300 to 300a-6. /2/ "Title X project" and "Title X program" are used by the Secretary interchangeably, and can mean either the "program which is approved by the Secretary for support" or the "coherent assembly of plans, activities and supporting resources contained within an administrative framework." 42 C.F.R. 59.2. Moreover, while Title X services may be delivered through a family planning clinic, the Title X project may be only one aspect of that clinic. /3/ (1) Lobbying for the passage of legislation to increase in any way the availability of abortions as a method of family planning; (2) Providing speakers to promote the use of abortion as a method of family planning; (3) Paying dues to any group that as a significant part of its activities advocates abortion as a method of family planning; (4) Using legal action to make abortion available in any way as a method of family planning; and (5) Developing or disseminating in any way materials (including printed matter and audiovisual materials) advocating abortion as a method of family planning. 42 C.F.R. 59.10(a). /4/ The client must "be provided with information necessary to protect the health of mother and unborn child until such time as the referral appointment is kept." 42 C.F.R. 59.8(a)(2). /5/ Title X project funds are defined to include "grant funds, grant-related income or matching funds." 42 C.F.R. 59.2. Grant funds are those provided by the government; matching funds are the funds that must be supplied to the project by the grantee to cover the balance of expenses. Grant-related funds are funds generated by the Title X project through, for example, patient charges or reimbursement from collateral sources. The terms of the grant specify how grant-generated income may be used. The Secretary may allow these funds to be applied toward the 10% matching fund requirement; to be, in effect, returned to the government; or to be used to expand the Title X project. See, e.g., 45 C.F.R. 74.42(c)-(e). /6/ Judge Baldock agreed with the majority's conclusion that 42 C.F.R. 59.9 was invalid as contrary to congressional intent. App., infra, 24a n.1. /7/ Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). APPENDIX