LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. COMMONWEALTH OF MASSACHUSETTS, ET AL. No. 89-1929 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of Louis W. Sullivan, Secretary of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit PARTIES TO THE PROCEEDINGS Petitioner, defendant-appellant below, is Louis W. Sullivan, Secretary of Health and Human Services. Respondents, plaintiffs-appellees below, are the Commonwealth of Massachusetts, the National Family Planning and Reproductive Health Association, the American Public Health Association, the Family Planning Council of Western Massachusetts, Healthworks -- a Family Life Resource Center, Action For Boston Community Development, Inc., Health Awareness Services of Central Massachusetts, Inc., Health Care of Southeastern Massachusetts, Inc., the California Family Planning Council, the Los Angeles Regional Family Planning Council, the Missouri Community Health Corporation, St. Louis Family Planning Council, Inc., the Family Planning Council of Southeastern Pennsylvania, Martin Friedfeld, Steven Sondheimer, and Mary Moe. 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 en banc opinion of the court of appeals (App., infra, 1a-57a) is reported at 899 F.2d 53. The panel opinion of the court of appeals (App., infra, 58a-120a) is not officially reported. The opinion of the district court (App., infra, 121a-141a) is reported at 679 F. Supp. 137. JURISDICTION The judgment of the en banc court of appeals (App., infra, 144a) was entered on March 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED The text of the relevant constitutional, statutory, and regulatory provisions are reprinted in the appendix to this petition. App., infra, 145a et seq. 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. 4. Whether any invalid provisions of the regulations are severable from the remaining ones. 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(a)(9) (1972); see 36 Fed. Reg. 18,465 (1971); 45 Fed. Reg. 37,436 (1980). The statute was interpreted, however, to allow grantees to provide "non-directive 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 program 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 projects 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). 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 abortion services, whether provided by the grantee or any other organization. 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 if 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 restrictions 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 activity engaged in by a grantee or its affiliates outside of its Title X project has 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 Massachusetts, challenging the facial validity of the regulations on statutory and constitutional grounds. The district court invalidated the regulations on both statutory and constitutional grounds. App., infra, 121a-141a. The court held that, since the regulations changed past policy, the Secretary "must justify (his) action to a greater degree than when (he) first promulgates regulations." Id. at 127a. The court held that the regulations did not satisfy this heightened scrutiny. Id. at 128a-129a. The court also held that the regulations in part violated the First Amendment on the grounds that the conditions of eligibility penalized constitutionally protected speech and also discriminated on the basis of viewpoint. Id. at 136a-139a. Finally, the court held that the regulations placed "an impermissible burden on the presently recognized rights of a pregnant client of a Title X clinic" to have an abortion. Id. at 139a-140a. 4. The court of appeals affirmed by a divided vote. App., infra, 58a-120a. The majority held that the regulations were within the Secretary's statutory authority under Title X with the exception of the so-called program integrity regulations, which the majority held invalid under the statute. App., infra, 63a-77a. But the majority held that the regulations' exclusion of counseling and referrals about abortion from the services subsidized by Title X "infringe(s) upon women's freedom of reproductive choice by denying them access to important information and interfering with the physician-patient relationship." App., infra, 85a. In addition, the majority held that prohibiting Title X grantees from using Title X program funds to engage in abortion-related advocacy is "content-based regulation" and an "attempt() to limit public discussion on abortion rights," in violation of the First Amendment. App., infra, 93a, 94a. Judge Torruella dissented in part. App., infra, 101a-120a. He agreed with the majority that the so-called program integrity provisions violated Title X. App., infra, 105a-106a. He also concluded that the matching fund provision in the regulations violated the First Amendment by improperly limiting the uses to which a Title X grantee could put private funds. App., infra, 107a-109a. Moreover, he would have held invalid under Roe v. Wade, 410 U.S. 113 (1973), the requirement that a Title X grantee refer a pregnant woman to a prenatal care facility, on the ground that the provision requires physicians "to refer patients only to 'pro-life' institutions." App., infra, 110a. At the same time, Judge Torruella would have upheld the exclusion of abortion-counseling from Title X programs because "(t)he government is not obliged under Roe to provide complete information on all child bearing alternatives to all women who could not otherwise afford it." App., -infra, 116a. Judge Torruella also emphasized that the Secretary's refusal to fund abortion advocacy does not prohibit any advocacy that, but for Title X, would otherwise exist, and that "there are private and state agencies that will continue to provide these services." App., infra, 118a. He also noted that if the majority's construction of the First Amendment were consistently applied, it would invalidate "every non-neutral statement and every funding decision" made by the government, all of which necessarily advance or oppose contending views of social policy. Ibid. 5. The court of appeals granted the government's suggestion for rehearing en banc, and affirmed by a 4-1 vote, essentially for the reasons given by the panel majority. App., infra, 1a-57a. In addition, responding to this Court's intervening decision in Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989), /6/ the en banc majority held that the regulations place an obstacle in the path of a woman's ability to have an abortion. App., infra, 34a-40a. The en banc majority reasoned that a woman treated at a project funded by Title X would receive "incomplete information" or "misinformation rather than no information about (her) options." App., infra, 34a, 35a. Moreover, since a woman would have spent some of her funds at a Title X clinic, the regulations reduce her ability to go elsewhere and therefore burden her right to obtain an abortion, and also "restrict() the private funds available for abortion counseling and services." App., infra, 34a, 35a. The en banc majority also held that the invalid portions of the regulations were not severable from the remaining provisions, and therefore held the regulations invalid in their entirety. Id. at 47a-49a. Finally, the majority expressly disagreed with the result and the reasoning of the Second Circuit's decision in New York v. Sullivan, 889 F.2d 401 (1989), which had upheld the regulations against statutory and constitutional challenges. App., infra, 38a-40a. Judge Torruella again dissented. Relying on this Court's decision in Webster and the Second Circuit's decision in New York v. Sullivan, supra, he concluded that "the Secretary has merely refused to fund an activity which the government is not constitutionally required to support, without imposing legal obstacles to a citizen's choice of action in a protected area." App., infra, 56a. REASONS FOR GRANTING THE PETITION The court of appeals erroneously 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 & 89-1392 (May 29, 1990). The first three questions presented in this case are identical to the questions presented in the Rust case, which the Court has already decided to review. The Second Circuit upheld the regulations in their entirety over statutory and constitutional challenges and therefore did not reach the severability question, which the en banc First Circuit addressed. That question would arise in the Rust case, however, if the Court were to hold a portion of the regulations invalid. For these reasons, the petition in this case should 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 as appropriate in light of the Court's decision in Rust v. Sullivan, cert. granted, Nos. 89-1391 & 89-1392 (May 29, 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 JUNE 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-8 (1982 & Supp. V 1987). /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 abortion 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." 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 used as matching funds; 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/ The panel majority had relied on the court of appeals' decision in Reproductive Health Services v. Webster, 851 F.2d 1071 (8th Cir. 1988), see App., infra, 90a-91a, which this Court subsequently reversed, 109 S. Ct. at 3050-3053. APPENDIX