National Family Plan. & Repro. Health v. Gonzales

• Citation: 468 F.3d 826
• Decision Date: 14 November 2006
• Docket Number: No. 05-5406.,05-5406.
• Parties: NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, INC., Appellant v. Alberto GONZALES, Attorney General of the United States, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

468 F.3d 826

NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, INC., Appellant v. Alberto GONZALES, Attorney General of the United States, et al., Appellees.

No. 05-5406.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2006.

Decided November 14, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cv02148).

James L. Feldesman argued the cause for appellant. With him on the briefs were Kathy S. Ghiladi and Robert A. Graham.

August E. Flentje, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Robert M. Loeb, Attorney.

Stephen H. Aden argued the cause for appellees Christian Medical Association and American Association of Pro-Life Obstetricians and Gynecologists. With him on the brief was Benjamin W. Bull.

Jay Alan Sekulow, Colby M. May and James M. Henderson, Sr. were on the brief for amici curiae for U.S. Representative Henry J. Hyde, et al. in support of appellees.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge.

At the end of 2004 Congress adopted a provision commonly known as the Weldon Amendment (named after Representative David Weldon), prohibiting recipients of federal grant funds from discriminating against individuals or entities that refuse to provide or refer for abortions. Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, § 508(d), 118 Stat. 2809, 3163. It reenacted the same provision the next December. Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2006, Pub.L. No. 109-149, § 508(d), 119 Stat. 2833, 2879-80. Five days after the initial enactment, the National Family Planning and Reproductive Health Association filed suit in district court. Its substantive claims—at least the ones making it to the appeal—are that the amendment's alleged vagueness violates the First Amendment, for which it cites Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), and the limits of Congress's spending power, for which it cites Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (holding that a statute exercising Congress's spending power imposes legally binding conditions on a recipient state only if it expresses the binding character unambiguously). The district court found standing but on the merits denied the requested injunction and granted summary judgment for the government. We find no standing.

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Under Title X of the Public Health Service Act, 42 U.S.C. § 300, the Secretary of Health and Human Services "is authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects . . . ." Most Title X funds flow initially to state and local governmental agencies and non-profit organizations. These grantees function as intermediaries that in turn distribute the funds to subgrantees who actually administer the programs. The plaintiff association is an organization comprised largely of Title X grantees and subgrantees, including state and local agencies, nonprofit organizations, clinics, and individuals employed by such entities.

The association's vagueness theory rests in large part on an alleged conflict between the Weldon Amendment and a Health and Human Services ("HHS") regulation governing Title X funds. The regulation, most recently amended in 2000, requires all recipients of Title X funds to "offer pregnant women the opportunity to be provided information and counseling regarding . . . pregnancy termination." 65 Fed.Reg. 41,270, 41,279/1 (July 3, 2000). Neither party disputes that the regulation was an appropriate exercise of the Secretary's rulemaking authority (though the government notes, and plaintiff doesn't contest, that in the event of conflict the regulation must yield to a valid statute). The Weldon Amendment, on the other hand, protects institutional and individual providers that wish not to provide or refer for abortions:

(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.

(2) In this subsection, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.

Consolidated Appropriations Act, 2005, § 508(d).

The complaint asserts that the association's members do not know how to abide by the 2000 HHS regulation as well as the Weldon Amendment and are therefore in jeopardy of losing federal grants. Arguing that its members face pervasive uncertainty as to their obligations under the two provisions, it seeks declaratory relief and a preliminary injunction against enforcement of the amendment.

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Constitutional standing requires that a plaintiff show "injury in fact," which the Supreme Court has defined as "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotations omitted). An actual withdrawal of funding from the association's members would clearly qualify, but the association doesn't suggest that any such withdrawal has occurred.

The association does say, however, that its members face an imminent threat of injury, including loss of funding, because of the alleged conflict between the regulation and the amendment. They claim to be in a Catch-22: If they obey the amendment, they'll violate the regulation, and vice versa. Either way, they say, they are bound to violate one of the conditions of their funding. Although of course a valid statute always prevails over a conflicting regulation, the alleged vagueness of the statute leaves the association uncertain whether the amendment or the regulation will govern a variety of situations. Compare Abbott Laboratories v. Gardner, 387 U.S. 136, 153-54, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), where the plaintiff firms faced the hardship of choosing (without authoritative guidance) between compliance with a possibly unlawful regulation at considerable expense, and non-compliance, at the risk of being subjected to after-the-fact enforcement that would entail fines and reputational losses. But even if the same standard applied to challenges to a statute as to a regulation, cf. Seegars v. Gonzales, 396 F.3d 1248, 1254 (D.C.Cir.2005) (noting a possible distinction), the association falls far short of showing the necessary likelihood of any injury.

We start by noting a background point—the association's complete failure to show that HHS's enforcement mechanism is one that would really burden a grantee that guessed wrong. There is no suggestion in its papers that good-faith conduct violating a grant condition would trigger an immediate funding cut-off, much less the sort of retroactive penalty that was involved in Abbott Labs.

Turning to the interaction of the substantive provisions themselves, we must look separately at the Weldon Amendment's conditions on Title X grantees with respect to individuals who refuse to refer for or provide abortions, and organizations so refusing. We start with grantees' obligations to individuals.

The association asserts that if an individual caregiver objects to providing abortion counseling to a pregnant woman but wants to retain a pregnancy counseling job, reassigning that caregiver to another job might amount to "discrimination" banned by the amendment. But Congress enacted a provision in 1974 similarly protecting exercises of individual rights of conscience, saying that no individual could be compelled to perform a service, in conjunction with an HHS program, that "would be contrary to his religious beliefs or moral convictions." National Research Act, Pub.L. No. 93-348, § 214, 88 Stat. 342, 353 (codified at 42 U.S.C. § 300a-7(d)).

Despite the apparently similar potential for conflict between the pre-Weldon conscience provisions and the current Title X regulation (dating from 2000), they have enjoyed a quite peaceful co-existence. Plaintiff doesn't point to a single instance in which the government...