PLANNED PARENTHOOD, ETC. v. State of Ariz., CIV 80-665 PHX WEC.

Citation537 F. Supp. 90
Decision Date08 February 1982
Docket NumberNo. CIV 80-665 PHX WEC.,CIV 80-665 PHX WEC.
PartiesPLANNED PARENTHOOD OF CENTRAL AND NORTHERN ARIZONA, an Arizona non-profit corporation; Planned Parenthood of Southern Arizona; Jack Bashaw, M.D., on behalf of himself, his patients, and all others similarly situated, Plaintiffs, v. The STATE OF ARIZONA; Bruce E. Babbitt, individually and as Governor of the State of Arizona; William Jamieson, individually and as Director of the Department of Economic Security; Robert K. Corbin, individually and as Attorney General of the State of Arizona, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

Dushoff & Sacks, Phoenix, Ariz., for plaintiffs.

Anthony B. Ching, Sol. Gen. of Ariz., Phoenix, Ariz., for defendants.

CRAIG, District Judge.

ORDER

Plaintiffs are private non-profit Arizona corporations which provide a full range of family planning services, counseling for abortion procedures, and the dissemination of general abortion information. Prior to the passage of a General Fund Appropriations Bill by the Arizona State Legislature, plaintiffs had been funded in part with Federal funds, and in part with State "in kind" matching funds, under Title XX of the Social Security Act, 42 U.S.C. § 1397.

A footnote to the abovementioned Appropriations Bill prohibited state money from being given to agencies or entities which offer abortions, abortion procedures, "counseling for abortion procedures" or "abortion referrals". But for the footnote in question the plaintiffs would be fully qualified to receive a portion of the state funds.

The right to advertise and disseminate abortion information was clearly recognized in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). Furthermore, counseling patients in regards to abortion procedures or abortion referrals is protected by the First Amendment. Young Women's Christian Ass'n of Princeton, N.J. v. Kugler, 342 F.Supp. 1048 (D.N.J.1972).

It is a well settled principle of constitutional law that governmental regulations limiting free speech rights, which seek to stifle a communication because of its content are fundamentally at odds with the First Amendment. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Because the primary purpose of the footnote is to limit the constitutionally protected communication of abortion information, the footnote must be declared unconstitutional.

In order for the plaintiffs to continue to be eligible recipients of the state funds they must comply with the dictates of the footnote. Such compliance necessarily means that the plaintiffs would be prohibited from exercising their First Amendment right to disseminate abortion information.

It is clear from the abovementioned cases that the First Amendment prohibits the state from directly restricting the plaintiffs from engaging in "abortion counseling" or "abortion referral". By way of the footnote to the Appropriations Bill however, the State in attempting to restrict the plaintiff's freedom of speech tries to accomplish indirectly what it cannot do directly. This attempt to usher through the "back door" a result which the state could not accomplish directly was rejected by the Supreme Court in Perry v. Sinderman 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). There, the Court held:

"For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on the basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which
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3 cases
  • Planned Parenthood of Cent. and Northern Arizona v. State of Ariz.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 18, 1983
    ...summary judgment, declared the footnote unconstitutional and permanently enjoined its enforcement. Planned Parenthood of Central & Northern Arizona v. Arizona, 537 F.Supp. 90 (D.Ariz.1982). The State now appeals the summary judgment, the attorneys' fee awarded to Planned Parenthood, and a p......
  • Planned Parenthood Ass'n Chicago Area v. Kempiners
    • United States
    • U.S. District Court — Northern District of Illinois
    • August 9, 1983
    ...no other counseling. 20 At least one other court has employed this analysis to strike down a similar statute. See Planned Parenthood v. Arizona, 537 F.Supp. 90 (D.Ariz.1982). 21 Since we have held that the statute is unconstitutional even when an application for funding requests state funds......
  • Com. of Mass. v. Bowen
    • United States
    • U.S. District Court — District of Massachusetts
    • March 3, 1988
    ...or use of public facilities, for the purpose of, inter alia, counseling a woman to have an abortion); Planned Parenthood v. State of Arizona, 537 F.Supp. 90 (D.Ariz. 1982) (invalidating as unconstitutional a bill which prohibited state money from being given to agencies which offer abortion......

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