Planned Parenthood of Billings v. State of Mont., CV 85-182-BLG-JFB.

• Decision Date: 14 February 1986
• Docket Number: No. CV 85-182-BLG-JFB.,CV 85-182-BLG-JFB.
• Citation: 648 F. Supp. 47
• Parties: PLANNED PARENTHOOD OF BILLINGS, INC., Clayton McCracken, M.D. and Jane Doe, Plaintiffs, v. The STATE OF MONTANA, Ted Schwinden, individually and as Governor of the State of Montana, John Drynan, M.D., individually and as Director of the Montana Department of Health and Environmental Sciences, Defendants.
• Court: U.S. District Court — District of Montana

648 F. Supp. 47

PLANNED PARENTHOOD OF BILLINGS, INC., Clayton McCracken, M.D. and Jane Doe, Plaintiffs, v. The STATE OF MONTANA, Ted Schwinden, individually and as Governor of the State of Montana, John Drynan, M.D., individually and as Director of the Montana Department of Health and Environmental Sciences, Defendants.

No. CV 85-182-BLG-JFB.

United States District Court, D. Montana, Billings Division.

February 14, 1986.

Joel E. Guthals, Billings, Mont., and Roger K. Evans, Dara Klassel, Barbara E. Otten, Planned Parenthood Federation of America, New York City, for plaintiffs.

Frank C. Crowley, Sp. Asst. Atty. Gen., Mont. Dept. of Health & Environmental Science, and Roger Tippy, Helena, Mont., for defendant.

OPINION AND ORDER

BATTIN, Chief Judge.

On January 10, 1986, oral arguments were heard on plaintiffs' motion for summary judgment and defendants' motions for summary judgment and to dismiss. For the reasons stated below, plaintiffs' motion is granted and defendants' motions are denied.

FACTS AND CONTENTIONS

Planned Parenthood of Billings, Inc., (PPB) is a non-profit corporation providing reproductive health care services for greater Yellowstone County, Montana. PPB's services include family planning counseling and medical services for both males and females. A large number of patients are low income women. PPB, owner of the building in which it is located, leases space and other services to the Yellowstone Valley Women's Clinic (YVWC), a non-profit corporation providing low cost surgical reproductive services including abortion. Plaintiff McCracken is a duly licensed physician providing family planning services at PPB and medical services at YVWC. Plaintiff Jane Doe receives services at PPB through subsidy and desires access to YVWC in the event of an unplanned pregnancy.

Title X of the Public Health Service Act, 42 U.S.C. §§ 300, 300a, et seq., authorizes federal funding for family planning services. The funds are granted by the Department of Health and Human Services (DHHS) to the State of Montana which in turn administers the program through defendant John Drynan, head of the Montana Department of Health and Environmental Sciences (MDHES), who contracts with local delegate agencies. PPB has received this funding, currently comprising 30-33% of its income, since 1972. Section 1008 of the Act, 42 U.S.C. § 300a-6, expressly prohibits funding programs using abortion as a method of family planning. PPB does not provide abortion services.

The General Appropriations Act of 1985 for the State of Montana, House Bill No. 500, effective July 1, 1985, provides in part that "funds appropriated for family planning services are contingent upon the recipient providing such services in a physical plant that does not contain an abortion clinic or facility that performs abortions." Because of the newly enacted co-location proviso, MDHES informed PPB that it was not eligible for federal funding due to its space sharing contract with YVWC.

On June 7, 1985, plaintiffs initiated this suit pursuant to 42 U.S.C. § 1983 seeking a judgment under 28 U.S.C. §§ 2201 and 2202 declaring the co-locational proviso unconstitutional. On June 25, 1985, the Court issued a preliminary injunction, in accord with Rule 65(a) F.R.Civ.P., prohibiting enforcement of the proviso pending final determination of this matter. In their complaint plaintiffs asserted five causes for relief as follows: (1) the Appropriations Act adds an impermissible eligibility requirement for the Title X funds in violation of the Supremacy Clause of the United States Constitution, (2) the Act penalizes plaintiffs' and patients' rights to provide and receive family planning and abortion services, in violation of the right to privacy guaranteed by the Fourteenth Amendment to the United States Constitution, (3) the Act penalizes PPB's right to associate with YVWC, as guaranteed by the First and Fourteenth Amendments, (4) the Act penalizes PPB's right to equal protection by funding all other providers not located in the same physical plant as abortion facilities, in violation of the Fourteenth Amendment, and (5) the Act interferes with PPB's right to contract with YVWC, in violation of Article I, § 10, of the United States Constitution.

The parties agree that, except for the second cause, motions for summary judgment or to dismiss are appropriate methods of disposition. Because asserted factual matters exist in dispute as to the second cause, the burden on the right to abortion, it is not subject to discussion herein.

DISCUSSION

Before the Court may address the merits of plaintiffs' Supremacy Clause argument, it is necessary to determine whether 42 U.S.C. § 1983 is available to plaintiffs as a remedy for enforcement of the Public Health Service Act. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In Maine v. Thiboutet, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 confers a private federal right of action, to be broadly construed, and for damages and injunctive relief to redress violations by state officials of rights created by federal statutes as well as by the Federal Constitution. Whether § 1983 is available to enforce a particular statute depends upon two factors: (1) Congress must not have foreclosed private enforcement of the statute and (2) the statute must create enforceable rights. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981); Pennurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). There is a presumption that a federal statute creating enforceable rights may be enforced in a § 1983 action. Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 739 F.2d 1467, 1470 (9th Cir.1984).

As stated in Almond Hill School v. U.S. Dept. of Agriculture, 768 F.2d 1030, 1035 (9th Cir.1985), "the first factor, foreclosure of private enforcement, ultimately asks whether Congress intended to preclude recourse to remedies outside of the particular statute in this case, the Public Health Service Act. Although the statute may not furnish a private remedy under its terms, such enforcement through § 1983 is still possible if Congress did not act in a manner that would suggest a prohibition on private enforcement. An intent to foreclose private remedies may be inferred if the remedial devices in the statute are `sufficiently comprehensive' to suggest exclusivity, quoting Middlesex, 453 U.S. at 20, 101 S.Ct. at 2626." A reading of the Public Health Service Act does not reveal a precise or elaborate remedial scheme that would be obfuscated by allowing enforcement through a § 1983 action. Accordingly, the first part of the test is satisfied.

In analyzing the second factor, creation of enforceable rights, the Court in Boatowners and Tenants Association v. Port of Seattle, 716 F.2d 669, 671 (9th Cir.1983), noted the divergent views on how broadly "rights" should be construed. The Court suggested the proper approach to defining an enforceable federal right be drawn from Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), namely a consideration whether the plaintiff is a member of the class for whose benefit the statute was enacted. In this case, the statutory language and legislative history indicate an intent to improve and expand the availability of and information concerning family planning services, and to assure proper supervision and administration of family planning services, by providing grants to public or nonprofit private entities or state health authorities. 1970 U.S. Code Cong. and Adm. News, pp. 5054, 5068-5082; 42 U.S.C. §§ 300, 300a, et seq. Plaintiffs, as especially benefitted from proper authorization and distribution of federal funding. Accordingly, plaintiffs fall within the class of those entitled to lawful coordination of funding by the MDHES. As such, plaintiffs satisfy the second factor of the test. Therefore, the Court concludes that because the Public Health Service Act creates federally enforceable rights in the plaintiffs and there exists no Congressional intent to preclude private enforcement, § 1983 provides a cause of action to...