Planned Parenthood Federation of America v. Bowen

• Decision Date: 25 February 1988
• Docket Number: Civ. A. No. 88-Z-158.
• Citation: 680 F. Supp. 1465
• Parties: 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., Plaintiffs, v. Otis BOWEN, M.D., individually and in his capacity as Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Colorado

680 F. Supp. 1465

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., Plaintiffs, v. Otis BOWEN, M.D., individually and in his capacity as Secretary of the United States Department of Health and Human Services, Defendant.

Civ. A. No. 88-Z-158.

United States District Court, D. Colorado.

February 25, 1988.

James W. Hubbell, Kelly/Haglund/Garnsey & Kahn, Denver, Colo., Roger K. Evans, Dara Klassel, Beth Otten, Planned Parenthood Federation of America, Inc., New York City, for plaintiffs; Jeffrey R. Oritt, Tibbals, Howell, Jones & Moxley, Salt Lake City, Utah, Howard Holme, Fairfield & Woods, Denver, Colo., of counsel.

Chalk Mitchell, Asst. U.S. Atty., Denver, Colo., Robert J. Cynkar, Thomas Millet, Federal Programs Branch, Civ. Div., Dept. of Justice, Washington, D.C., for defendant.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

WEINSHIENK, District Judge.

The matter is before the Court on plaintiffs' Motion For Preliminary Injunction pursuant to Fed.R.Civ.P. 65. The action arises out of defendant's recent promulgation of regulations governing the activities of entities receiving funds for family planning services under Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6a. In their complaint and motion for preliminary injunctive relief, plaintiffs contend that the regulations in question are invalid because they exceed statutory authority, are arbitrary and capricious, and are unconstitutional. For the reasons stated below, the Court is satisfied that plaintiffs have a substantial likelihood of success on the merits and have shown irreparable injury. Based on these and other findings, the Court concludes that a Preliminary Injunction is appropriate, which will delay the effective date of the regulations until the Court conducts a hearing on the merits.

Congress passed Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6a, in 1970. Section 1008 of Title X, which forms the basis of the present controversy, provides: "None 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 (1970) (hereinafter "§ 1008"). Initially, defendant interpreted § 1008 through a series of legal opinions issued by its Office of General Counsel (OGC). Thereafter, in 1976 and 1981, defendant issued Program Guidelines for Title X projects. These opinions and guidelines are discussed in greater detail below. On February 2, 1988, defendant promulgated the final regulations relating to compliance with § 1008 which form the basis of the present controversy. 53 Fed. Reg. 2922-2946 (Feb. 2 1988).¹

Standard For Issuance Of A Preliminary Injunction

In order for the Court to issue a preliminary injunction, plaintiffs must satisfy the four elements set forth in Lundgrin v. Claytor, 619 F.2d 61 (10th Cir.1980). Specifically, plaintiffs must establish that (1) there is a substantial likelihood that they will eventually prevail on the merits; (2) they will suffer irreparable injury unless the Court issues the injunction; (3) their threatened injury outweighs whatever damage the proposed injunction may cause defendant; and (4) the injunction, if issued, would not be adverse to the public interest. Id. at 63.

Substantial Likelihood of Success on the Merits

Plaintiffs must demonstrate inter alia a substantial likelihood of success on the merits before the Court can issue a preliminary injunction. To satisfy their burden in this regard, plaintiffs advance three separate theories to support their contention that the regulations in question are invalid. First, plaintiffs argue that Title X and, specifically, § 1008 do not authorize said regulations. Second, plaintiffs contend that the regulations violate the Administrative Procedure Act, 5 U.S.C. § 706 (1977), because they are arbitrary and capricious. Finally, plaintiffs assert that the regulations are unconstitutional. For reasons stated herein, the Court finds that neither Title X nor § 1008 in particular authorize the regulations at issue, so that plaintiffs have established a substantial likelihood of success on the merits. Accordingly, the Court need not address plaintiffs' second and third theories stated above in resolving this first element of the Lundgrin test.

Regarding the question of whether defendant lacked or exceeded its statutory authority in enacting the regulations in question, the precise issue is whether Title X and, in particular, § 1008 authorize said regulations.² The Court is the "final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear Congressional intent." Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Upon careful review of the totality of the circumstances surrounding Congressional enactment of Title X and § 1008, as well as its relevant subsequent history, the Court is convinced that Congress did not authorize defendant to enact regulations which restrict a woman's access to information about abortion.

Analyzing the "totality of the circumstances" does not mean merely looking at an isolated quote from one member of Congress. As the Supreme Court stated in Consumer Products Safety Commission v. GTE Sylvania, "the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history, ... and we do not think that ... an isolated remark of a Congressman ... is entitled to much weight." 447 U.S. 102, 118, 100 S.Ct. 2051, 2061, 64 L.Ed. 2d 766 (1980). Accordingly, the Court does not accord much weight to the 1970 statements of Congressman John Dingell, a sponsor of Title X, which defendant cites in both its brief and in the comments accompanying the regulations to support its contention that § 1008 authorizes the regulations at issue. See 53 Fed.Reg. 2922-23 (Feb. 2, 1988), quoting 116 Cong.Rec. 37375 (1970). Similarly, the Court does not give much weight to Congressman Dingell's October 14, 1987 letter to defendant, cited by plaintiffs, in which Congressman Dingell attempts to explain his 1970 statement and clarify his understanding of Congressional intent in enacting Title X. Letter from the Hon. John D. Dingell to the Hon. Otis R. Bowen (October 14, 1987), reprinted in Plaintiffs' Brief, Appendix at A-1.

The totality of the circumstances which a Court must review to determine whether a statute authorizes questioned regulations consists of the following elements: (1) the language of the statute itself; (2) its contemporaneous legislative history; (3) early and subsequent constructions of the statute by the relevant agency, and (4) relevant subsequent legislation which sheds light on Congressional purpose in enacting the statute. Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108-120, 100 S.Ct. 2051, 2056-62, 64 L.Ed.2d 766 (1980).

Although the starting point of the Court's analysis, the language of § 1008 itself is not particularly helpful in determining whether § 1008 authorizes the regulations in question. The statute makes no reference to prohibiting either the neutral dissemination of information about abortion or referrals upon request to entities which provide abortions. As a result, the Court must look beyond the language of § 1008 to determine the scope of defendant's statutory authority.

In reviewing the contemporaneous legislative history of Title X, two central themes emerge regarding Congressional intent. First, the contemporaneous legislative history is replete with references to the fact that Congress intended it to be a "comprehensive" program "flexible" in its design. See e.g. 1970 U.S.Code Cong. and Admin. News pp. 5068, 5073-74; 116 Cong.Rec. 24094-96 (1970). In addition, the Congressional Declaration of Purpose which accompanies Title X spells out its comprehensive scope. See 42 U.S.C. § 300, Congressional Declaration of Purpose. Also, the Committee Report supporting Title X states that among the components of a successful family planning program are: "(1) Medical services, including consultation, examination, prescription, and continuing supervision ... and referral to other medical services as needed. (2) Outreach/followup system, including patient identification, contact, recruitment, appointment support, followup, and continuing education...." Senate Comm. On Labor And Public Welfare, Title X of the Public Health Service Act of 1970, S.Rep. No. 91-1004, 91st Cong., 2nd Sess., reprinted in 116 Cong.Rec. 24096 (1970) (emphasis added), 1970 U.S.Code Cong. and Admin.News p. 5068. The weight of the evidence is that Congress intended Title X to be a broad-based program, designed to accomplish more than simply distribute contraceptives. Admittedly, Congress did not intend for Title X to be a panacea for the entire array of women's health problems; however, Congress certainly intended it to have a broader scope than defendant's interpretation suggests. The regulations simply do not accord with Congress' broad understanding of the breadth of Title X.

The second central theme which emerges from the Court's analysis of the contemporaneous legislative history is that Congress designed Title X to combat the problem of access to family planning services for women with low incomes. The legislative history contains several references to the need to eliminate the then emerging two-tier system of delivery of family planning services by ensuring that no woman is "denied access to family planning assistance because of her economic condition." 1970 U.S.Code Cong. & Admin.News pp. 5068, 5073; see also 116 Cong.Rec. 24091-92 (1970). The proposed regulations contravene this legislative purpose by recreating a two-tier system of delivery of...