899 F.2d 53 (1st Cir. 1990), 88-1279, Com. of Mass. v. Secretary of Health and Human Services

Docket Nº:88-1279.
Citation:899 F.2d 53
Party Name:COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, Appellees, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellant.
Case Date:March 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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899 F.2d 53 (1st Cir. 1990)

COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, Appellees,



No. 88-1279.

United States Court of Appeals, First Circuit

March 19, 1990

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Alfred Mollin, Appellate Staff, Civ. Div., Dept. of Justice, with whom Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., Boston, Mass., D. Mass., Joel Mangel, Deputy Chief Counsel, Public Health Service, Rockville, Md., Carol Conrad, Atty., Office of the Gen. Counsel, Dept. of Health and Human Services and John F. Cordes, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for defendant, appellant.

James M. Shannon, Atty. Gen., Boston, Mass., for the Com. of Mass., with whom Ruth A. Bourquin, Asst. Atty. Gen., Boston, Mass., David Cole of the Center for Constitutional Rights, Wendy Warring and Hill & Barlow, Boston, Mass., for intervenor Mary Moe, were on brief, for plaintiffs, appellees.

James L. Feldesman, with whom Susan D. Lauscher and Feldesman, Tucker, Leifer, Fidel & Bank, Washington, D.C., for Nat. Family Planning and Reproductive Health Ass'n and American Public Health Ass'n, were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.


BOWNES, Circuit Judge.

The Secretary of Health and Human Services (HHS) appealed from an injunction issued by the district court of Massachusetts enjoining enforcement of regulations promulgated under Title X of the Public Health Services Act, 42 U.S.C. Sec. 300 et seq. The regulations significantly alter HHS's interpretation of section 1008 of Title X, which provides that "[n]one of the funds

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appropriated under [Title X] shall be used in programs where abortion is a method of family planning." 42 U.S.C. Sec. 300a-6. Prior to the promulgation of the new regulations, the Secretary construed section 1008 to prohibit the use of Title X funds to encourage or promote abortion but to permit nondirective counseling to pregnant women on all available medical and legal options, including abortion. The new regulations prohibit any counseling or referral for abortion services and redefine the scope of Title X projects to restrict privately funded abortion-related activities. The district court found that the new regulations represented an abrupt reversal of a longstanding agency policy, and concluded that each of the various provisions either exceeded the statutory authority of the Secretary or infringed upon constitutionally protected activities. The court therefore enjoined the enforcement or application of the regulations.

A panel of this court heard argument on July 28, 1988 and affirmed the opinion of the district court with one judge dissenting in part. That opinion was withdrawn and an en banc hearing was held to consider the effect of the Supreme Court's decision in Webster v. Reproductive Health Services, --- U.S. ----, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), which was issued after the panel opinion. In Webster, a sharply divided Court upheld portions of a Missouri law that prohibited state funds or facilities from being used for abortions. The Court found that the Missouri law "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." 109 S.Ct. at 3052 (quoting Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)). The Court relied upon and reaffirmed the holdings of McRae and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) and upheld the validity of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and the right of reproductive choice. Thus Webster did not change the legal landscape upon which the panel opinion was based. We hold that although, with one exception, the regulations are permissible under the enabling statute, they are unconstitutional.


  1. The Title X Program

    The Family Planning and Services Population Research Act of 1970, which added Title X to the Public Health Service Act, authorizes the Secretary of Health and Human Services

    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 which shall offer a broad range of acceptable and effective family planning methods and services....

    42 U.S.C. Sec. 300(a). Title X grantees operate health care facilities offering a wide range of family planning information and services, including contraceptive prescriptions and counseling on all choices that follow pregnancy, and referrals to other medical service providers.

    The majority of Title X grantees are public health clinics. Many of these clinics provide abortion facilities on the same site as the Title X project, sharing many of the same staff and resources but relying on nonfederal funds for the abortion-related activities. Under the prior policy many of the Title X grantees provided women with abortion counseling and referrals. This longstanding agency policy was embodied in the Program Guidelines issued by HHS in 1981 which required that pregnant women be provided with "nondirective" counseling and referrals on alternative courses of action, such as prenatal care and delivery, infant care, foster care, adoption and abortion. See Program Guidelines for Project Grants for Family Planning Services (1981), reprinted in Joint Appendix (J.A.) at 71, 85.

    No family planning project can be completely funded by Title X. 42 C.F.R. Sec. 59.11(c). Projects that receive funds under Title X are required to provide nonfederal "matching funds" of at least 10% of the money provided through Title X. 42 U.S.C. Sec. 300a-4. In fact, "matching funds" comprise a much larger portion of

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    the budget than the required 10%. See, e.g., J.A. at 40-41, 55, 61-62. See also Valley Family Planning v. North Dakota, 661 F.2d 99, 100 (8th Cir.1981) (Title X funds 33% of budget). This money is provided through state payments such as Medicaid, fees paid by the clients (based on a sliding scale) and private funds. At oral argument, the Secretary stated that federal government funds account for about 50% of the money received by Title X clinics.

    Title X projects serve an estimated 14.5 million women. About a third of those who receive services are adolescents and approximately ninety percent of the women served had incomes below 150 percent of the poverty line. 131 Cong.Rec. S16860 (daily ed. Dec. 4, 1985). See also J.A. 40-41, 55, 61-62, 213. One of the most frequent reasons for an initial visit to a Title X family planning facility, particularly by adolescents, is for a pregnancy test. Program Guidelines for Project Grants and Family Planning Services, Public Health Service, 1981, J.A. at 71, 84.

  2. The New Regulations

    On February 2, 1988, the Secretary promulgated the superseding regulations that are at issue in this case. The relevant provisions are set forth in Appendix A. These regulations significantly alter the previous agency interpretation of Title X by prohibiting nondirective abortion counseling or referral and by enlarging the degree of financial and physical separation required between federally and nonfederally funded activities conducted by a Title X grantee.

    The new regulations change many aspects of the existing regulations. Our focus will be on a few particular changes. First, some key definitions have been changed. In Section 59.2 the term "family planning" is redefined to refer solely to "preconceptional" services. The result, if the regulations are implemented, would render Title X funds no longer available for pregnancy or post-partum services. "Title X program" and "Title X project" are also redefined to include not only grant funds but also "grant-related income or matching funds." 42 C.F.R. Sec. 59.2. By virtue of this change, the extensive prohibitions against counseling, referral and abortion-related activities in the regulations apply broadly to recipient generated income as well as to federal funds.

    As mentioned, the regulations reverse the preexisting policy of nondirective counseling. 42 C.F.R. Sec. 59.8. Specifically, they prohibit counseling or referral for abortion as a method of family planning and require that all Title X clients diagnosed as pregnant receive "a list of available providers that promote the welfare of mother and unborn child" as well as information "necessary to protect the health of the mother and unborn child." 42 C.F.R. Sec. 59.8(a). In an emergency, a Title X entity may refer a client to a provider of "emergency medical services." Id. The regulations also specifically prohibit a Title X entity from circumventing the abortion prohibitions by using the list of referrals "as an indirect means of encouraging or promoting abortion as a method of family planning." 42 C.F.R. Sec. 59.8(a)(3). Finally, although a Title X entity may provide information that is medically necessary to assess the relative risks and benefits of various contraceptive methods, that information may not include the counseling or promotion of abortion. 42 C.F.R. Sec. 59.8(a)(4).

    The new regulations also require that Title X entities be "physically and financially separate" from entities providing proscribed activities or information. 42 C.F.R. Sec. 59.9. The Title X entities must have "an objective integrity and independence" that reaches beyond separate bookkeeping to include separation of accounting records, facilities and personnel and even separate signs for the federally and nonfederally funded activities. Id.

    Finally, the regulations contain a list of prohibited activities including lobbying for pro-choice legislation, providing speakers to...

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