913 F.2d 1492 (10th Cir. 1990), 88-2251, Planned Parenthood Federation of America v. Sullivan

Docket Nº:88-2251.
Citation:913 F.2d 1492
Party Name: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-Appellees, v. Louis SULLIVAN, M.D., individually and in his capacity as Secretary of the United States Dep
Case Date:September 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1492

913 F.2d 1492 (10th Cir. 1990)

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-Appellees,

v.

Louis SULLIVAN, M.D., individually and in his capacity as

Secretary of the United States Department of

Health and Human Services, Defendant-Appellant.

No. 88-2251.

United States Court of Appeals, Tenth Circuit

September 6, 1990

Page 1493

Alfred Mollin, Atty., Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., Michael J. Norton, U.S. Atty., and John F. Cordes, Atty., Dept. of Justice, Washington, D.C.; of counsel: Joel Mangel, Deputy Chief Counsel, Public Health Service; and Carol Conrad, Atty., Office of the Gen. Counsel, Dept. of Health and Human Services, with him on the briefs), for defendant-appellant.

Roger K. Evans (Dara Klassel and Beth Otten, also of Planned Parenthood Federation of America, Inc., New York City, Edwin S. Kahn and James W. Hubbell of Kelly/Haglund/Garnsey and Kahn, Denver, Colo., with him on the brief), for plaintiffs-appellees.

Kent Masterson Brown, Lexington, Ky., Charles Onofrio, Denver, Colo., and Clarke D. Forsythe, Americans United for Life Legal Defense Fund, Chicago, Ill., filed an amici curiae brief on behalf of American Academy of Medical Ethics, Ass'n of American Physicians & Surgeons, American Ass'n of Pro Life Obstetricians & Gynecologists, American Ass'n of Pro-Life Pediatricians, National Doctors for Life, Christian Medical Society, Christian Medical Found., Alabama Physicians for Life, Physicians for Moral Responsibility, National Ass'n of Pro-Life Nurses, California Pro-Life Nurses Ass'n, Georgia Nurses for Life, Indiana Nurses Concerned for Life, Missouri Nurses for Life, New York State Nurses for Life, Inc., Pennsylvania Nurses for Life, Rhode Island Nurses for Life, Washington Pro-Life Nurses Ass'n, Southern Center for Law and Ethics, and Certain Fellows and Members of the American College of Obstetricians and Gynecologists and of the American Medical Ass'n in support of defendant-appellant.

Paul Lewis, Denver, Colo., James Bopp, Jr. and Richard E. Coleson of Brames, McCormick, Bopp & Abel, Terre Haute, Ind., filed an amici curiae brief on behalf of Senator Gordon J. Humphrey and Congressmen Thomas J. Tauke, Thomas A. Luken, Thomas J. Bliley, Dan Coats, Christopher

Page 1494

H. Smith, Henry J. Hyde, Alan B. Mollohan, and Vin Weber in support of defendant-appellant.

John H. Hall and Mary Sue Henifin of Debevoise & Plimpton, New York City, of counsel: Nadine Taub, Rutgers University School of Law, Newark, N.J., and Sarah E. Burns, Legal Director, NOW Legal Defense and Educ. Fund, New York City, filed an amici curiae brief on behalf of NOW Legal Defense and Educ. Fund, National Abortion Rights Action League, American Ass'n of University Women, Black Women's Agenda, Catholics for a Free Choice, Center for Population Options, Colorado Women's Bar Ass'n, National Abortion Federation, National Council of Jewish Women, National Emergency Civil Liberties Committee, National Organization for Women, National Women's Conference Committee, National Women's Health Network, National Women's Political Caucus, Public Citizen Health Research Group, United Church of Christ, Women's Equity Action League, Women's Law Project, Young Women's Christian Ass'n of Boulder County, Young Women's Christian Ass'n of Metropolitan Denver, and Young Women's Christian Ass'n of U.S.A. in support of plaintiffs-appellees.

Jack R. Bierig, David F. Graham, Lynn D. Fleisher and Richard D. Raskin, Sidley & Austin, Chicago, Ill., of counsel: Kirk B. Johnson and Edward B. Hirshfeld, American Medical Ass'n, Chicago, Ill., Ann E. Allen, American College of Obstetricians and Gynecologists, Washington, D.C., filed an amici curiae brief on behalf of the American Medical Ass'n, American College of Obstetricians and Gynecologists, and American Society of Human Genetics in support of plaintiffs-appellees.

Bruce S. Wolff, Charles S. Sims, Suzette Brooks and William S. Koenig of Proskauer, Rose, Goetz & Mendelsohn, New York City, filed an amici curiae brief on behalf of The American Public Health Ass'n, The Ass'n of State and Territorial Health Officers, The Ass'n of Schools for Public Health, The American College of Physicians, The American Medical Student Ass'n, The Ass'n of Reproductive Health Professionals, The California Coalition of Nurse Practitioners, The Colorado Academy of Family Physicians, The Colorado Dept. of Health, Colorado Physicians for Choice, Colorado/Wyoming Chapter of the American College of Nurse Midwives, The Intermountain Medical Society, The Maryland Dept. of Health and Mental Hygiene, The National Ass'n of Nurse Practitioners in Family Planning, The National Urban League, The Nurses Ass'n of the American College of Obstetricians and Gynecologists, The Ohio Dept. of Health, The South Dakota State Dept. of Health, The Wisconsin Nurse Practitioners in Reproductive Health, and Dr. Allan Rosenfield, Dean of the Columbia University School of Public Health in support of plaintiffs-appellees.

Cynthia P. Delaney, Leanne B. DeVos, Karen H. DuWaldt, Diana Terry Reindl, and Kathleen Yurchak, American Civil Liberties Union Found. of Colorado, Denver, Colo., filed an amicus curiae brief on behalf of American Civil Liberties Union in support of plaintiffs-appellees.

David M. Becker and Virginia A.S. Kling of Wilmer, Cutler & Pickering, Washington, D.C., filed an amici curiae brief on behalf of Representative Bill Green, Senators Barbara A. Mikulski, Lowell P. Weicker, Jr., Brock Adams, John H. Chafee, Alan Cranston, Howard M. Metzenbaum, Paul Simon, Robert T. Stafford, William S. Cohen, Daniel J. Evans, Bob Packwood, and Timothy E. Wirth, and Representatives Daniel K. Akaka, Les AuCoin, Julian C. Dixon, Vic Fazio, William H. Gray III, Steny H. Hoyer, William Lehman, Robert J. Mrazek, John Edward Porter, Martin Olav Sabo, Henry A. Waxman, Jim Bates, Rick Boucher, Cardiss Collins, Mickey Leland, James H. Scheuer, Ron Wyden, Gary L. Ackerman, Chester G. Atkins, Anthony C. Beilenson, Howard L. Berman, Sherwood L. Boehlert, Don Bonker, Barbara Boxer, George E. Brown, Jr., Albert G. Bustamante, Benjamin L. Cardin, Thomas R. Carper, George W. Crockett, Jr., Peter A. DeFazio, Ronald V. Dellums, Mervyn M. Dymally, Don Edwards, Lane Evans, Dante B. Fascell, Walter E. Fauntroy, Barney Frank, Bill Frenzel, Robert Garcia, Sam Gejdenson, Benjamin A. Gilman, Charles A.

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Hayes, James M. Jeffords, Nancy L. Johnson, Robert W. Kastenmeier, Joseph P. Kennedy II, Peter H. Kostmayer, Richard H. Lehman, Sander M. Levin, Mel Levine, John Lewis, Mike Lowry, Matthew G. Martinez, Robert T. Matsui, George Miller, John R. Miller, Jim Moody, Constance A. Morella, Bruce A. Morrison, Stephen L. Neal, Nancy Pelosi, Claude Pepper, Charles B. Rangel, Marge Roukema, Claudine Schneider, Patricia Schroeder, Christopher Shays, David E. Skaggs, Louise M. Slaughter, Lawrence J. Smith, Olympia J. Snowe, Stephen J. Solarz, Pete Stark, Gerry E. Studds, Edolphus Towns, Morris K. Udall, Ted Weiss, Alan Wheat, and Howard Wolpe in support of plaintiffs-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

This appeal arises out of an action brought by organizations and physicians receiving funds under Title X of the Public Health Service Act, 42 U.S.C. Secs. 300 to 300a-6, who challenge, on behalf of themselves and their patients, the 1988 amendments to the regulations under which Title X funds are administered. See 53 Fed.Reg. 2922, 2943-46 (1988) codified at 42 C.F.R. Secs. 59.2, 59.5, 59.7-59.10. The new regulations prohibit Title X participants from advising women about abortion as a medical option if birth control devices should fail or if they are already pregnant, and the regulations require physical, financial, and personnel separation of Title X supported facilities from any others that counsel about or perform abortions.

The district court entered a preliminary and then a permanent injunction against implementation of the new regulations. Planned Parenthood Fed'n of Am. v. Bowen, 680 F.Supp. 1465 (preliminary injunction) and 687 F.Supp. 540 (permanent injunction) (D.Colo.1988). The district court ruled that the regulations violate the intent of Congress as expressed in the statute, informed by its contemporaneous and subsequent legislative history. 680 F.Supp. at 1468-73; 687 F.Supp. at 542. It also held that the regulations violate the constitutional rights of the women patients and their advising physicians. 680 F.Supp. at 1473-78; 687 F.Supp. at 542-44. On appeal the Secretary of Health and Human Services challenges all of these rulings.

Two other federal courts of appeals have faced the precise issues before us. A divided panel of the Second Circuit upheld the 1988 regulations against both statutory and constitutional challenges, New York v. Sullivan, 889 F.2d 401 (2d Cir.1989), cert. granted, --- U.S. ----, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990). The First Circuit, en banc with one dissent, struck down the new regulations in their entirety, principally on constitutional grounds. Massachusetts v. Secretary of Health & Human Services, 899 F.2d 53 (1st Cir.1990) (en banc). That court concluded that of the 1988 amendments, only 42 C.F.R. Sec. 59.9 was invalid as inconsistent with Congress' intent as expressed in Title X or on other nonconstitutional grounds. But the court held that all of the amendments violated the constitutional rights of women to make informed decisions concerning abortion, and violated the consulting physicians' First Amendment rights to properly advise...

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