Planned Parenthood Federation of America, Inc. v. Agency for Intern. Development, 1524

• Citation: 915 F.2d 59
• Decision Date: 19 September 1990
• Docket Number: D,No. 1524,1524
• Parties: PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; Planned Parenthood Center of El Paso; Stewart R. Mott; Stephen L. Isaacs; Sosamma Lindsay, on behalf of herself and others similarly situated; and Jane Doe, on behalf of herself and others similarly situated, Plaintiffs-Appellants, v. AGENCY FOR INTERNATIONAL DEVELOPMENT and M. Peter McPherson, as Administrator of the Agency for International Development, Defendants-Appellees. ocket 90-7274.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 59

915 F.2d 59

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; Planned Parenthood Center of El Paso; Stewart R. Mott; Stephen L Isaacs; Sosamma Lindsay, on behalf of herself and others similarly situated; and Jane Doe, on behalf of herself and others similarly situated, Plaintiffs-Appellants, v. AGENCY FOR INTERNATIONAL DEVELOPMENT and M. Peter McPherson as Administrator of the Agency for International Development, Defendants-Appellees.

No. 1524, Docket 90-7274.

United States Court of Appeals Second Circuit.

Argued June 7, 1990.

Decided Sept. 19, 1990.

Roger K. Evans, New York City (Eve W. Paul, Dara Klassel, Planned Parenthood Federation of America, New York City, Walter B. Slocombe, Albert G. Lauber, Jr., Caplin & Drysdale, Chartered, Washington, D.C., and Harriet F. Pilpel, New York City, of counsel), for plaintiffs-appellants.

Stacey J. Moritz, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for S.D.N.Y. and Edward T. Ferguson, III, Asst. U.S. Atty., New York City, of counsel), for defendants-appellees.

James F. Fitzpatrick, New York City (Margaret T. Burns and Gwyn F. Murray, Arnold & Porter, Washington, D.C., of counsel), filed a brief for amici curiae Ass'n for Voluntary Surgical Contraception, Family Health Intern., Alan Guttmacher Institute, Intern. Projects Assistance Services, Intern. Women's Health Coalition, Pathfinder Fund, Population Council and Population Crisis Committee.

Norman Siegel, New York City (Arthur Eisenberg and Catherine Weiss, New York Civ. Liberties Union, New York City, of counsel), Rachael Pine, New York City (Ellen K. Goetz, American Civ. Liberties Union, New York City, of counsel), filed a brief for amici curiae American Civ. Liberties Union, New York Civ. Liberties Union, Fund for Free Expression, Professional Rights Committee of American Soc. of Journalists and Authors, Inc. and P.E.N. American Center.

Before VAN GRAAFEILAND, MINER and ALTIMARI, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants Planned Parenthood Federation of America, Inc. ("Planned Parenthood"), Planned Parenthood Center of El Paso, Stewart R. Mott, Stephen L. Isaacs, Sosamma Lindsay and Jane Doe appeal from a judgment entered in the United States District Court for the Southern District of New York (Walker, C.J., sitting by designation) dismissing the complaint in this action for failure to state a claim upon which relief may be granted. See Planned Parenthood Fed'n of Am., Inc. v. Agency for Int'l Dev., No. 87 Civ. 0248 (JMW) (S.D.N.Y. Mar. 7, 1990) (1990 WL 26306; 1990 U.S. Dist. LEXIS 2430). Plaintiffs-appellants contend that the implementation of an executive branch policy by the Agency for International Development ("AID") restricting federal assistance to foreign nongovernmental family planning organizations violates their constitutional rights to speech, association and privacy. The district court, considering the claims on remand from our decision in Planned Parenthood Fed'n of Am., Inc. v Agency for Int'l Dev., 838 F.2d 649 (2d Cir.1988) (Planned Parenthood I ), upheld AID's conditions on funding for foreign nongovernmental organizations as the least restrictive means of implementing a nonjusticiable foreign policy decision. For the reasons that follow, we affirm.

BACKGROUND

Familiarity with our decision in Planned Parenthood I is presumed, and we restate only those facts relevant to this appeal.

The Foreign Assistance Act of 1961, 22 U.S.C. Secs. 2151-2429a (1988), authorizes the President "to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning." 22 U.S.C. Sec. 2151b(b). The President's policy concerning such assistance was announced in an August 1984 statement at a United Nations conference on population planning in Mexico City. The statement provides in pertinent part:

[T]he United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion. Moreover, the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.

Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session) Mexico, D.F., August 6-13, 1984, at 4-5 (hereafter the "Mexico City Statement"). Thus, the United States policy is to continue to fund foreign governments through segregated accounts that may not be used for abortion-related activity, even if the foreign government engages in such activity with its own funds, but to "withhold federal assistance from foreign nongovernmental organizations ("NGOs") that perform or actively promote abortions, even if those activities are financed with non-federal funds." Planned Parenthood I, 838 F.2d at 651.

Administration of the voluntary population planning program has been delegated by the President to the Director of the United States International Development and Cooperation Agency, Exec. Order No. 12,163, 44 Fed.Reg. 56,673 (1979), who has further delegated that authority to the Administrator of the Agency for International Development, IDCA Delegation No. 1, 44 Fed.Reg. 57,521 (1979), as amended, 45 Fed.Reg. 74,090 (1980). See Planned Parenthood I, 838 F.2d at 651. AID disburses federal family planning assistance through cooperative agreements with domestic NGOs such as Planned Parenthood. Planned Parenthood and other domestic NGOs, in turn, subgrant AID funds to foreign NGOs for family planning projects in foreign countries.

In response to the Mexico City Statement, AID drafted a "Standard Provision to be Used in Grants and Cooperative Agreements with U.S. Nongovernmental Organizations" (the "Standard Clause") containing eligibility provisions for family planning grants and cooperative agreements. Every foreign NGO receiving assistance for family planning from AID must "certif[y] in writing that it does not perform or actively promote abortion as a method of family planning in AID-recipient countries and does not provide financial support to any other foreign nongovernmental organization that conducts such activities." Standard Clause p (d)(3)(i). The phrase "actively promote abortion" is defined in the Standard Clause to include "providing advice and information regarding the benefits and availability of abortion," "encouraging women to consider abortion," and "[l]obbying a foreign government to legalize or make available abortion." Id. p (d)(10)(iii). These restrictions on abortion-related activities apply to the entire organization, not just to the project or division of the foreign NGO receiving AID funds. Id. p (d)(11).

AID has informed Planned Parenthood that, upon expiration of a temporary agreement on October 31, 1990, it will not renew the former cooperative agreement unless Planned Parenthood agrees to enforce the Standard Clause when subgranting funds to foreign NGOs. However, no restriction is placed on the use of non-AID funds by Planned Parenthood in the United States or abroad; Planned Parenthood remains free to expend its own funds for abortion-related activities while participating as a conduit for AID funds to foreign NGOs. See id. p (c). A foreign NGO also may employ or collaborate with other individuals and organizations on all family planning projects except abortion-related activities while, at the same time, its employees and collaborators independently engage in abortion-related activities, provided that the NGO does not endorse or provide financial support for the action and takes reasonable steps to ensure that the employee or collaborator does not improperly represent that they are acting on behalf of the NGO. Id. p (d)(10)(iii)(C).

Plaintiffs-appellants allege that the Standard Clause violates their constitutional rights to speech, association and privacy. ¹ Planned Parenthood contends that the Standard Clause imposes unconstitutional conditions on an important government benefit by requiring it to enforce restrictions on speech in order to participate as a conduit for AID funds to foreign NGOs. Together with plaintiffs-appellants Planned Parenthood Center of El Paso, Stewart R. Mott and Stephen L. Isaacs, Planned Parenthood also contends that the Standard Clause interferes with free speech and association by providing a financial incentive for foreign NGOs to abstain from participating with them in abortion-related activities.

Plaintiff-appellant Sosamma Lindsay, an American citizen and Dean of a nursing college in Kenya, sues individually and as representative of a class of American citizens employed by foreign NGOs subject to the terms and conditions of the Standard Clause. She contends that the foreign university for which she works would be required by the Standard Clause to prevent her from teaching a curriculum relating to the availability and benefits of abortion and that her first amendment right to speak out on family planning issues would be restricted accordingly.

Plaintiff-appellant Jane Doe, an American citizen who lives in Nigeria, sues individually and as representative of a class of women who rely for family planning advice on foreign NGOs subject to the terms and conditions of the Standard Clause. She contends that the Standard Clause prevents her and others similarly situated from receiving "full and accurate medical information and advice about family planning and abortion" from foreign NGOs that receive funding from AID.

The district court initially dismissed the constitutional challenges to the Standard Clause as nonjusticiable because they were "targeted not merely at a method or means of implementation of a foreign policy, but at the...