Center for Reproductive Law and Policy v. Bush, Docket No. 01-6168.
| Decision Date | 13 September 2002 |
| Docket Number | Docket No. 01-6168. |
| Citation | 304 F.3d 183 |
| Parties | The CENTER FOR REPRODUCTIVE LAW AND POLICY, Janet Benshoof, Anika Rahman, Katherine Hall Martinez, Julia Ernst, Laura Katzive, Melissa Upreti, Christina Zampas, Plaintiffs-Appellants, v. George W. BUSH, in his official capacity as President of the United States, Colin Powell, in his official capacity as Secretary of State, Andrew Natsios, in his official capacity as Administrator of the United States Agency for International Development, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Simon Heller, The Center for Reproductive Law & Policy, New York, N.Y. (Janet Benshoof, on the brief), for Plaintiffs-Appellants.
Gregory G. Katsas, Deputy Assistant Attorney General, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General; Robert M. Loeb and Sharon Swingle, Attorneys, Department of Justice Civil Division; James B. Comey, United States Attorney; Gideon A. Schor, Chief Appellate Attorney, on the brief), for Defendants-Appellees.
Before: McLAUGHLIN, LEVAL, and SOTOMAYOR, Circuit Judges.
This suit was brought by a domestic organization that advocates reproductive rights and by attorneys employed by the organization. Plaintiffs challenge the so-called "Mexico City Policy," pursuant to which the United States government requires foreign organizations, as a condition of receiving government funds, to agree neither to perform abortions nor to promote abortion generally. Plaintiffs maintain that these restrictions violate their First Amendment rights to freedom of speech and association. The district court dismissed the case for lack of subject matter jurisdiction, finding that plaintiffs lack standing under Article III of the Constitution. The district court was following the general rule, set forth by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), that a federal court may not assume it has jurisdiction over a matter and proceed directly to the merits. The instant case is exceptional, however. Some twelve years ago we entertained and rejected, on the merits, the same constitutional challenge to the provision at issue here. We therefore find that this case falls within an exception recognized by the Supreme Court in Steel Co., and we dismiss the First Amendment claim on the merits without deciding the standing question. Plaintiffs also bring claims under the Due Process Clause and the equal protection component of the Fifth Amendment. We dismiss the due process claim under the doctrine of prudential standing, as plaintiffs' alleged harm does not fall within the zone of interests protected by the Due Process Clause. We dismiss the equal protection claim as without merit; while plaintiffs do have standing for this claim under the concept we have dubbed "competitive advocate standing," the classification they challenge does not constitute an equal protection violation.
We accept the allegations in the complaint as true on this motion to dismiss. The facts of this case, which are set forth in greater detail by the district court, see Center for Reproductive Law & Policy v. Bush, No. 01 CIV. 4986, 2001 WL 868007 (S.D.N.Y. July 31, 2001) ("CRLP"), are as follows. Plaintiff The Center for Reproductive Law & Policy ("CRLP") is a nonprofit advocacy organization devoted to the promotion of reproductive rights. Individual plaintiffs Janet Benshoof, Anika Rahman, Katherine Hall Martinez, Julia Ernst, Laura Katzive, Melissa Upreti and Christina Zampas are CRLP staff attorneys engaged in the organization's global mission of reproductive law reform. Defendant George W. Bush is the President of the United States. Defendant Colin Powell is the U.S. Secretary of State and is thus responsible for "ensuring program and policy coordination among agencies of the United States Government in carrying out the policies set forth in the Foreign Assistance Act...." 22 U.S.C. § 6593(b)(2). Defendant Andrew Natsios is the Administrator of the United States Agency for International Development ("USAID"). At issue in this case is the so-called "Mexico City Policy"1 of the United States government, whereby foreign non-governmental organizations ("NGOs") receiving U.S. government funds must agree to a provision called the "Standard Clause," which prohibits the organizations from engaging in activities that promote abortion (also referred to as the "challenged restrictions").
The Foreign Assistance Act of 1961 ("FAA") authorizes the President "to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning." 22 U.S.C. § 2151b(b). The President's authority to allocate FAA funding has been delegated to the Secretary of State and, in turn, to the Administrator of USAID. See Exec. Order No. 13,118, 64 Fed.Reg. 16,595 (Mar. 31, 1999); State Department Delegation of Authority No. 145 1, 45 Fed.Reg. 51,974 (Aug. 5 1980); International Development Cooperation Agency Delegation of Authority No. 7, 45 Fed.Reg. 52,470 (Aug. 7, 1980). In 1973, Congress enacted the Helms Amendment, which prohibits the use of foreign assistance funds to pay for, among other things, "the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions." 22 U.S.C. § 2151b(f)(1). This restriction applies only to the use of U.S. government funds; foreign NGOs receiving assistance may still promote abortion with non-U.S. government funds without violating the terms of the statute. The executive branch, however, has attached additional conditions to the granting of foreign assistance funds, as it is authorized to do by the FAA. See 22 U.S.C. § 2151b(b). These additional conditions are the subject of this suit.
The challenged restrictions originated in August 1984, when President Ronald Reagan announced the Mexico City Policy ("the Policy"). The Policy expressed the government's disapproval of abortion as an element of family planning programs and set forth various ways in which the government would prohibit its funds from being used to support abortion overseas. Among these, it was announced that "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." CRLP, 2001 WL 868007, at *4 (citations omitted).
Pursuant to the Mexico City Policy, USAID incorporated the "Standard Clause" into its family planning assistance agreements and contracts. The Standard Clause provides that in order to be eligible for USAID funding, a foreign NGO must certify in writing that it "will not, while receiving assistance under the grant, perform or actively promote abortion as a method of family planning in AID-recipient countries or provide financial support to other foreign nongovernmental organizations that conduct such activities." Id. at *5 (quotation marks omitted). The restrictions established in the Standard Clause extend to all activities of recipient NGOs, not merely to projects funded by USAID. Thus, in order to receive U.S. government funds, a foreign NGO may not engage in any activities that promote abortion. These restrictions do not apply to domestic NGOs such as plaintiff CRLP.
The Mexico City Policy was rescinded by President Bill Clinton in January 1993, but was reinstated by President George W. Bush in March 2001. President Bush issued an official memorandum that restored the abortion-related restrictions discussed above, including the Standard Clause. See Memorandum, Restoration of the Mexico City Policy, 66 Fed.Reg. 17,303, 17,309 (Mar. 28, 2001) ("Restoration Memorandum"). Accordingly, as a condition of receiving U.S. government funds, foreign NGOs again are required to agree not to perform or actively promote abortion as a method of family planning.2
Plaintiffs bring this suit for injunctive and declaratory relief. Plaintiffs' primary claim, and the one with which the district court appears exclusively to have concerned itself, is based on the First Amendment. The thrust of this claim is that, as a result of the challenged restrictions, foreign NGOs are chilled from interacting and communicating with domestic abortion rights groups such as plaintiff CRLP, thus depriving plaintiffs of their rights to freedom of speech and association in carrying out the mission of the organization. Plaintiffs also allege that the restrictions violate the Equal Protection Clause of the Fifth Amendment by preventing plaintiffs from competing on "equal footing" with domestic anti-abortion groups, and that they violate the Due Process Clause by failing to give clear notice of what speech and activities they prohibit and by encouraging arbitrary and discriminatory enforcement. Finally, plaintiffs attempt to bring a claim under customary international law, the substance of which appears to be identical to their First Amendment claim.
The district court dismissed the action in its entirety on the ground that plaintiffs lack standing under Article III of the Constitution. The court first noted that because the challenged restrictions apply only to foreign NGOs, not to domestic organizations such as CRLP, the Mexico City Policy does not affect plaintiffs directly. CRLP, 2001 WL 868007, at *7. The court then applied the three-pronged standing test set out by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and concluded that plaintiffs had failed to demonstrate that (1) concrete injury in fact, (2) a causal connection between the alleged injury and the government's conduct, and (3) that the alleged injury is sufficiently redressable by a favorable decision. CRLP, 2001 WL 868007, at *8-*12.
Our review is de novo. See Connecticut v. Physicians...
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