Civic Awareness of America Ltd. v. Richardson

• Decision Date: 24 July 1972
• Docket Number: Civ. A. No. 71-C-344.
• Citation: 343 F. Supp. 1358
• Parties: CIVIC AWARENESS OF AMERICA LTD., a non-profit Wisconsin corporation, et al., Plaintiffs, v. Elliot L. RICHARDSON, Secretary of the Department of Health, Education and Welfare, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

343 F. Supp. 1358

CIVIC AWARENESS OF AMERICA LTD., a non-profit Wisconsin corporation, et al., Plaintiffs, v. Elliot L. RICHARDSON, Secretary of the Department of Health, Education and Welfare, et al., Defendants.

Civ. A. No. 71-C-344.

United States District Court, E. D. Wisconsin.

July 24, 1972.

Charles J. Kersten, and Roman H. Papka, Milwaukee, Wis., for plaintiffs.

Steven C. Underwood, Asst. U. S. Atty., Milwaukee, Wis., for defendant Elliot L. Richardson.

Jackson M. Bruce, Jr., Larry J. Jost and Michael J. Spector, Milwaukee, Wis., for defendants Donald S. Buzard, Planned Parenthood Association of Milwaukee and Planned Parenthood-World Population.

REYNOLDS, District Judge:

This is a suit to curtail the use of federal funds for family planning and birth control. Plaintiffs are a nonprofit corporation and individuals who oppose artificial contraception, cloning, vasectomy, and abortion. Defendants Planned Parenthood Association of Milwaukee and Planned Parenthood-World Population (hereinafter "Planned Parenthood") are corporations engaged in family planning and birth control. Their activities include, among other things, providing on a volunteer basis vasectomies and abortion counselling. Pursuant to § 508(a) (3) of the Social Security Act, funds have been granted to Planned Parenthood by defendant Elliot L. Richardson. The complaint also alleges that in the future the Department of Health, Education and Welfare may grant funds to Planned Parenthood pursuant to the Family Planning Services and Population Research Act of 1970.

Plaintiffs seek declaratory and interlocutory injunctive relief in order to prevent grants of federal funds for artificial contraception, vasectomies, and abortions on the grounds that such funding is without statutory authority and in any case contravenes the Constitution. Federal question jurisdiction is asserted. Because the complaint challenges federal statutes as being unconstitutional and seeks injunctive relief, the plaintiffs have moved to convene a three-judge district court pursuant to Title 28 U.S.C. § 2282. Defendants oppose this motion on the ground that the constitutional challenge is insubstantial. The matter having been briefed and argued before me, I find for the defendants.

Section 508(a) of the Social Security Act (Title 42 U.S.C. § 708) provides in part as follows:

"(a) In order to help reduce the incidence of mental retardation and other handicapping conditions caused by complications associated with child-bearing and to help reduce infant and maternal mortality, * * * funds may be granted for

* * * * * *

"(3) family planning services,

* * *. Acceptance of family planning services provided under a project under this section * * * shall be voluntary on the part of the individual to whom such services are offered and shall not be a prerequisite to the eligibility for or the receipt of any service under such project."

The Family Planning Services and Population Research Act of 1970 (Pub. L. 91-572) (Title 42 U.S.C. § 300) reads in part as follows:

"Sec. 2 It is the purpose of this Act —

"(1) to assist in making comprehensive voluntary family planning services readily available to all persons desiring such services;

* * * * * *

"Sec. 1001(a) The Secretary is authorized 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.

* * * * * *

"Sec. 1007 The acceptance by any individual of family planning services * * * shall be voluntary * * *."

Plaintiffs contend that grants to Planned Parenthood under these statutes violate the First Amendment's prohibition that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." In light of prior decisions of the Supreme Court this contention is insubstantial and without merit.

Plaintiffs do not contend that Planned Parenthood themselves are private religious organizations, teach religion, or even that they are controlled by such a body. Thus, this case differs from those involving grants to parochial schools and students, see, e. g., Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), or grants to secular institutions operated by religious groups, see, e. g., Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899) (hospital run by Roman Catholics). Rather, plaintiffs characterize birth control as a tenet of a religion, which by their complaint they allege to exist, called "secular humanism," and from this they argue that government support of birth control is constitutionally inseparable from government support of the religion "secular humanism." The establishment clause "does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U.S. 333 10 S.Ct. 299, 33 L.Ed. 637; Reynolds v. United States, supra 98 U.S. 145, 25 L.Ed. 244. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue." McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113-1114, 6 L.Ed.2d 393 (1961). In McGowan the court...