Com. of Mass. v. Bowen

• Decision Date: 03 March 1988
• Docket Number: Civ. A. No. 88-0253-S.
• Citation: 679 F. Supp. 137
• Court: U.S. District Court — District of Massachusetts
• Parties: COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, v. Otis R. BOWEN, Secretary, Health and Human Services, Defendant.

679 F. Supp. 137

COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, v. Otis R. BOWEN, Secretary, Health and Human Services, Defendant.

Civ. A. No. 88-0253-S.

United States District Court, D. Massachusetts.

March 3, 1988.

COPYRIGHT MATERIAL OMITTED

Paul Glickman, Jamin B. Raskin, Asst. Attys. Gen., Boston, Mass., James L. Feldesman, Susan D. Lauscher, Klores, Feldesman & Tucker, Washington, D.C., for plaintiffs.

Robert J. Cynkar, Thomas Millet, Deputy Asst. Attys. Gen., Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM AND ORDER FOR FINAL DECREE

SKINNER, District Judge.

Plaintiffs in this action seek to enjoin the application and enforcement of regulations promulgated by the defendant purporting to carry out the purposes of Section 1008 of Title X of the Public Health Services Act. 42 U.S.C. § 300a-6 (1982). The defendant moved to consolidate the hearing on plaintiffs' motion for a preliminary injunction with the hearing on the merits pursuant to Fed.R.Civ.P. 65(a)(2). At oral argument I denied the motion on the representation of the plaintiffs that there were unresolved questions of fact raised by their several affidavits. Upon examination of these affidavits, however, I conclude that the issues of fact they raise relate to predicted adverse consequences of the regulations, such as their potential for conflict with the medical ethics of some physicians, and to the likelihood of immediate irreparable harm. Plaintiffs argue that Congress could not have intended the predicted consequences and that the regulations therefore violate congressional intent. If unintended consequences were enough to invalidate government action, I doubt that much would survive. Such policy considerations are in any case for Congress, not the courts. Furthermore, immediate irreparable injury is not an issue unless preliminary relief is to be granted. Since the controlling legal issues have been fully briefed and argued, there is no reason to delay a final decision. My order denying the motion to consolidate is VACATED and the motion to consolidate is ALLOWED. A final decree will issue.

A. The Controversy

On February 2, 1988, the Department of Health and Human Services ("HHS") amended the regulations governing the use of federal funds for family planning services. Its purported goal was to assure compliance with section 1008 of Title X:

None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

42 U.S.C. § 300a-6 (1982). Historically, this section had been interpreted by HHS (and the Department of Health, Education and Welfare, its predecessor) to prohibit the use of federal funds in the provision of abortions, or in any activity that had the immediate effect of "promoting or encouraging" abortion. The new regulations, which are scheduled to go into effect in two parts, on March 3 and April 4, 1988, significantly expand the scope of prohibited activity.

The new regulations define family planning to exclude all pregnancy care (including obstetric and prenatal care). They provide that a project may not receive federal funds unless it assures compliance with the following rules:

(1) A project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning. 42 C.F.R. § 59.8(a)(1) (1988).

(2) Once a client is diagnosed as pregnant, she must be provided with a list of providers that promote the welfare of the mother and unborn child.¹ She must also be provided with information to protect the health of the mother and unborn child until the referral appointment is kept. 42 C.F.R. § 59.8(a)(2) (1988).

(3) A project may not use prenatal, social service or emergency medical or other referrals as an indirect means of encouraging or promoting abortion as a method of family planning. 42 C.F.R. § 59.8(a)(3) (1988).

(4) The provision of contraceptive information may not include counseling with respect to abortion as a method of family planning, although it may include information which is medically necessary to assess the risks and benefits of different methods of contraception. 42 C.F.R. § 59.8(a)(4) (1988).

(5) A project may not use Title X funds to promote or advocate abortion as a method of family planning. 42 C.F.R. § 59.10(a) (1988). Prohibited activities include:

a. Lobbying for legislation to increase the availability of abortion as a method of family planning;

b. Providing speakers to promote the use of abortion as a method of family planning;

c. Paying dues to any group that as a significant part of its activities advocates abortion as a method of family planning;

d. Using legal action to make abortion more readily available as a method of family planning;

e. Developing or disseminating any information which advocates abortion as a method of family planning.

(6) A Title X project must be organized so that it is physically and financially separate from all prohibited activities. The Secretary of HHS will determine whether such objective integrity and independence exist based on an individual review of a number of factors and circumstances. 42 C.F.R. § 59.9 (1988).

The regulations also define "Title X project funds," for the first time, to include "all funds allocated to the Title X program, including, but not limited to grant funds, grant-related income or matching funds." 42 C.F.R. § 59.2 (1988). A Title X project has always been required to supplement its federal grant with 10% matching funds. In practice most Title X agencies also charge fees for services to those clients who have the ability to pay, in general generating another 10% of their budget. Therefore, when the regulations limit the use of "Title X project funds," they in fact significantly restrict a project's use of both federal, and non-federal, money.

Plaintiffs allege that the new regulations conflict with Title X and violate the First and Fifth Amendments of the United States Constitution. The only existing precedent consists of an as yet unpublished opinion of Judge Zita Weinshienk on a motion for preliminary injunction in Planned Parenthood Federation of America, et al. v. Bowen, 680 F.Supp. 1465 (D.Colo.1988). Judge Weinshienk has ruled that the regulations violate the intent of Congress and the constitutional rights of the plaintiffs and has entered a preliminary injunction prohibiting the defendant from enforcing the new regulations or conditioning Title X grants upon compliance with them.

B. Conflict with the Statute

1. General Considerations

The defendant has broad authority to promulgate regulations under Title X. 42 U.S.C. § 300a-4(a) (1982). The regulations must be consistent with and must further the purposes of the statute. The particular section of the statute involved in this case is ambiguous. It is not clear whether the prohibition in section 1008 of the use of appropriated funds "in programs where abortion is a method of family planning" is limited to programs which offer or promote abortions, as plaintiffs say, or whether it provides "a wall of separation" between Title X programs and all abortion related activity, as the defendant says. "The question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 21 L.Ed.2d 694 (1984).

In pursuit of their favored constructions of the statute, the parties have tried to run to ground that hardy chimera, congressional intent. In my view, congressional intent must be considered with respect to specific issues raised by the new regulations.

a. Counseling and Referral 42 C.F.R. §§ 59.8(a)

In support of their respective positions about the validity of the counseling and referral restrictions, the parties cite various pronouncements by individual members of Congress. Plaintiffs cite a 1988 committee report accompanying a Continuing Resolution which encouraged continuation of the prior regulations without change. A group of senators and congressmen filed an amici brief which indicates their own support and refers to the support of many other congressmen for the regulations as promulgated. These expressions of various individuals are of little assistance in evaluating the intent of Congress as a collective body. Consumer Products Safety Commission v. G.T.E. Sylvania, 447 U.S. 102, 118, 100 S.Ct. 2051, 2061, 64 L.Ed.2d 766 (1980); Chrysler Corporation v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979). Rep. Dingall's statement in 116 Cong.Rec. 37,375 (1970) is countered by his subsequent letter to the defendant dated October 14, 1987.

Plaintiffs rely on congressional acquiescence to prior longstanding administrative interpretation of the statute by the defendant and his predecessors. In a series of memoranda and opinions from 1970 to the promulgation of these regulations, the Department of Health and Human Services (and the Department of Health, Education and Welfare) consistently interpreted the statute to forbid Title X recipients from conducting activities which had the direct effect of promoting or encouraging abortion, but to allow the clinics to furnish information concerning abortion services. In 1981, departmental guidelines were issued which mandated non-directive counseling on options for pregnant women, including abortion, when a client requested information. Referral for the purpose of abortion was permitted. Memorandum from Joel N. Mangel, Office of General Counsel, HEW, to Louis M. Hellman, Deputy Assistant Secretary for Population Affairs (April 20, 1971); Memorandum of Carol C. Conrad, Office of General Counsel, HEW, to Elsie Sullivan, Office for Family Planning (April 11, 1978); Bureau of Community Health Services, Department of Health and Human Services, Program Guidelines for Project Grants for Family Planning Services (1981).

There is no doubt that...