Gay Men's Health Crisis v. Sullivan

• Decision Date: 14 December 1989
• Docket Number: No. 88 Civ. 7482 (SWK).,88 Civ. 7482 (SWK).
• Citation: 733 F. Supp. 619
• Parties: GAY MEN'S HEALTH CRISIS, Hetrick Martin Institute, Horizons Community Services, San Antonio Tavern Guild Aids Foundation, The Fund for Human Dignity, and The State of New York and the New York State Department of Health, Plaintiffs, v. Dr. Louis SULLIVAN or his Successor, Secretary of Health and Human Services; and James O. Mason or his Successor, Director of the U.S. Centers for Disease Control, Defendants.
• Court: U.S. District Court — Southern District of New York

733 F. Supp. 619

GAY MEN'S HEALTH CRISIS, Hetrick Martin Institute, Horizons Community Services, San Antonio Tavern Guild Aids Foundation, The Fund for Human Dignity, and The State of New York and the New York State Department of Health, Plaintiffs, v. Dr. Louis SULLIVAN or his Successor, Secretary of Health and Human Services; and James O. Mason or his Successor, Director of the U.S. Centers for Disease Control, Defendants.

No. 88 Civ. 7482 (SWK).

United States District Court, S.D. New York.

December 14, 1989.

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American Civil Liberties Union Foundation by Nan D. Hunter, Judith Levin, William B. Rubenstein, Center for Constitutional Rights by David Cole, Robert Abrams, Atty. Gen. of the State of N.Y. by Debra Marcus, Florence Wiener, Judith Kramer, New York City, for plaintiffs.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. by Steven C. Bennett, New York City, for defendants.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

This action was brought by several organizational and governmental plaintiffs involved in the education of homosexual men and other persons about Acquired Immuno-deficiency Syndrome ("AIDS"). Plaintiffs, seeking declaratory and injunctive relief, challenge the constitutionality of statutory and agency restrictions on federally-funded AIDS education materials and activities. Defendants have moved for dismissal of the complaint pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56, and for stay of discovery. Plaintiffs have cross-moved for partial summary judgment.

BACKGROUND

These facts are adopted in part from defendants' and plaintiffs' statements of facts provided pursuant to local rule 3(g).¹

AIDS is the final stage of infection with the human immunodeficiency virus ("HIV"), the virus which causes AIDS. Plaintiff's 3(g) statement, ¶ 1. The virus is transmitted by introduction into the bloodstream which may occur during sexual activity or intravenous drug use. Id. Persons who have AIDS are vulnerable to opportunistic diseases including pneumocystic carinii pneumonia, a rare form of pneumonia, and Kaposi's sarcoma, a form of cancer. Fauci, NIH Conference—The Acquired Immunodeficiency Syndrome: An Update, 102 Annals of Internal Med. 800, 802 (1985) (cited in Weiss, AIDS: Balancing the Physicians' Duty to Warn and Confidentiality Concerns, 38 Emory L.J. 279 n. 12 (1989)). Other symptoms include fever, fatigue, loss of weight and appetite, swollen glands, night sweats, and diarrhea. Surgeon General's Report on AIDS, 102 Public Health Reports 11 (Supp.1987) (cited in Weiss, supra, n. 13.)

AIDS was first reported as a new disease by the Centers for Disease Control in the summer of 1981. Weiss, supra, at 284; see also, Defendant's First Memorandum of Law in Support of Motion to Dismiss, or, in the Alternative, for Summary Judgment, and for Stay of Discovery ("Def.Mem. I") at 2. As of mid-January, 1989, more than 84,000 cases of AIDS had been reported in the United States, more than 20,000 of which were in the State of New York. Public health officials estimate that between one and two million Americans are infected with HIV. Plaintiff's 3(g) statement, ¶ 2. Currently, 61.7% of American adults with AIDS are homosexual or bisexual men. CDC, AIDS Weekly Surveillance Report (January 16, 1989) at 3 (cited in Plaintiff's First Amended Complaint, ¶ 16). The disease is regarded as "invariably fatal." Weiss, supra, 38 Emory L.J. at 280 (cite omitted).

The Parties

Organizational plaintiffs Gay Men's Health Crisis ("GMHC"), Hetrick Martin Institute for the Protection of Gay and Lesbian Youth ("Hetrick Martin"), Horizons Community Services ("Horizons"), San Antonio Tavern Guild AIDS Foundation ("Tavern Guild"), and the Fund for Human Dignity ("FHD") are non-profit organizations which conduct AIDS education programs with a particular focus on the gay male population. These organizations have sought or allegedly would seek funding from defendant Centers for Disease Control ("CDC"), an agency of the United States government, for their AIDS education activities. Plaintiffs' First Amended Complaint, ¶¶ 5-9. State plaintiff New York State is suing parens patriae. New York State and its agency, the New York State Department of Health ("DOH"), receive funding from CDC for AIDS education and prevention services. New York's DOH is a direct grant recipient of CDC funding and in turn serves as a subgrantor of funds to various community groups providing AIDS education and prevention services. Id. at ¶¶ 11-12.

Defendant Dr. Louis W. Sullivan is the U.S. Secretary of Health and Human Services. Defendant James O. Mason is the Director of the Centers for Disease Control. The persons in these two capacities are responsible for "making grants to public and nonprofit private entities for information and education programs on and for the ... prevention and control of, acquired immune deficiency syndrome." 42 U.S.C. § 247c(d) (1988 Supp.).

The Regulations and Statutory Amendments

By July of 1985, CDC had become a significant source of funding for community-based AIDS prevention programs. Def. Mem. I at 2. Up to and including that time, CDC imposed no restrictions upon the sexual explicitness of AIDS educational materials funded by it. See, e.g., 50 Fed. Reg. 30298 (July 25, 1985) (notice of availability of funds) (cited in Def.Mem. I at 2). However, in January of 1986, responding to "concerns over the explicit content of some of the proposed written and audiovisual materials," the CDC developed guidelines for the content of AIDS educational materials to be funded through the CDC. Letter from Donald A. Berreth, Director, Office of Public Affairs, CDC, dated May 28, 1987, attached as Exhibit K to Declaration of Michael Quadland in support of Plaintiff's motion for partial summary judgment. Those guidelines, or "grant terms," were published in a document called "Basic Principles," and provided that:

(a) language used in written materials ... should use terms or descriptors necessary for the target audience to understand the messages.

(b) Such terms or descriptors used should be those which a reasonable person would conclude should be understood by a broad cross-section of educated adults in society, or which when used to communicate with a specific group, such as gay men, about high risk sexual practices, would be judged by a reasonable person to be inoffensive to most educated adults beyond that group.

(c) The language of items in questionnaires or survey instruments which will be administered in any fashion to any persons should use terms to communicate the information needed which would be understood by a broad cross-section of educated adults in society but which a reasonable person would not judge to be offensive to such people.

(d) Audiovisual materials and pictorials in addition should communicate risk reduction messages by inference rather than through any display of the anogenital area of the body or overt depiction of the performance of "safer sex" or "unsafe sex" practices.

(e) Educational group sessions of any size should avoid activities in which attendees participate in sexually suggestive physical contact or actual sexual practices.

51 Fed.Reg. 3427, 3431 (Jan. 27, 1986). The "bounds of explicitness" were to be considered on a project-by-project basis by local Project Review Panels (PRPs), which would review and approve all materials. Id.² Similar grant terms were attached to May 1986 and March 1987 CDC notices of availability of AIDS-related project funds.³

Plaintiff GMHC received funding for an AIDS risk reduction project during the fiscal years 1986 and 1987, and that funding was subject to the above grant terms. Defendants' 3(g) statement, ¶¶ 3-4.

In December of 1987, Congress passed an amendment (commonly known as the "Helms Amendment") to the Labor— Health and Human Services Appropriations Act for Fiscal Year 1988, P.L. No. 100-202. The Helms amendment curtailed the range of AIDS educational materials that could be produced with CDC funds by community-based gay men's organizations. It provided, inter alia, that federal funds should not be used to provide materials that "promote or encourage, directly, homosexual sexual activities." It also required CDC-funded materials to "emphasize abstinence from" extramarital sexual activity, "including ... homosexual sexual activities," and "abstinence from the use of illegal intravenous drugs." Further, it called for repayment by non-complying recipients of funds wrongfully used, and the curtailment of future disbursements to non-complying organizations or agencies.⁴

In February 1988, CDC announced the availability of fiscal year 1988 federal funds for AIDS education and prevention projects. 53 Fed.Reg. 3553 (Feb. 5, 1988), as amended 53 Fed.Reg. 6034 (Feb. 29, 1988). These documents reiterated the CDC restrictions contained in sections (a), (b), (c), and (e) of the January 1986 announcements, supra, (with section (e) relettered as section (d)), and incorporated the Helms Amendment statutory restriction as the new section (e). 53 Fed.Reg. 6034-35.⁵ It also repeated the provisions for Program Review Panels which had been required since January 1986. (See, supra, n. 2).

Plaintiff GMHC did not seek federal AIDS education funding for fiscal year 1988. It claims it was deterred from so doing by the Helms Amendment provisions. Declaration of Timothy Sweeney, Deputy Executive Director for Policy of GMHC, ¶ 4. Plaintiffs Hetrick Martin and FHD also have not sought CDC funded contracts to perform AIDS prevention education services; they, too, allege that they would apply and compete for such funds but for the challenged restrictions. Plaintiff's First Amended Complaint, ¶¶ 6, 9. Plaintiff Horizons has sought and received approximately $69,000 in fiscal year 1988 CDC AIDS education and prevention funds through the Chicago Department of Health. Those...