Planned Parenthood Ass'n-Chicago Area v. Kempiners

• Decision Date: 07 December 1981
• Docket Number: No. 81 C 3332.,81 C 3332.
• Citation: 531 F. Supp. 320
• Court: U.S. District Court — Northern District of Illinois
• Parties: PLANNED PARENTHOOD ASSOCIATION—CHICAGO AREA, an Illinois non-profit corporation, Plaintiff, v. William L. KEMPINERS, individually and as Director of the Illinois Department of Public Health, Defendant, and Care Center of Springfield, Inc., Intervenor-Defendant.

531 F. Supp. 320

PLANNED PARENTHOOD ASSOCIATION—CHICAGO AREA, an Illinois non-profit corporation, Plaintiff, v. William L. KEMPINERS, individually and as Director of the Illinois Department of Public Health, Defendant and Care Center of Springfield, Inc., Intervenor-Defendant.

No. 81 C 3332.

United States District Court, N. D. Illinois, E. D.

November 23, 1981.

On Motion to Stay Injunction December 7, 1981.

Terry Rose Saunders, Craig R. Spiegel, Jenner & Block, Chicago, Ill., for plaintiff.

Judith Mostovoy, Asst. Atty. Gen., Tyrone C. Fahner, Atty. Gen., Imelda Terrazino, Asst. Atty. Gen., Chicago, Ill., for defendant.

Thomas J. Marzen, Americans United for Life Legal Defense Fund, Patrick A. Trueman, Dennis J. Horan, Chicago, Ill., for Care Center of Springfield, Inc.

MEMORANDUM OPINION

MARSHALL, District Judge.

This case presents the question whether the State of Illinois may constitutionally deny plaintiff, Planned Parenthood Association, eligibility for grants of state funds under a state program designed to deal with problem pregnancies, solely on the ground that Planned Parenthood offers its clients abortion counseling and referral services.

I

Planned Parenthood Association—Chicago Area (hereinafter "Planned Parenthood") is a private Illinois nonprofit corporation. Planned Parenthood is divided into three departments. The Information and Education Department provides community education concerning reproductive health. The Client Service Department provides a variety of medical and counseling services. The Support Services Department provides necessary support staff and assistance. It is the activities of the Client Services Department that concern us in this lawsuit.

The Client Services Department provides, inter alia, a Pregnancy Testing and Counseling Service and a Pregnancy Information Hotline. The Testing Service conducts pregnancy testing for approximately 140 to 180 women each month. For those women who are pregnant, the Counseling service provides "options counseling."

The purpose of such counseling is to discuss all of the alternatives available to a pregnant woman, including the alternative of abortion, so that the client can have a factual basis on which to decide what course of action is best for her. Therapy is not engaged in, nor is a course of action recommended. The majority of women who come to the pregnancy testing service request and receive information concerning abortion. The counselor will provide information concerning the possibility of abortion, but the woman is never encouraged to follow that or any other particular alternative. If the client desires to be placed in touch with an abortion clinic, however, the counselor will provide the names of clinics which have been evaluated by Planned Parenthood. Clinics are evaluated on numerous bases, and the clinics mentioned are considered sufficient in all areas. A number of women who are referred to abortion clinics desire to obtain an abortion for therapeutic reasons. Planned Parenthood does not perform abortions nor does it encourage abortions. Affidavit of Elizabeth Mooney at 2-3.

Planned Parenthood also provides services to women with "problem pregnancies." This term refers to pregnancies which create mental or physical difficulties for the pregnant woman. These women are provided with counseling services which attempt to help them address their unique needs.

Defendants do not dispute Planned Parenthood's contention that it in no way promotes, encourages, or advocates abortion. All parties agree that Planned Parenthood's practices constitute a sincere attempt to neutrally and objectively inform a pregnant woman of her options, in order to ensure that her decision regarding her pregnancy is a fully informed one.

On November 1, 1979, the Illinois Problem Pregnancy Health Services and Care Act became effective. It was passed over Governor Thompson's veto.¹ The Act was designed to provide grants to grantees in order to ameliorate the plight of women with problem pregnancies. See Ill.Rev. Stat., ch. 111½, § 4604-102(A) (1979). However, the Act was amended during the course of its consideration to exclude from eligibility for grants applicants who "refer or counsel for abortion." Id. § 4604-100.

On March 31, 1981, Planned Parenthood applied for a grant under the Act. Planned Parenthood's application stated that it would use the funds for testing, options counseling, medical screening, referral, and follow-up services. The application stated that the options counseling services would involve discussion of "all options" with the client, including abortion.² Planned Parenthood's application was denied on the stated ground that those organizations which had already been funded in the preceding year had priority for future funding.

On June 12, 1981, Planned Parenthood filed suit seeking declaratory and injunctive relief against Ill.Rev.Stat., ch. 111½, § 4604-100 (1979). William L. Kempiners, individually and as Director of the Illinois Department of Public Health, was named as defendant. Mr. Kempiners is the state official responsible for administering the Act.

On June 17, Planned Parenthood moved this court to enter a preliminary injunction against defendant Kempiners. On June 30 this court denied the motion and stated that it would instead treat the pending motion as a motion for summary judgment.

On July 31, 1981, Care Center of Springfield, Inc. moved to intervene as a defendant. Care Center is a private nonprofit corporation which provides pregnancy counseling and referral services of the type supported by the Act. Care Center currently receives 13 percent of its funding from the State of Illinois under the Act. The Center provides no abortion-related services of any kind. The motion to intervene was subsequently granted.

Planned Parenthood and Mr. Kempiners have presented cross motions for summary judgment which are fully briefed and ready for ruling. All parties agree that there is no genuine issue of material fact present in this case. Therefore, it is appropriate that the case be resolved at this juncture. See Fed.R.Civ.P. 56(c).

II

Before reaching the merits, the question of plaintiff's standing must be addressed. Although not raised by the parties, the issue must nevertheless be resolved since the constitutional requirements for standing go to this court's jurisdiction and therefore must be raised by the court on its own motion. See Fed.R.Civ.P. 12(h)(3); Orr v. Orr, 440 U.S. 268, 271, 99 S.Ct. 1102, 1107, 59 L.Ed.2d 306 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Frothingham v. Mellon, 262 U.S. 447, 480, 43 S.Ct. 597, 598, 67 L.Ed. 1078 (1923). See also Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167, 60 S.Ct. 153, 154, 84 L.Ed. 167 (1939) (parties may not confer jurisdiction by consent).

In order to establish standing, Planned Parenthood must demonstrate that it has suffered injury in fact, and that its injury is fairly traceable to the challenged conduct. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). There is no doubt that Planned Parenthood has suffered injury in fact through the denial of its application. However, it is questionable whether the injury is fairly traceable to the challenged statute. Defendant Kempiners argues that the denial was simply the result of the priority accorded to previously funded agencies, and not to the abortion counseling conducted by Planned Parenthood. Moreover, because of the inseverability clause in the Act, see Ill.Rev. Stat., ch. 111½, § 4606-100 (1979), if this court holds the Act unconstitutional, state law may require that the entire grant program cease to operate. In either case, the likelihood that a judgment for the plaintiff in this case will lead to Planned Parenthood receiving government funds is speculative at best. It can therefore be argued that Planned Parenthood lacks standing because the relief it seeks will not redress the injury it has suffered. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343 (1975).

Such an argument, however, would misconceive the nature of the constitutional injury Planned Parenthood claims to have suffered. The injury is not the fact that Planned Parenthood has been denied government funds, since it has no right to receive any money at all from the government. See, e.g., Maher v. Roe, 432 U.S. 464, 469, 97 S.Ct. 2376, 2380, 53 L.Ed.2d 484 (1977). Rather, the constitutional injury stems from the fact that Planned Parenthood alleges that it has been disqualified for government funds for an impermissible reason. The Constitution is not offended by the mere refusal to subsidize, but it is offended when that refusal is made for impermissible reasons. See id. at 469-70, 97 S.Ct. at 2380; Memorial Hospital v. Maricopa County, 415 U.S. 250, 258-60, 94 S.Ct. 1076, 1082-1083, 39 L.Ed.2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). From a constitutional standpoint, it makes no difference whether Planned Parenthood ultimately receives state funds. What is constitutionally significant is that Planned Parenthood not be denied funds on an impermissible basis. Defendants do not dispute the assertion that Planned Parenthood is disqualified from state funding by § 4604-100. Therefore, if that statute constitutes an impermissible basis for state action, its very existence, without more, constitutes constitutional injury to Planned Parenthood. Planned Parenthood's constitutional...