Planned Parenthood Ass'n of Utah v. Schweiker

• Decision Date: 18 February 1983
• Docket Number: No. 82-2334,82-2334
• Parties: PLANNED PARENTHOOD ASSOCIATION OF UTAH, et al., Appellants, v. Richard S. SCHWEIKER, Secretary, U.S. Department of Health and Human Services.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 710

700 F.2d 710

226 U.S.App.D.C. 139

PLANNED PARENTHOOD ASSOCIATION OF UTAH, et al., Appellants, v. Richard S. SCHWEIKER, Secretary, U.S. Department of Health and Human Services.

No. 82-2334.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 24, 1983.

Decided Feb. 18, 1983.

Appeal from the United States District Court for the District of Columbia (D.C.Civil No. 82-02562).

James L. Feldesman, with whom Jacqueline C. Leifer, Washington, D.C., was on brief, for appellants.

Alfred R. Mollin, Atty., Dept. of Justice, Washington, D.C., for appellee; Stanley S. Harris, U.S. Atty., Leonard Schaitman and Eloise E. Davies, Attys., Dept. of Justice, Washington, D.C., were on brief for appellee.

Before EDWARDS and SCALIA, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

In past years the Utah Department of Health and two private nonprofit organizations, Planned Parenthood Association of Utah and Park City Community Clinic, have all received annual funds under title X of the Public Health Service Act to provide comprehensive family planning services, excluding abortions, to Utah citizens. See 42 U.S.C.A. Secs. 300 to 300a-6a (1982). In its most recent title X award, however, the Department of Health and Human Services (HHS) granted all funds bound for Utah to the state health department. Planned Parenthood and Park City challenged the award in the District Court, chiefly on the grounds that the award violated title X and applicable regulations because (1) the state health department seems forbidden by a recent state enactment from providing services to unmarried minors whose parents do not first consent in writing, and (2) either HHS did not pay sufficient heed to the private organizations' statutory right to apply directly for a grant, or Utah did not give them an adequate opportunity to participate in the development of its consolidated grant application.

The District Court denied the plaintiffs' claim for a preliminary injunction and granted HHS's motion for summary judgment. In doing so it avoided ruling on the effect that the Utah consent law had on the propriety of HHS's decision to grant all title X funds to the state health department. Although we find that the District Court erred in failing to consider the plaintiffs' consent contentions, we nonetheless affirm the District Court's disposition. We find that Utah has provided adequate assurances that it will give unmarried minors who lack parental consent access to title X services, and that the procedures through which HHS consolidated this grant at the state level were adequate under the statute and regulations.

I

Title X authorizes the Secretary of HHS "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 which shall offer a broad range of acceptable and effective family planning methods and services." Id. Sec. 300(a). ¹ Before July 1977 Planned Parenthood received funds under this program directly from HHS. With the grant awarded in July 1977, for reasons not entirely clear, Planned Parenthood began to receive title X funds as a "delegate" agency of the state of Utah. This new arrangement had no apparent consequences on Planned Parenthood's programs or level of funding; it simply meant that Planned Parenthood's funds passed first through the state of Utah's hands.

In July 1980 Planned Parenthood once again began to receive funds directly from HHS. This switch was prompted by a statement of intent passed by the Utah legislature which declared that, in administering title X funds, the state could contract only with other public entities and thus that private organizations like Planned Parenthood could no longer serve as delegates of the state. Appellant's Addendum at 73 (affidavit of Planned Parenthood's executive director). Thus, to continue Planned Parenthood's funding, HHS returned in its July 1980 award to its prior practice of funding the private organization directly. ²

Before HHS awarded its July 1981 grant, the Utah state legislature passed Senate Bill 3. ³ Although the reach of S.B. 3 is now somewhat in doubt, the bill seemed at the time to prohibit state agencies from providing even title X contraceptive services to unmarried minors who lacked parental consent. HHS officials in the regional office responsible for Utah were concerned that a consent requirement for minors might violate department regulations, which require title X projects to provide services "without regard to ... age," 42 C.F.R. Sec. 59.5(a)(4) (1982). See Appellant's Addendum at 67 (memorandum to regional health administrator). The problem, however, was not new. In the previous grant year, before S.B. 3 was passed, the Utah state health department was already refusing to serve unmarried minors whose parents had not consented. HHS's regional health administrator believed that this informal policy did not necessarily violate the regulations, because the state health department referred these minors to Planned Parenthood or Park City, "which, in effect, satisfied the requirements of title X since they were seeing that these individuals received their services." Id. at 68 (letter from regional health administrator to deputy director of Office of Intergovernmental Affairs). The regional health administrator, however, was apparently unsure whether S.B. 3 would affect this prior practice, and he asked for advice from an HHS regional attorney. See id. at 70 (letter from regional health administrator to assistant secretary for health). Yet before the legal questions were fully answered, the date for awarding the grant slipped by, and after a brief delay HHS awarded its July 1981 funds as it had the year before: some directly to Planned Parenthood and Park City, some to the state health department. Presumably, the regional health administrator thought that if the state continued to refer minors to the other title X grantees, the grant would conform with the regulations. And the grant decision was not irreversible: "if these organizations don't fulfill the requirements of title X," he reasoned, "we can take the money back." Id. at 69 (regional health administrator to deputy director of Office of Intergovernmental Affairs).

It is the next year's grant, originally scheduled to be awarded in July 1982, that is the subject of this appeal. In March 1982 each of the three Utah grantees submitted applications for renewal of their grants, the state health department requesting all the title X money slated to finance projects within the state. Based on its application as it then stood, however, the state health department would never have received all the funds bound for the state. Dr. Edward D. Martin, then director of HHS's Bureau of Community Health Services, ⁴ found the application incomplete in two respects. Martin Deposition at 57-59. First, it made assurances for serving only approximately 4,000 of the 12,000 eligible patients in the state. Second, it did not reflect consultation with the other grantees, Planned Parenthood and Park City. HHS regulations require that applications to consolidate services in a single grantee document that "local or regional entities" that have previously provided family planning services, or that propose to do so, have been given, "to the maximum feasible extent, an opportunity to participate in the development of the [consolidated] application." 42 C.F.R. Sec. 59.5(a)(10)(i) (1982). ⁵

Although these deficiencies and other factors suggest that in March Utah really expected only to receive a portion of available funds, as it had in the past, ⁶ Dr. Martin soon made clear to all parties that HHS was viewing Utah's request for all funding with great interest and that a complete consolidated grant application would be given serious consideration. For several years HHS had favored consolidating grants in the interests of efficiency, when it was feasible to do so, and this policy became all the more attractive when available funds began to shrink. Martin Deposition at 132, 141, 159-61. By February 1982 HHS had already awarded consolidated grants in twenty-eight states; twenty-three were consolidated in state agencies, five in nonstate agencies. R. 38 (defendant's attachment K). To keep the hopes of a consolidated grant alive, though the July 1 date scheduled for the award of the new grant was drawing near, the regional health administrator on June 11, 1982, sent a letter to Planned Parenthood informing it of Utah's intention to apply for a consolidated grant and extending previous funding for all grantees for sixty days to enable Planned Parenthood and Park City to participate in the development of Utah's consolidated application. Appellant's Addendum at 56. The regional health administrator assured Planned Parenthood, however, that HHS would still consider its pending application on its own merits. Id.

Planned Parenthood responded on June 24, 1982, by expressing its opposition to the consolidation of grants within Utah, an approach it thought should not even be "seriously consider[ed]." Id. at 58. Although it expressed its willingness to cooperate in "legitimate" approaches for enhancing the provision of services, Planned Parenthood did not believe that HHS's proposed approach would be such an improvement. Id. Nonetheless, Planned Parenthood and Park City attended a meeting with state and local officials and representatives of HHS on July 6, 1982, to discuss consolidation. HHS representatives explained at that meeting that, while none of the current grantees was required to resubmit its application, there was still time (1) for the grantees to submit one consolidated grant application for the three of them, or (2) for each grantee to submit competing applications to consolidate a grant in its own organization. (The...