Planned Parenthood Ass'n of Chicago Area v. Kempiners

• Decision Date: 23 February 1983
• Docket Number: 81-3006 and 81-3013,Nos. 81-2919,s. 81-2919
• Parties: PLANNED PARENTHOOD ASSOCIATION OF CHICAGO AREA, an Illinois not-for-profit corporation, Plaintiff-Appellee, Cross-Appellant, v. William L. KEMPINERS, individually and as Director of the Illinois Department of Public Health, Defendant-Appellant, Cross-Appellee, and Care Center of Springfield, Inc., Intervening Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1115

700 F.2d 1115

PLANNED PARENTHOOD ASSOCIATION OF CHICAGO AREA, an Illinois not-for-profit corporation, Plaintiff-Appellee Cross-Appellant, v. William L. KEMPINERS, individually and as Director of the Illinois Department of Public Health Defendant-Appellant, Cross-Appellee and Care Center of Springfield, Inc., Intervening Defendant-Appellant.

Nos. 81-2919, 81-3006 and 81-3013.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1982.

Decided Feb. 23, 1983.

Thomas J. Marzen, Americans United for Life Defense Fund, Chicago, Ill., for intervening defendant-appellant.

Terry Rose Saunders, Jenner & Block, Chicago, Ill., for plaintiff-appellee, cross-appellant.

Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.

PER CURIAM.

The judgment appealed from is vacated and the case is remanded to the district court for an evidentiary hearing to explore the questions of standing raised in Judge Posner's separate opinion. Circuit Rule 18, which provides that unless otherwise directed a case in which the judgment of the district court is reversed shall be reassigned to a different district judge, shall not apply. After holding the hearing contemplated by this order, Judge Marshall shall enter whatever judgment--e.g., dismissing the complaint in whole or in part if he finds that the plaintiff lacks standing to raise all or some of the issues tendered by its complaint, or reinstating his previous opinion in whole or in part, or modifying it or adding to it, if satisfied that the plaintiff does have standing--is appropriate in light of that hearing.

As explained in Judge Cudahy's separate opinion, Judge Cudahy believes that the plaintiff introduced sufficient evidence to establish its standing to raise all of the issues that it has sought to raise on this appeal. But to enable the case to be decided by a majority vote, Judge Cudahy has decided to defer to Judge Posner's view that additional evidence should be taken on the issue of standing, and hence to join in this order. Judge Eschbach believes that the judgment appealed from should be vacated with directions to dismiss the complaint for lack of standing, and has filed a separate opinion explaining his view.

VACATED AND REMANDED.

CUDAHY, Circuit Judge.

In this appeal we are asked to decide whether the State of Illinois may constitutionally deny the plaintiff, Planned Parenthood Association, eligibility for funds under a state program dealing with problem pregnancies, because Planned Parenthood offers its clients abortion counseling and referral services. The district court held that the state law in question is unconstitutional because it actively interferes with the constitutionally protected decision by Planned Parenthood's clients whether to terminate their pregnancies, in violation of the first and fourteenth amendments of the United States Constitution. 531 F.Supp. 320 (N.D.Ill.1981). I would affirm the judgment that the law is unconstitutional, but would do so on the ground that the law constitutes an impermissible penalty on the exercise of first amendment rights by counseling agencies. Since neither of my brethren concurs in this disposition, however, in order to create a majority, I defer to the opinion of Judge Posner, who wishes to remand the case to the district court for further findings about the plaintiff's standing to maintain the suit.

I.

Plaintiff Planned Parenthood Association--Chicago Area ("Planned Parenthood") is a private Illinois non-profit corporation which provides family planning and pregnancy related services, including medical, educational and counseling services to residents of the Chicago metropolitan area. Planned Parenthood operates a Client Services Department which provides, inter alia, pregnancy testing, options counseling service and telephone information service regarding pregnancy, prenatal care and family planning matters. Planned Parenthood does not perform abortions, nor does it encourage or recommend abortions, but it does presently provide its clients with the names of medical abortion facilities which have been evaluated by Planned Parenthood.

Planned Parenthood attempts to inform a woman of her options in the event of pregnancy in an objective manner, with the intention that her decision about pregnancy be a fully informed one. As indicated, Planned Parenthood's counseling program involves "options counseling" in which the counselor and client discuss the possibility of continuing the pregnancy as well as the possibility of abortion in light of the client's individual situation. The purpose of the options 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 Illinois Problem Pregnancy Health Services and Care Act, Ill.Rev.Stat. ch. 111 1/2, Secs. 4601-100--4606-101 (Supp.1980) (the "Act") became effective in 1979. The Act recognizes the need to expand and coordinate services, including counseling, educational and training programs, for women with problem pregnancies. The Act authorizes the Illinois Department of Public Health (the "Department") to make and administer grants to aid and expand community services essential to deal with problem pregnancies. ¹ Section 4604-100 of the Act provides, in pertinent part, that "[t]he Department may make grants to nonprofit agencies and organizations which do not refer or counsel for abortion ...." Ill.Rev.Stat. ch. 111 1/2, Sec. 4604-100 (Supp.1980).

On March 31, 1981, Planned Parenthood applied for a grant under the Act. Planned Parenthood sought funding for a program, to be operated as part of its Client Services Department, that would provide initial pregnancy testing and medical screening of women seventeen years old and under, options counseling for those women who were pregnant, and follow-up counseling, health and educational services for those women who carried to term, as well as their partners. The application further stated that,

All options are discussed in the counseling session. The counselor and client discuss the possibility of continuing the pregnancy, with the woman either keeping the baby or putting the baby up for adoption.... There is also a discussion of the possibility of the client voluntarily terminating her pregnancy. Appropriate referrals are given based on the option chosen by the client.

Planned Parenthood's application was denied by the Department on June 10, 1981, for the stated reason that those organizations which had already been funded in the preceding year had priority for future funding.

Planned Parenthood then filed this action on June 12, 1981, against the Director of the Department (the "Director") seeking a declaratory judgment that the Illinois Act was unconstitutional, null, void and unenforceable, and requesting injunctive relief against the Director to enjoin him from awarding grants or disbursing funds pursuant to the Act. Count I of the complaint essentially asserted that the statutory disqualification of organizations which provide abortion counseling and referral services constitutes an unconstitutional penalty on Planned Parenthood's exercise of protected rights. Count II of the complaint essentially asserted that the Illinois Act infringes on the rights of Planned Parenthood's clients to decide whether to implement their constitutional right to abort in violation of the fourth, ninth and fourteenth amendments to the United States Constitution. Count III of the complaint asserted that the Act's disqualification of organizations that counsel or refer for abortion creates classifications that deny equal protection of the laws in violation of the fourteenth amendment of the United States Constitution.

Planned Parenthood requested the district court to enter a preliminary injunction against the Director. The district court denied the motion on June 30, 1981, and stated that it would instead treat the pending motion as a motion for summary judgment. The Director then filed a cross-motion for summary judgment.

Care Center of Springfield, Inc. ("Care Center") filed a motion to intervene as a defendant, which was granted on September 10, 1981. Care Center is a private nonprofit corporation which provides crisis intervention, counseling, education and referrals for persons in situations such as problem pregnancies (but does not refer or counsel for abortion). Care Center received 13% of its funding from the State of Illinois under the Act.

On November 23, 1981, the district court entered a final order denying Planned Parenthood's motion for summary judgment as to Counts I and III and granting its motion as to Count II; the order also granted the Director's motion for summary judgment as to Counts I and III and denied his motion as to Count II. On this basis, the district court declared section 4604-100 of the Illinois Act unconstitutional and enjoined the Director from enforcing it.

Care Center and the Director appeal from that part of the final order granting Planned Parenthood's motion for summary judgment and denying the Director's motion for summary judgment as to Count II. Planned Parenthood cross-appeals from that part of the final judgment granting the Director's motion for summary judgment and denying Planned Parenthood's motion for summary judgment as to Counts I and III of the complaint.

II.

At the outset, I must address the question of Planned Parenthood's standing to challenge the constitutionality of the Act. Although the parties did not raise the issue, the district court considered it in depth and concluded that Planned Parenthood did have standing to attack the statute as an impermissible basis for the allocation of state funds. 531 F.Supp. at 323-24.

The district court observed that Planned Parenthood's injury stemmed from Planned Parenthood's...