Planned Parenthood Federation of America v. Bowen, Civ. A. No. 88-Z-158.

Decision Date15 June 1988
Docket NumberCiv. A. No. 88-Z-158.
PartiesPLANNED PARENTHOOD FEDERATION OF AMERICA, Planned Parenthood of the Rocky Mountains, Planned Parenthood Association of Utah, Boulder Valley Women's Health Center, Marilyn Foelski, M.D., Philip Freedman, M.D., and Kirtly Jones, M.D., Plaintiffs, v. Otis BOWEN, M.D., individually and in his capacity as Secretary of the United States Department of Health and Human Services, Defendant.
CourtU.S. District Court — District of Colorado

James W. Hubbell, Kelly/Haglund/Garnsey & Kahn, Denver, Colo., Roger K. Evans, Dara Klassel, Beth Otten, Planned Parenthood Federation of America, Inc., New York City, for plaintiffs; Jeffrey R. Oritt, Tibbals, Howell, Jones & Moxley, Salt Lake City, Utah, Howard Holme, Fairfield & Woods, Denver, Colo., of counsel.

Chalk Mitchell, Asst. U.S. Atty., Denver, Colo., Robert J. Cynkar, Thomas Millet, Federal Programs Branch, Civil Div., Dept. of Justice, Washington, D.C., for defendant.

FINAL ORDER AND JUDGMENT

WEINSHIENK, District Judge.

This case is before the Court on defendant's Motion For Summary Judgment and Plaintiffs' Cross-Motion For Summary Judgment.1 In an earlier Order Granting Plaintiffs' Motion For Preliminary Injunction (hereinafter Preliminary Injunction Order),2 the Court preliminarily enjoined defendant from putting into effect certain regulations governing the activities of entities receiving funds for family planning services under Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6a. See 53 Fed.Reg. 2944-45 (Feb. 2, 1988) (to be codified at 42 C.F.R. §§ 59.2, 59.7-59.10 (1988)). The present motions and supporting briefs address the issue of whether plaintiffs are entitled to an injunction permanently enjoining defendant from enforcing or applying the above-mentioned regulations.

Summary judgment is appropriate only when there is no genuine issue of material fact so that a reviewing court can resolve the issues presented as a matter of law. Carey v. United States Postal Service, 812 F.2d 621, 623 (10th Cir.1987), citing, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Upon careful review of the briefs and arguments of the parties and amici, this Court concludes that plaintiffs are entitled as a matter of law to a permanent injunction which, by definition, permanently prevents defendant from enforcing or applying the regulations at issue. Accordingly, plaintiffs' Cross Motion For Summary Judgment will be granted, and defendants' Motion For Summary Judgment will be denied.

The legal analysis which the Court must conduct in determining whether to issue a permanent injunction is virtually identical to the analysis involved in the preliminary injunction context. Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982); Sierra Club v. Alexander, 484 F.Supp. 455 (N.D.N.Y.), aff'd mem., 633 F.2d 206 (2d Cir.1980). That is, in order to grant a permanent injunction, the court must find that (1) plaintiffs have succeeded on the merits; and (2) the "balance of equities" favors the issuance of a permanent injunction. Alexander, 484 F.Supp. at 471. Equitable principles considered in determining whether to grant either preliminary or permanent injunctive relief are the same. Hennessy, 695 F.2d at 647. Plaintiffs must demonstrate that (1) irreparable injury will occur; (2) the threatened injury to them outweighs whatever damage a permanent injunction may cause defendant; and (3) the granting of permanent injunctive relief is not harmful to the public interest. Id. at 647-650; Philadelphia Welfare Rights Organization v. O'Bannon, 525 F.Supp. 1055, 1057-58 (E.D.Pa.1981); see also 7 J. Moore, Moore's Federal Practice § 65.041, at 65-30 to 65-70 (1980); Cf. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982); Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 95 S.Ct. 2069, 45 L.Ed. 2d 12 (1975); Mesa Petroleum Co. v. Cities Service Co., 715 F.2d 1425, 1432 n. 13 (10th Cir.1983).

Regarding the success on the merits and irreparable injury issues, the Court has reviewed carefully the briefs and supplemental filings of the parties as well as the amici briefs and is convinced that the legal conclusions and reasoning set forth in the Preliminary Injunction Order are correct. See Planned Parenthood, 680 F.Supp. at 1467-78. Accordingly, the Court concludes that plaintiffs have established success on the merits as a matter of law. Defendant lacked statutory authority to enact the regulations in question.

In addition, the Court determines that plaintiffs have demonstrated irreparable injury as a matter of law because the regulations in question are unconstitutional. More specifically, the regulations violate (1) a woman's Fifth Amendment liberty interest in choosing whether to have an abortion, (2) her First Amendment right to receive necessary medical information to enable her to vindicate her Fifth Amendment liberty interest, and (3) a physician's or other treating practitioner's First Amendment right to disseminate necessary medical information to patients.

In support of the conclusions that plaintiffs have demonstrated success on the merits and irreparable injury, the Court adopts and incorporates by reference the reasoning set forth in the Preliminary Injunction Order. See id.

Defendant cites the recent Supreme Court case of Lyng v. International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America to support its contention that the regulations in question are constitutional. ___ U.S. ___, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988).3 Lyng is distinguishable from the present case. The analytical framework in Lyng is qualitatively different from the case at bar. The Supreme Court in Lyng employed a rational basis standard of review, which is "typically quite deferential," in upholding the provision at issue. 108 S.Ct. at 1192, 99 L.Ed.2d at 391. On the other hand, the regulations in the present case represent content-based censorship which significantly impairs the First Amendment rights of Title X practitioners and patients, as opposed to merely having some effect on their First Amendment rights. As a result, the Court must analyze these regulations using a more probing strict scrutiny test. See Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976). The regulations do not withstand constitutional muster under this more exacting strict scrutiny test. See Planned Parenthood, 680 F.Supp. at 1476-78.

The different analytical framework that the Court must use in the present case reflects the fact that the infringement upon First Amendment rights in the present regulations is qualitatively more severe than the provision at issue in Lyng. Unlike the provision in Lyng, the regulations in the present case represent viewpoint-based discrimination. In addition, the regulations in the present case intrude upon a woman's fundamental right to decide to have an abortion, while the provision in Lyng does not implicate any fundamental right. These differences in the factual scenarios of each case provide another basis for distinguishing Lyng from the present case.4

Another recent Supreme Court decision, Boos v. Barry, sheds some light on the First Amendment question. ___ U.S. ___, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). In Boos, the Court invalidated on First Amendment grounds a portion of a District of Columbia statute which prohibited the display of any sign within 500 feet of a foreign embassy if it tends to bring that foreign government into "public odium" or "public disrepute." In so doing, the Court reiterated its longstanding opposition to content-based censorship. Admittedly, Boos does not involve the precise issues as the present case. However, the Court's decision in the present case that the regulations violate the First Amendment accords well with the spirit of the Supreme Court's recent pronouncement in Boos that government provisions which restrict an individual's ability to freely express certain viewpoints are unconstitutional.

Regarding the balance of hardship question, plaintiffs have submitted numerous declarations from practitioners at Title X facilities detailing the catastrophic effect that implementation of the regulations will have upon their ability to serve the entire range of their patients' needs. In fact, there is evidence in the record that the implementation of the regulations will force certain Title X clinics to terminate their Title X programs altogether. For example, Karrie Galloway, Executive Director of Planned Parenthood Association of Utah (PPAU), asserts in her Declaration that PPAU will have to discontinue its Title X program if the regulations at issue take effect. Declaration of Karrie Galloway, Executive Director of Planned Parenthood of Utah, Declarations Accompanying Plaintiffs' Brief In Support Of Motion For Preliminary Injunction.

In addition, in the Preliminary Injunction Order issued earlier, the Court discussed at length the irreparable injuries plaintiffs as well as Title X patients themselves will incur as a result of defendant's violation of the First and Fifth Amendments. See Planned Parenthood, 680 F.Supp. at 1473-78. The totality of the hardship that plaintiffs will incur from the implementation of these regulations far outweighs any harm which defendant will suffer from the issuance of a permanent injunction. In fact, the Court fails to see the harm which will inure to defendant from the issuance of a permanent injunction. The Title X program simply will continue to operate in the effective manner that it has since its inception.

Finally, in considering whether a permanent injunction will be...

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2 cases
  • Planned Parenthood Federation of America v. Sullivan
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 6, 1990
    ...against implementation of the new regulations. Planned Parenthood Fed'n of Am. v. Bowen, 680 F.Supp. 1465 (preliminary injunction) and 687 F.Supp. 540 (permanent injunction) (D.Colo.1988). The district court ruled that the regulations violate the intent of Congress as expressed in the statu......
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    • United States
    • U.S. District Court — District of Kansas
    • January 3, 1990
    ...the proposed regulations, however, has been enjoined as inconsistent with the legislative intent underlying Title X. See PPFA v. Bowen, 687 F.Supp. 540 (D.Colo. 1988); Massachusetts v. Bowen, 679 F.Supp. 137 (D.Mass.1988), aff'd sub nom. Massachusetts v. Secretary of HHS, 873 F.2d 1528 (1st......

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