WEST VIRGINIA ASS'N OF COM. HEALTH v. Sullivan
Decision Date | 01 March 1990 |
Docket Number | Civ. A. No. 2:89-0330. |
Citation | 737 F. Supp. 929 |
Court | U.S. District Court — Southern District of West Virginia |
Parties | WEST VIRGINIA ASSOCIATION OF COMMUNITY HEALTH CENTERS, INC.; West Virginia Primary Care Study Group, Inc.; Women's Health Center of West Virginia, Inc.; Shenandoah Community Health Center of Intercounty Health, Inc.; Putnam Birthplace; West Virginia Section of the American College of Obstetricians and Gynecologists; West Virginia Department of Health, David K. Heydinger, M.D., Director, Plaintiffs, v. Louis SULLIVAN, Secretary, U.S. Department of Health and Human Services, Defendant. |
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E. Dandridge McDonald, Maria Fakadej, Charleston, W.Va., James L. Feldesman, Susan D. Lauscher, Washington, D.C., Christine Marie Hedges, Spencer, W.Va., Kirk B. Johnson, Edward B. Hirshfeld, David Orentlicher, American Medical Ass'n, Chicago, Ill., Anne E. Allen, Washington, D.C., Jack R. Bierig, David F. Graham, Richard D. Raskin, Lynn D. Fleisher, Chicago, Ill., Don R. Sensabaugh, Jr., Barbara Freedy, Larry L. Rowe, Charleston, W.Va., Kent Masterson Brown, Lexington, Ky., Dan Hardway, Charleston, W.Va., Paul Clay, Fayetteville, W.Va., Clarke D. Forsythe, Kevin J. Todd, Chicago, Ill., for plaintiffs.
Michael W. Carey, U.S. Atty., Stephen M. Horn, Asst. U.S. Atty., Charleston, W.Va., James R. Bolton, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., for defendant.
This matter is before the court upon the motion of the plaintiffs West Virginia Association of Community Health Centers, Inc., Women's Health Center of West Virginia, Inc., Shenandoah Community Health Center of Intercounty Health, Inc., Putnam Birthplace, West Virginia Primary Care Study Group, the West Virginia Section of the American College of Obstetricians and Gynecologists, and Dr. David K. Heydinger, Director of the West Virginia Department of Health, to enjoin the United States Department of Health and Human Services (hereinafter, "HHS") from enforcing the new regulations found at 42 C.F.R. §§ 59.1 —59.17 (1988), which affect the distribution of Title X benefits. Having obtained the agreement of all counsel, plaintiff's motion for a preliminary injunction shall be treated as a motion for final declaratory and injunctive relief on the merits. The record before the court consists of various affidavits and exhibits, as well as the pleadings.
On February 2, 1988, new regulations under Title X of the Public Health Service Act, 42 U.S.C. §§ 300 to 300a-6 (1982) were issued at 53 Fed.Reg. 2922. The asserted goal of the amended regulations was to assure compliance by family-planning "projects" with section 1008 of Title X, which stipulates that "none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. § 300a-6. Since 1972, the Department interpreted section 1008 as prohibiting Title X projects from providing abortions and from promoting or encouraging abortions. 53 Fed.Reg. 2922, 2923 (Feb. 2, 1988). However, "the Department generally took the view that activity which did not have the immediate effect of promoting abortion or which did not have the principal purpose or effect of promoting abortion was permitted." Id. In 1981, HHS issued revised Title X guidelines expanding on the activities permitted. These guidelines:
The regulations in dispute here alter the agency's interpretation of the section 1008 prohibition by redefining the terms "family planning" services and "Title X project funds," by prohibiting Title X projects from engaging in abortion counseling and referral services, by mandating physical and financial separation of Title X projects from projects providing abortion services, and by prohibiting Title X projects from engaging in certain abortion-related activities.2 "Family planning" is redefined so as to encompass only preconception services and exclude pregnancy care.3 § 59.2. The definition of "Title X project funds" is expanded to include "all funds allocated to the Title X program, including but not limited to grant funds, grant-related income or matching funds." Id.
Section 59.8 prohibits abortion counseling and referral by providing:
In addition to prohibiting abortion counseling or referrals, the new regulations prohibit a Title X project from using any of its funds for abortion-related services, including income from other sources in the form of grant-related income or private matching funds. § 59.2. Under section 59.9, a Title X project must be organized so that it has "objective integrity and independence from prohibited activities," such as counseling and referral for abortions. The criteria to be used in making this determination include the degree of physical separation of facilities, the existence of separate personnel and accounting records, and the extent to which the Title X project is separately identified and kept free from material promoting abortion. The agency's commentary to the final rules states that the separation requirement will be determined on a case-by-case basis with no one factor being determinative so long as the separation is "visible." 53 Fed.Reg. 2922, 2940 (Feb. 2, 1988). In order to meet this requirement, the plaintiffs suggest that many Title X grantees will be unable to maintain their Title X project at the same location as facilities providing abortion-related services.
Finally, the new provisions contained in section 59.10 prohibit any activities which promote or advocate abortion as a method of family planning:
Absent the granting of further injunctive relief, the new regulations are scheduled to be implemented by defendant in the State of West Virginia on March 1, 1990. Plaintiffs West Virginia Association of Community Health Centers and West Virginia Primary Care Study Group are membership organizations of community health centers and clinics that receive Title X funds. Plaintiff West Virginia Section of the American College of Obstetricians and Gynecologists is an organization of 129 obstetricians and gynecologists practicing in West Virginia, and includes members providing services in Title X clinics. Plaintiffs Women's Health Center of West Virginia, Inc., and the Shenandoah Community Health Center of Intercounty Health, Inc., are recipients of Title X funds from the state. Plaintiff Dr. David K. Heydinger, in his official capacity as director of the West Virginia Department of Health, is the grantee of all Title X funds awarded in West Virginia by the defendant, Louis Sullivan, Secretary of the United States Department of Health and Human...
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