WEST VIRGINIA ASS'N OF COM. HEALTH v. Sullivan

Decision Date01 March 1990
Docket NumberCiv. A. No. 2:89-0330.
CourtU.S. District Court — Southern District of West Virginia
PartiesWEST 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.

MEMORANDUM ORDER

COPENHAVER, District Judge.

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.

Background

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:

Required nondirective "options counsleling sic" on pregnancy termination (abortion), prenatal care, and adoption and foster care when a woman with an unintended pregnancy requests information on her options, followed by referral for these services if she so requests. These guidelines were premised on a view that "non-directive" counseling and referral for abortion were not inconsistent with the statute and were justified as a matter of policy in that such activities did not have the effect of promoting or encouraging abortion.

Id.1

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:

(a)(1) A Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning.
(2) Because Title X funds are intended only for family planning, once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child. She must also be provided with information necessary to protect the health of mother and unborn child until such time as the referral appointment is kept. In cases in which emergency care is required, however, the Title X project shall be required only to refer the client immediately to an appropriate provider of emergency medical services.
(3) A Title X project may not use prenatal, social service or emergency medical or other referrals as an indirect means of encouraging or promoting abortion as a method of family planning, such as by weighing the list of referrals in favor of health care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by "steering" clients to providers who offer abortion as a method of family planning.
(4) Nothing in this subpart shall be construed as prohibiting the provision of information to a project client which is medically necessary to assess the risks and benefits of different methods of contraception in the course of selecting a method; provided, that the provision of this information does not include counseling with respect to or otherwise promote abortion as a method of family planning.

§ 59.8(a)(1-4).

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:

(a) A Title X project may not encourage, promote or advocate abortion as a method of family planning. This requirement prohibits actions to assist women to obtain abortions or increase the availability or accessibility of abortion for family planning purposes. Prohibited actions include the use of Title X project funds for the following:
(1) Lobbying for the passage of legislation to increase in any way the availability of abortion as a method of family planning;
(2) Providing speakers to promote the use of abortion as a method of family planning;
(3) Paying dues to any group that as a significant part of its activities advocates abortion as a method of family planning;
(4) Using legal action to make abortion available in any way as a method of family planning; and
(5) Developing or disseminating in any way materials (including printed matter and audiovisual materials) advocating abortion as a method of family planning.

§ 59.10(a)(1-5).

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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