Appeal from a judgment of the United States District Court for the Southern District of New York (Walker, J.) dismissing the complaint, pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that the complaint does not state a claim under the Foreign Assistance Act and the constitutional claims raise non-justiciable political questions.
Timbers and Miner, Circuit Judges, and Lasker, District Judge.*fn*
Plaintiffs-appellants Planned Parenthood Federation of America, Inc. ("Planned Parenthood"), Planned Parenthood Center of El Paso, Stewart R. Mott, Stephen L. Isaacs, Sosamma Lindsay, Rebecca Ramos and Jane Doe, on behalf of themselves and others similarly situated, appeal from an order entered in the United States District Court for the Southern District of New York (Walker, J.) granting the motion of defendants-appellees Agency for International Development ("AID") and M. Peter McPherson, as Administrator of AID, to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). 670 F. Supp. 538. Appellants challenge the lawfulness of AID's implementation, via clause provisions inserted in family planning grants and cooperative agreements ("Standard Clause"), of the Policy Statement of the United States of America (the "Statement"), which was delivered in August 1984 at the United Nations International Conference on Population in Mexico City. Appellants assert that 1) defendants' actions violate the terms of, and exceed the authority granted by, the Foreign Assistance Act of 1961, 22 U.S.C. § 2151 et seq. (1982 and Supp. III 1985), and 2) the Standard Clause imposes impermissible restrictions, as a condition of receiving federal funds, on appellants' first amendment right to speak about and advocate the availability and benefits of abortion and to associate with foreign persons and entities for purposes of such speech and advocacy. In addition, Planned Parenthood claims that the Standard Clause violates its first amendment rights by requiring it to espouse, circulate and enforce views with which it does not agree.
The district court granted defendants' motion to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(6), finding that 1) the Statement and Standard Clause are within defendants' statutory and administrative authority, and 2) appellants' first amendment claims present non-justiciable political questions.
We agree that defendants acted within their statutory and administrative authority; however, we conclude that the first amendment claims do not present non-justiciable political questions.
Therefore, we affirm in part, reverse in part and remand this action to the district court for adjudication of appellants' first amendment claims.
The Foreign Assistance Act of 1961, 22 U.S.C. § 2151 et seq. (1982 & Supp. III 1985), authorizes foreign assistance for, inter alia, voluntary population planning "in order to increase the opportunities and motivation for family planning and to reduce the rate of population growth." 22 U.S.C. § 2151b(b). The Act grants the President the authority to provide this assistance "on such terms and conditions as he may determine." Id. Presidential discretion is not entirely unfettered, however, for the Act prohibits the use of federal money for, inter alia, "the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions," or bio medical research relating to abortion as a means of family planning. Id. § 2151b(f)(1), (3). The President has delegated his section 2151b(b) discretionary authority to the Director of the United States International Development and Cooperation Agency, Exec. Order No. 12,163, 44 Fed. Reg. 56,673 (1979), who, in turn, has delegated that authority to the Administrator of AID, IDCA Delegation No. 1, 44 Fed. Reg. 57,521 (1979), as amended, 45 Fed. Reg. 74,090 (1980).
In August 1984, a United States delegation to the United Nations International Conference on Population in Mexico City presented the "Policy Statement of the United States of America," issued by the White House on July 13, 1984, which commits the United States to withhold federal assistance from foreign nongovernmental organizations ("NGOs") that perform or actively promote abortions, even if those activities are financed with non-federal funds. The Statement provides, in pertinent part:
The United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion. Moreover, the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations. . . .
U.S. Government authorities will immediately begin negotiations to implement the above policies with the appropriate governments and organizations.
At the time the Statement was presented, foreign NGOs were prohibited by 22 U.S.C. § 2151b(f) from using federal funds to finance abortion-related activities, but were otherwise not prohibited from engaging in those activities.
Following the presentation of the Statement, AID drafted the Standard Clause, which contains new eligibility provisions for foreign NGOs, for inclusion in family planning grants and cooperative agreements. AID administers the voluntary population planning program, in part, by entering into cooperative agreements with domestic and foreign NGOs, which, in turn, subgrant the federal funds to foreign family planning organizations that provide direct services to individuals. The Standard Clause requires every foreign NGO that receives federal family planning funds to "certify in writing that it does not perform or actively promote abortion as a method of family planning in AID-recipient countries and does not provide financial support to any other foreign NGO that conducts such activities." The Standard Clause defines "actively promot[ing] abortion" to include, inter alia, "providing advice and information regarding the benefits and availability of abortion," "encouraging abortion," and "lobbying a foreign government to legalize ...