Appeal from a judgment of the United States District Court for the Southern District of New York (Louis L. Stanton, Judge) upholding regulations promulgated by the Secretary of the Department of Health and Human Services implementing the prohibition in Title X of the Public Health Service Act, 42 U.S.C. §§ 300 et seq., on the use of Title X funds in programs in which abortion is a method of family planning. We hold that the regulations: (i) are based on a permissible construction of the statute and are therefore within the Secretary's authority; and (ii) are constitutional.
Kearse, Cardamone and Winter, Circuit Judges. Cardamone, Circuit Judge, concurring. Kearse, Circuit Judge, dissenting in part. Judge Kearse dissents in part in a separate opinion. Judge Cardamone concurs in a separate opinion.
This appeal involves the validity of regulations promulgated by the Secretary of Health and Human Services (the "Secretary"). The statutory authority for these regulations is Section 1008, 42 U.S.C. § 300a-6, of Title X of the Public Health Service Act, 42 U.S.C. §§ 300 to 300a-41 (1982 & Supp. V 1987) ("Title X"). Section 1008 states: "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. The regulations in question were promulgated in early 1988 and constitute a divergence from past agency policy. The new regulations limit the activities of Title X grantee projects with regard to counseling and referral for abortion, require physical and financial separation of Title X projects from prohibited activities, and restrict advocacy concerning abortions by Title X projects.
In challenging the new regulations, plaintiffs raise three principal issues: (i) whether the regulations are consistent with Section 1008; (ii) whether the prohibition on counseling concerning abortion within Title X projects violates the First and Fifth Amendment rights of pregnant women; and (iii) whether the regulations on counseling and advocacy infringe the First Amendment rights of health care providers. We hold that the regulations in question are a permissible construction of the statute and do not violate the constitutional rights of women or Title X grantees.
The facts are not in dispute and are amply described in the district court opinion, State of New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y. 1988), familiarity with which is assumed. A brief recounting will therefore suffice for purposes of this opinion. Title X of the Public Health Service Act, 42 U.S.C. §§ 300 to 300a-41 authorizes the Secretary to make grants to public and private nonprofit entities to establish and operate family planning projects. It is the single largest source of federal funding of family planning services. Appellants include a number of Title X grantees -- the State of New York, which receives Title X funds through the New York State Department of Health; the City of New York; the New York City Health and Hospitals Corporation; Planned Parenthood of New York City, Inc.; Planned Parenthood of Westchester/Rockland; Medical and Health Research Association of New York City, Inc.; Health Services of Hudson County, New Jersey; and Dr. Irving Rust and Dr. Melvin Padawer, doctors who supervise Title X-funded programs, who are suing on behalf of themselves and their patients. The defendant is the Secretary of the Department of Health and Human Services.
The Secretary has the power to make Title X grants "in accordance with such regulations as [he] may promulgate." 42 U.S.C. § 300a-4(a). On February 2, 1988, the Secretary promulgated the regulations in question pursuant to Section 1008. The new regulations impact on counseling concerning abortion, geographic and administrative relationships between Title X grantees and those engaging in activities concerning abortion, and advocacy concerning abortion. There is little doubt that the new regulations were intended as a departure from prior administrative practice. While Title X funds were never permitted in the past to be used either to perform or to subsidize actual abortions, see 36 Fed. Reg. 18,465, 18,466 (1971) (codified at 42 C.F.R. § 59.5(a)(9) ("The project will not provide abortion as a method of family planning."); see also 42 C.F.R. § 59.5(a)(5) (1986), administrative interpretations at first permitted, and later required, Title X projects to provide information about, and referral for, abortions, including names and addresses of abortion clinics. See U.S. Dep't of Health, Educ. & Welfare, Program Incentives for Project Grants for Family Planning Services (Jan. 1976); U.S. Dep't of Health and Human Services, Program Guidelines for Project Grants for Family Planning Services § 8.6 (1981). Title X programs thus included "non-directive" counseling about abortion as a method of family planning. Abortion-related activities permissible under the earlier practice have been summarized as follows:
The provision of information concerning abortion services, mere referral of an individual to another provider of services for an abortion, and the collection of statistical data and information regarding abortion are not considered to be proscribed by § 1008. The provision of "pregnancy counseling" in the sense of encouraging persons to obtain abortions and the provision of transportation to persons to enable them to obtain abortions, on the other hand, are considered to be proscribed by § 1008. The test to be applied, then, appears to be whether the immediate effect of the activity in question is to encourage or promote the use of abortion as a method of family planning. If the immediate effect of the activity is essentially neutral as in the cases of mere referral or collection of statistical data, then the activity does not fall afoul of § 1008.
Memorandum from C. Conrad, Office of the General Counsel, Department of Health, Education and Welfare, to E. Sullivan (Apr. 14, 1978) (footnotes omitted) (reproduced in Brief of the Secretary of Health and Human Services as Amicus Curiae at Attachment B, Valley Family Planning v. North Dakota, 661 F.2d 99 (8th Cir. 1981) [hereinafter Memorandum of Apr. 14, 1978].
The new regulations expressly prohibit those activities that "assist" a woman to obtain an abortion, while not interfering with the right to receive information about abortion from sources other than Title X projects. See 42 C.F.R. § 59.10 (1988); see also 53 Fed. Reg. 2941-42 (1988). The regulations thus curtail counseling, nondirective or not, by Title X projects concerning abortion. In attempting to "set specific standards for compliance with the statutory requirement that none of the funds appropriated under Title X may be used in programs where abortion is a method of family planning," 53 Fed. Reg. 2922 (1988), Section 59.8(a)(1) of the regulations states that "[a] Title X project may not provide counseling concerning the use of abortion as a method of family planning." 42 C.F.R. § 59.8(a)(1) (1988). Section 59.8(a)(3) goes on to explain:
(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.
42 C.F.R. § 59.8(a)(3) (1988). The regulations thus allow a service provider to respond to a client's inquiry for information about abortion by furnishing the name of abortion providers, but only in a prescribed fashion. After a client is diagnosed as pregnant, "the project refers the woman for prenatal pregnancy care rather than providing 'options counseling,' which could violate section 1008 by influencing her choice toward abortion." 53 Fed. Reg. 2932 (1988). The discussion accompanying the new regulations explains that the limitations on "conscious weighting" of the referral lists does not prohibit the "inclusion of facilities, such as hospitals, in which abortions are performed if they are also major providers of prenatal care and other services and the referral is specifically made to the providers of prenatal care services." 53 Fed. Reg. 2938 (1988). The provision does, as noted, ban inclusion of providers whose "main function" is to provide abortions. Id.
Subsection (4) states that the regulations do not prohibit provision of information "medically necessary to assess the risks and benefits of different methods of contraception," provided no counseling with respect to abortion is furnished. 42 C.F.R. § 59.8(a)(4) (1988). Specifically, keeping on hand copies of the yellow pages that contain advertisements for and information on where to obtain an abortion, to be given to a client who asks for them, is permitted: "Keeping the yellow pages in the project office and provision of medical records to another medical provider would not be proscribed, as they are not actions that directly 'assist' a woman to obtain an abortion." 53 Fed. Reg. 2942 (1988).*fn1
The second area of change under the new regulations concerns "program integrity." Section 59.9 provides that "[a] Title X project must be organized so that it is physically and financially separate" and "must have an objective integrity and independence from prohibited activities." 42 C.F.R. § 59.9 (1988). The integrity and independence of Title X projects are to be evaluated on a case-by-case basis. That evaluation will take into account, inter alia, whether separate accounting records are maintained, whether facilities in which prohibited activities occur are physically separate from Title X facilities, and whether the personnel in the Title X project also serve in projects in which prohibited activities occur. 42 C.F.R. § 59.9(a)-(d) (1988).
The third area relates to advocacy concerning abortion. Section 59.10 prohibits the use of Title X funds for activities that "encourage, promote or advocate abortion," and sets forth the following guidelines, illustrated with examples:
(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.
42 C.F.R. § 59.10(a) (1988).
Appellants filed two separate actions, New York v. Bowen, No. 88-0701, and Rust v. Bowen, No. 88-0702, later consolidated, seeking declaratory and injunctive relief to prevent implementation of the new regulations. Appellants argued that the new regulations violated the letter and intent of Title X and worked a deprivation of First and Fifth Amendment rights. In a thorough opinion, the district court rejected appellants' contentions and upheld the regulations. Despite the Secretary's departure from past interpretations, the district court found the new regulations to be supported by "sufficiently reasonable grounds that they should not be set aside as arbitrary or capricious." State of New York v. Bowen, 690 F. Supp. at 1272. Similarly, the district court found appellants' constitutional claims to lack merit, holding that the regulations did not ...