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March 15, 1974

Katie RELF et al., Plaintiffs,
Caspar W. WEINBERGER et al., Defendants. NATIONAL WELFARE RIGHTS ORGANIZATION, Plaintiff, v. Caspar W. WEINBERGER et al., Defendants

Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GESELL, District Judge.

These two related cases, which have been consolidated with the consent of all parties, challenge the statutory authorization and constitutionality of regulations of the Department of Health, Education and Welfare (HEW) governing human sterilizations under programs and projects funded by the Department's Public Health Service and its Social and Rehabilitation Service. 39 Fed. Reg. 4730-34 (1974). Plaintiffs are the National Welfare Rights Organization (NWRO), suing on behalf of its 125,000 members, and five individual women, proceeding by class action on behalf of all poor persons subject to involuntary sterilization under the challenged regulations. Defendants are the Secretary of HEW, under whose authority the regulations were issued, 42 U.S.C. § 216, and two high-level HEW officials charged with the administration of federal family planning funds.

 The issues have been fully briefed and argued, and are now before the Court on separate motions for summary judgment by the respective plaintiffs and on the Secretary's motion for dismissal or summary judgment. Declaratory and injunctive relief is sought in both cases. The effective date of the regulations has been voluntarily deferred by the Secretary at the Court's request until March 18, 1974, to facilitate resolution of these issues.

 Congress has authorized the funding of a full range of family planning services under two basic procedures. The Public Health Service administers federal grants to state health agencies and to public and private projects for the provision of family planning services to the poor, 42 U.S.C. §§ 300 et seq., 708(a), and the Social and Rehabilitation Service provides funds for such services under the Medicaid and Aid to Families of Dependent Children programs, 42 U.S.C. §§ 601 et seq., 1396 et seq.

 Although there is no specific reference to sterilization in any of the family planning statutes nor in the legislative history surrounding their passage, *fn1" the Secretary has considered sterilization to fall within the general statutory scheme and Congress has been made aware of this position. But until recently, there were no particular rules or regulations governing the circumstances under which sterilizations could be funded under these statutes.

 Sterilization of females or males is irreversible. The total number of these sterilizations is clearly of national significance. Few realize that over 16 percent of the married couples in this country between the ages of 20 and 39 have had a sterilization operation. *fn2" Over the last few years, an estimated 100,000 to 150,000 low-income persons have been sterilized annually under federally funded programs. Virtually all of these people have been adults: only about 2,000 to 3,000 per year have been under 21 years of age and fewer than 300 have been under 18. There are no statistics in the record indicating what percentage of these patients were mentally incompetent.

 Although Congress has been insistent that all family planning programs function on a purely voluntary basis, *fn3" there is uncontroverted evidence in the record that minors and other incompetents have been sterilized with federal funds and that an indefinite number of poor people have been improperly coerced into accepting a sterilization operation under the threat that various federally supported welfare benefits would be withdrawn unless they submitted to irreversible sterilization. *fn4" Patients receiving Medicaid assistance at childbirth are evidently the most frequent targets of this pressure, as the experiences of plaintiffs Waters and Walker illustrate. Mrs. Waters was actually refused medical assistance by her attending physician unless she submitted to a tubal ligation after the birth. Other examples were documented.

 When such deplorable incidents began to receive nationwide public attention due to the experience of the Relf sisters in Alabama, the Secretary took steps to restrict the circumstances under which recipients of federal family planning funds could conduct sterilization operations. On August 3, 1973, the Department published in the Federal Register a notice of Guidelines for Sterilization Procedures under HEW Supported Programs. 38 Fed. Reg. 20930 (1973). The notice directed that the policies set forth in the guidelines be implemented through regulations to be issued by the departmental agencies administering programs which provide federal financial assistance for family planning services. Notices of proposed rule making were duly published in the Federal Register on September 21, 1973. 38 Fed. Reg. 26459 (1973). Interested persons were given an opportunity to participate in the rule making by submitting comments on the proposed regulations. Approximately 300 comments, including those of plaintiff NWRO, were received and reviewed by the Department. The final regulations here under attack were issued on February 6, 1974.

 These regulations provide that projects and programs receiving PHS or SRS funds, whether for family planning or purely medical services, *fn5" shall neither perform nor arrange for the performance of a nontherapeutic sterilization unless certain procedures are carried out. These vary depending upon whether the patient is, under state law, a legally competent adult, a legally competent person under the age of 18, a legally incompetent minor, or a mental incompetent. Briefly, they are as follows:

 (2) Legally competent persons under the age of 18 must also give such written consent. In these situations, a special Review Committee of independent persons from the community must also have determined that the proposed sterilization is in the best interest of the patient, taking into consideration (a) the expected mental and physical impact of pregnancy and motherhood on the patient, if female, or the expected mental impact of fatherhood, if male, and (b) the expected immediate and long-term mental and physical impact of sterilization on the patient. 42 CFR § 50.206(a); 45 CFR § 205.35(a) (4) (i). The Review Committee must also (a) review appropriate medical, social and psychological information concerning the patient, including the age of the patient, alternative family planning methods, and the adequacy of consent, and (b) interview the patient, both parents of the patient (if available), and such other persons as in its judgment will contribute pertinent information. 42 CFR § 50.206(b) (1, 2); 45 CFR § 205.35(a) (4) (i) (A, B). However, parental consent is not required. 42 CFR § 50.203(c); 45 CFR § 205.35(a) (5) (ii).

 (3) Legally incompetent minors must be afforded the above safeguards, and, in addition, a state court of competent jurisdiction must determine that the proposed sterilization is in the best interest of the patient. 42 CFR § 50.203(c); 45 CFR § 205.35(a) (1) (iv) (A, B).

 (4) The sterilization of mental incompetents of all ages must also be sanctioned by a Review Committee and a court. However, personal consent is not required -- it is enough that the patient's "representative" requests sterilization. 42 CFR § 50.203(a); 45 CFR § 205.35(a) (1). Although defendants interpret the term "representative" to mean a person empowered under state law to consent to the sterilization on behalf of the patient, no such definition appears in the regulations themselves.

 Plaintiffs do not oppose the voluntary sterilization of poor persons under federally funded programs. However, they contend that these regulations are both illegal and arbitrary because they authorize involuntary sterilizations, without statutory or constitutional justification. They argue forcefully that sterilization of minors or mental incompetents is necessarily involuntary in the nature of things. Further, they claim that sterilization of competent adults under these regulations can be undertaken without insuring that the request for sterilization is ...

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