The opinion of the court was delivered by: PRATT
Plaintiffs, the National Conference of Catholic Bishops (NCCB) and The United States Catholic Conference, Inc. (USCC),
challenge the constitutionality of the Pregnancy Discrimination Act of 1978, Pub.L.No. 95-555, § 1, 42 U.S.C. § 2000e(k),
and of the Equal Employment Opportunity Commission's (EEOC) Guidelines on Sex Discrimination, 44 Fed.Reg. 23804-09 (1979) (to be codified in 29 C.F.R. § 1604.10), which interpret the Pregnancy Discrimination Act (PDA). In response to plaintiffs' First and Fifth Amendment claims for injunctive and declaratory relief, the government
has filed a motion to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted. We hold that the plaintiffs' complaint fails to meet the threshold constitutional requirement of presenting a "case or controversy" and that even if the complaint did meet this primary requirement, the case would not be ripe for adjudication. Consequently, without reaching the merits of the complaint, which raises matters of serious importance, we dismiss it for lack of subject matter jurisdiction.
In 1976, the Supreme Court in Gilbert held that Title VII of the Civil Rights Act of 1964 did not include differentiation in treatment on the basis of pregnancy within its prohibitions against discrimination on the basis of sex. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976). Congress reacted to this decision in 1978 by enacting the PDA, which extends the coverage of Title VII in order to prohibit sex discrimination on the basis of pregnancy, childbirth, or related medical conditions, in particular, in the provision of medical fringe benefits. Related medical conditions include abortions. In the light of concerns about abortions expressed by NCCB, other groups and numerous individuals, both houses of Congress considered potential First Amendment free exercise problems and, as indicated in footnote 2, compromised on the language and the exemptions in the present statute. See H.R.Rep.No.1786, 95th Cong., 2d Sess., reprinted in (1978) U.S.Code Cong. & Admin.News, pp. 4749, 4765-66; 124 Cong.Rec. S18,978 (daily ed. Oct. 13, 1978) (remarks of Sen. Williams); Id., S18,978-79 (remarks of Sen. Javits).
On April 20, 1979, the EEOC issued its "Final Interpretive Guidelines," including questions and answers, on its interpretation of the PDA. Shortly thereafter, on April 29, 1979, the Act became effective as to existing benefit and insurance programs. At the time of the hearing on the government's motion to dismiss, November 30, 1979, the EEOC had not initiated any kind of action to investigate violations of the PDA nor to enforce the PDA against anyone.
Furthermore, the EEOC had not received any private complaints under the PDA.
The plaintiffs filed their complaint on June 21, 1979, and an amended complaint on July 11, 1979.
They allege that, as employers of fifteen or more persons, both fall within the application of the PDA and are in noncompliance with the provisions thereof and with the EEOC guidelines.
An affidavit of Samuel J. Di Misa, who, as the Director of Personnel of NCCB and USCC, is responsible for plaintiffs' employee fringe benefit, health insurance, and disability benefit programs, provides the single brief and general description of the plaintiffs' insurance programs and their alleged noncompliance with the PDA. (Ex. W attached to plaintiffs' Opposition Memorandum). Di Misa's affidavit states that plaintiffs were able to convince their insurers to omit the coverage for abortions from plaintiffs' health insurance and long-term disability policies. To underscore the immediacy of their interests and their standing, as parties suffering injury, to bring this action, plaintiffs allege that USCC is an agent of a party or a party respectively, to two refugee resettlement contracts, one with the State Department, the other with the State of Florida and that these contracts are subject to termination because of plaintiffs' alleged violation of the PDA. In particular, plaintiffs allege that Executive Order No. 11,246, 3 C.F.R. 339 (1964-65 Compilation), reprinted in 42 U.S.C. § 2000e app., at 125 (1976), as amended, requires the Secretary of Labor to enforce compliance with the PDA by government contractors such as plaintiffs. Separate guidelines exist for discrimination under Executive Order No. 11,246. See 41 C.F.R. Part 60-20 (1979). Since the hearing on the motion to dismiss, the Secretary of Labor has proposed regulations under the Executive Order that would require compliance by government contractors with the PDA. See 44 Fed.Reg. 77,008, 77,016 (1979). The proposed rules which were drafted in consultation with the EEOC are open for comment until February 26, 1980. Id. at 77,006.
The plaintiffs' complaint includes three counts.
The first alleges that the PDA requires all employers subject to the Act to provide sick leave for all abortions including elective abortions contrary to plaintiffs' moral, ethical, and religious convictions and, consequently, creates an unconstitutional burden on plaintiffs' First Amendment free exercise rights. The second count asserts that the PDA requires plaintiffs to pay for all the expenses of abortions "where the life of the mother would be endangered if the fetus were carried to term" contrary to and impermissibly burdening plaintiffs' free exercise right to determine when an abortion is justifiable according to their beliefs. The third count claims that the last provision of the PDA permits businesses and unions to negotiate agreements to deny all abortion benefits but denies plaintiffs the same right in violation of the Fifth Amendment.
Article III of the Constitution requires that those who seek to invoke the power of the federal courts must demonstrate the existence of a "case or controversy" as a threshold requirement. O'Shea v. Littleton, 414 U.S. 488, 493, 94 S. Ct. 669, 674, 38 L. Ed. 2d 674 (1974). This is long-settled doctrine requiring no extensive citation of authority and is rooted in the concept of justiciability. The limitations of this doctrine on the jurisdiction of federal courts to consider cases was held to mean that federal courts are:
without power to give advisory opinions. . . . to decide abstract, hypothetical or contingent questions, . . . to decide any constitutional question in advance of the necessity for its decision, . . . or to decide any constitutional question except with reference to the particular facts to which it is to be applied . . . .
Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S. Ct. 1384, 1389, 89 L. Ed. 1725 (1945). Thus, federal courts are prevented from issuing advisory opinions when a complaint does not present sufficient concrete legal issues. United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S. Ct. 556, 564, 91 L. Ed. 754 (1947). To raise a concrete legal issue a plaintiff must demonstrate that injury or the threat of injury is both "real and immediate," not "conjectural" or "hypothetical." Golden v. Zwickler, 394 U.S. 103, 108-110, 89 S. Ct. 956, 959-960, 22 L. Ed. 2d 113 (1969). It is clear that in the instant case plaintiffs have failed to satisfy this necessary preliminary requirement.
Although a plaintiff may not need under all circumstances to wait until he is subjected to actual enforcement of a statute, see Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), the mere existence of a statute or regulation that a plaintiff reasonably believes should apply to and be enforced against him does not ordinarily create a justiciable case or controversy. United Public Workers of America v. Mitchell, supra, 330 U.S. at 91, 67 S. Ct. at 565; National Student Association v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1110 (D.C.Cir.1969). Even the "chilling" of the most protected First Amendment rights of free speech does not create a case or controversy without a "specific present objective harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1, 13-14, 92 S. Ct. 2318, 2326, 33 L. Ed. 2d 154 (1972).
(a) Lack of Adequate Factual Record Hypothetical Posture
In this case we face a question that is not presented in concrete adversarial terms. The government has not initiated and, according to the record before us, does not plan to institute any kind of proceedings against the plaintiffs. It has not developed a factual record of any kind with respect to plaintiffs' programs. Plaintiffs themselves have only described their programs and their employees in general terms, e.g., they employ "310 lay persons, a substantial number of whom are non-Catholic lay women." (Complaint, P 8). Plaintiffs have not alleged what kind of sick leave, disability, or health insurance programs they provide. We lack sufficient facts to analyze how the PDA actually impacts on the plaintiffs although they allege that it does. For example, in rejecting a rider to their group policy, they advised their carrier that they would agree to disability benefits resulting from or arising out of or during pregnancy but would exclude disability benefits resulting from voluntary abortions or sterilization for contraceptive purposes. (Ex. W-3 attached to plaintiffs' Opposition Memorandum). Apparently this exclusion from coverage applies to both sexes on a nondiscriminatory basis and is at least in part not inconsistent with Title VII. Likewise, we can ...