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January 15, 1980

National Conference of Catholic Bishops et al., Plaintiffs
Griffin Bell et al., Defendants.

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), *fn1" challenge the constitutionality of the Pregnancy Discrimination Act of 1978, Pub.L.No. 95-555, § 1, 42 U.S.C. § 2000e(k), *fn2" 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 *fn3" 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. *fn4" 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. *fn5" 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. *fn6" 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. *fn7" 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.

 Case or Controversy

 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 only speculate on how the plaintiffs would find out that a woman was claiming a day of sick leave for an abortion rather than for a minor respiratory ailment or was claiming medical benefits for an abortion rather than for some other surgical procedure. *fn8"

 Plaintiffs' alleged failure to provide programs in and of itself does not violate the PDA. This is because a potential violation would nor occur until an employee actually demands and is denied equal benefits, which benefits could be provided on an ad hoc basis by plaintiffs acting as self-insurers. Plaintiffs fail to allege how many, if any, of their employees are women of child-bearing age or that any of them have or would seek the limited benefits of the PDA that the plaintiffs oppose. Apparently no employee has demanded such benefits and employees of these two religious organizations are as likely to be aware of plaintiffs' opposition to abortions as they are unlikely, as a consequence of their awareness, to request such benefits. *fn9"

 In the absence of a concrete factual dispute, even plaintiffs' position is unclear. Plaintiffs' memoranda focus in part on the alleged "abuse" of their right to determine whether a mother's life is endangered. They state:


The terms of the statute do not permit employers whose moral, ethical and religious convictions require close scrutiny of the practice of abortion to make the complex yet unavoidable decision as to whether or not the given procedure indeed falls within the morally permissible class.

 Plaintiffs' Temporary Restraining Order, p. 3. They therefore imply that some abortions may be morally permissible when a mother's life is endangered. On the other hand, their exhibits on Catholic doctrine concerning abortion appear to indicate that no abortion is justified by the fact that the mother's life is "endangered" if the fetus is carried to term. Thus again, it is a matter for conjecture whether or how or under what precise circumstances plaintiffs might be in noncompliance with the PDA.

 Even if we hypothesize that a situation could arise in which the plaintiffs would be in violation of the PDA and we speculate that an employee could file a complaint with the EEOC, EEOC's reaction to such a complaint is all the more conjectural in the light of the present disarray in its position, as discussed below.

 (b) Lack of Immediacy

 In this case, the absence of a problem of sufficient immediacy underscores the lack of an actual "case or controversy," even more than the absence of an adequate factual record. The mere existence of a statute does not create a "case or controversy," particularly when, as here, the position of the government itself is far from definite and certain as to what the statute requires with the consequence that action is either unlikely or, at least, not imminent. Both plaintiffs and the amici *fn10" point out inconsistencies between the EEOC guidelines and the government's interpretation of the PDA in its memoranda, which the EEOC as co-counsel endorsed.

 The EEOC position on the meaning of the PDA is in a state of confusion and important problems of statutory interpretation and broad policy are focused in at least two areas. First, does the PDA imply that religious employers such as plaintiffs are required to provide paid sick leave only to the extent that they are required to pay for the costs of abortions as a health insurance benefit? The government's memoranda argue for this narrow reading of the exclusion. Questions and answers 35 and 36 in the EEOC guidelines, however, as does the statute itself, refer to employers in general without limitation. The EEOC interpretation in question and answer 35 expressly limits the exemption to health insurance benefits, but requires all employers to pay sick leave for elective abortions. Second, does the PDA require payment of everything including health insurance benefits for an elective abortion if complications arise? The government memoranda is in the affirmative; EEOC question and answer 36 state that the employer need not provide the health insurance benefits that would actually pay the costs of an elective abortion. These examples are typical of the conflict between the government's interpretation of the PDA and the guidelines as literally written.

 We can only speculate that the EEOC either has decided to change its recent interpretation of the PDA as reflected in the guidelines or has heeded counsels of caution from the Justice Department, which may very well be aware of the constitutional problems arising from the EEOC's interpretation of the statute. In either case, the probability that the EEOC, particularly with its staggering caseload of pending cases which is a matter of public record, will begin active enforcement of the PDA against anyone, let alone the plaintiffs, is even more conjectural. The record, as it is, does make clear that Congress carefully considered the First Amendment free exercise implications of the PDA. Consequently, at this juncture, it would be most imprudent for this court to interject itself, until the EEOC decides what the PDA requires, issues a definitive interpretation and commences active enforcement against these plaintiffs. As the Supreme Court pointed out more than thirty years ago when the Hatch Act was passed:


Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches . . . .

 United Public Workers of America v. Mitchell, 330 U.S. 75, 90-91, 67 S. Ct. 556, 565, 91 L. Ed. 754 (1947). This absence of an immediate prospect that the government *fn11" will apply this aspect of the PDA to anyone provides good reason against adjudicating matters that may be affected in uncertain ways by future events. See, International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 223-24, 74 S. Ct. 447, 448, 98 L. Ed. 650 (1954); United Public Workers of America v. Mitchell, supra, at 91.

 (c) Lack of Chilling Effect

 The plaintiffs have also claimed that the PDA is overbroad on its face, chills the exercise of First Amendment free exercise rights, and, consequently, we should hold that it is unconstitutional. We cannot accept this simplistic solution and therefore disagree. In this circuit, the Court of Appeals has perceptively noted:


The (Supreme) Court spread the justiciability question along a continuum ranging between "a general threat by officials to enforce those laws which they are charged to administer" and "a direct threat of punishment against a named (party) . . . for a completed act." Suits predicated on threats nearer the "general" pole are not justiciable; suits nearer the direct pole are.

 National Student Association v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1111 (D.C.Cir.1969) (quoting United Public Workers of America v. Mitchell, supra at 88). The Court of Appeals placed the Hershey suit at the "general threat" end of the spectrum, but then found that the chilling of First Amendment free speech rights might rise to a level that would create a justiciable exception. 412 F.2d at 1114. But even in free speech cases, the exception is narrow and the courts must apply it on a case-by-case basis. Id. at 1115. As a general principle then, merely alleging the chilling even of First Amendment rights of free speech or expression does not automatically create a justiciable case or controversy. Id. at 1106, 1114-15; see Laird v. Tatum, 408 U.S. 1, 13-14, 92 S. Ct. 2318, 2325-2326, 33 L. Ed. 2d 154 (1972). This, of course, is not a free speech case.

 The Hershey court used three factors to determine whether a claim of so-called chilling effect changed a generalized threat of possible enforcement into a justiciable case or controversy. The three factors are:


(1) the severity and scope of the alleged chilling effect of First Amendment freedoms,


(2) the likelihood of other opportunities to vindicate such First Amendment rights as may be infringed with reasonable promptness, and


(3) the nature of the issues which full adjudication on the merits must resolve; and the need for factual referents in order properly to define and narrow the issues.

 National Student Association v. Hershey, supra, at 1115. It is clear that plaintiffs cannot meet these criteria. First, the plaintiffs in an affidavit have demonstrated that they were able to maintain their religious practices by convincing their insurers to omit the coverages to which they object. Consequently, the First Amendment rights of the named plaintiffs have not been adversely affected. Second, if the EEOC, began an enforcement proceeding plaintiffs could vindicate their rights by raising their constitutional defenses before the court in such a case. Third and finally, it is not clear under the facts as they now exist whether a claim would arise or how it would arise.

 Since Hershey, the Supreme Court has narrowed the chilling effect doctrine and emphasized that the doctrine primarily concerns free speech or expression that is chilled by the existence of criminal statutes. See Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S. Ct. 2908, 2917-18, 37 L. Ed. 2d 830 (1973). Our research has not produced any authority that the chilling effect doctrine has been extended to suits such as this one that raise First Amendment free exercise problems. The Seventh Circuit rejected an argument similar to the plaintiffs' and held that when a plaintiff has the opportunity for judicial review before a statute is enforced against him that the chilling effect is avoidable. See Grutka v. Barbour, 549 F.2d 5, 9-10 (7th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1706, 52 L. Ed. 2d 394 (1977).

 The case of Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir. 1979), relied on by plaintiffs at oral argument for the proposition that First Amendment free exercise rights are subject to the same protection as are First Amendment free speech rights, is clearly distinguishable on its facts.

 (d) Lack of Ripeness

 Finally, even if the plaintiffs presented a case or controversy a challenge to the PDA at this time would also fail for lack of ripeness. This deficiency involves consideration of many of the same factors considered previously under the headings of lack of an adequate factual record and lack of immediacy. Ripeness is a matter of judicial discretion in contrast to the constitutional mandate that a case or controversy be presented. In commenting on the appropriateness of judicial restraint, which underlies this doctrine, the Supreme Court has expressed its rationale as follows:


Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

 Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967) (footnote omitted); see Environmental Defense Fund, Inc. v. Hardin, 138 U.S. App. D.C. 391, 428 F.2d 1093, 1098 (D.C.Cir.1970). To determine whether the case was appropriate for judicial decision the Court considered whether the issues were purely legal ones and whether the challenge was to final agency action. Abbott Laboratories v. Gardner, supra, 387 U.S. at 149, 87 S. Ct. at 1515.

 We have carefully considered the factor of fitness for decision. We repeat that although plaintiffs characterize their complaint as a pure question of law, the various questions of fact discussed above require extensive refinement and elaboration in order to present a mature case. Furthermore, this complaint does not involve a challenge to final agency action. Indeed, as discussed above, the EEOC, has not finally settled on its interpretation of the statute, has not initiated any action, and is unlikely to do so until it decides what the PDA requires. Likewise, the Secretary of Labor has only recently presented for public comment proposed rules, which, if finalized without change in spite of EEOC's uncertain position on the PDA, might lead to an eventual review of plaintiffs' alleged noncompliance with the PDA.

 To sum up, plaintiffs' various allegations of injury are premature and are not appropriate for judicial resolution at this time. These issues may be raised in any future suit by the EEOC or in any future administrative proceeding by the Secretary of Labor. Plaintiffs will have ample opportunity to present their constitutional defenses in the context of such proceedings, should they even take place. The present case is simply not ripe for the resolution of these issues.


 We are fully cognizant of the serious concerns of the plaintiffs and of the importance of the issues they seek to have adjudicated. Nonetheless, we are compelled to decline jurisdiction for the reason that under the facts presented, there exists no "case or controversy," which is the basis for federal jurisdiction under Article III of the Constitution.

 Accordingly, we have entered an order of dismissal without prejudice.

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