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February 18, 1983

RICHARD S. SCHWEIKER, Secretary, U.S. Department of Health & Human Services, et al., Defendants; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOC., et al., Plaintiffs, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants

The opinion of the court was delivered by: FLANNERY

 This matter comes before the court on the consolidated motions of Planned Parenthood Federation of America, Inc., and National Family Planning and Reproductive Health Association, Inc., for a preliminary injunction. Plaintiffs challenge final regulations issued by the Department of Health and Human Services ("HHS") which require grantees of family planning services funded by HHS to notify a parent or guardian of unemancipated minors when prescription contraceptives are provided to the minor by the grantee. *fn1" The regulations were promulgated by the Secretary of HHS pursuant to a 1981 amendment to Title X of the Public Health Service Act, 42 U.S.C. § 300 et seq. Plaintiffs seek declaratory and injunctive relief against enforcement of these regulations and have moved for issuance of a preliminary injunction from this court. For the reasons set forth below, plaintiffs' request is granted.


 In 1970, Congress enacted the Family Planning Services and Population Research Act of 1970, Pub. L. No. 91-572, 84 Stat. 1504 (1970) which added Title X to the existing Public Health Service Act. This new title provided for federally funded family planning services, including prescription and non-prescription contraceptive drugs and devices, to all persons desiring such services. Title X was enacted in response to a growing congressional concern with the number of unwanted pregnancies in the United States, and the social and medical costs associated with such pregnancies.

 Subsequent to its enactment, Title X was amended several times. In 1981, the Act was amended to require Title X grantees to encourage family participation in Title X programs. Section 300(a) the Act was amended to read as follows:

The Secretary is authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents). To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection.

 (Amendment emphasized).

 On February 22, 1982, HHS proposed regulations to implement the new language found in § 300(a). See 47 Fed. Reg. 7600-7701 (1982). The proposed amendments to the HHS Title X grant regulations provide that grantees are required to notify the parents or guardians of an unemancipated minor, when prescription drugs or prescription devices are provided, within 10 days following the initial provision of services by the grantee. *fn2" The regulations further require that the grantee verify receipt of such notice, and without such verification, the grantee is prohibited from providing the minor with any further prescription services. *fn3" The regulations also provide that where state law requires the notification or consent of a parent or guardian to the provision of family planning services to a minor, grantees must comply with the state law. *fn4" Finally, the regulations modify the definition of "low income family" contained in 42 C.F.R. § 59.2. The modification deletes a prior provision requiring Title X projects to treat unemancipated minors who wish to receive confidential medical services on the basis of their own resources. The modification requires adolescents to be considered on the basis of their family's income. *fn5"

 Soon after the regulations became final, the plaintiffs brought this action. Plaintiffs argue that each of the new regulations is in violation of the statutory language found in Title X, and the congressional intent underlying the 1981 amendment to Title X. Plaintiffs argue, additionally, that the regulations are arbitrary and capricious. Finally, the plaintiffs argue that the regulations violate the constitutional rights of minors because they restrict the rights of mature minors to receive contraceptive services.

 The Classes

 A number of organizations and individuals have joined in these consolidated actions. The Planned Parenthood suit is brought by the Planned Parenthood Federation of America, a national organization concerned with family planning and three of its member affiliates: Planned Parenthood of Metropolitan Washington, D.C., Planned Parenthood of New York City, Inc., and Planned Parenthood of Maryland, Inc. The member affiliates are Title X grantees who provide family planning services to participants, and are subject to HHS grant regulations. Also named as a party plaintiff in the Planned Parenthood action is a physician associated with the Washington, D.C. affiliate of Planned Parenthood, and four other individuals: "Nancy Noe" a mother of a mature, unemancipated minor, "Larry Loe", a father of such a minor, and "Jane Doe" and "Mary Roe", unemancipated mature minors. *fn6"

 The second suit was brought by several organizations including the National Family Planning and Reproductive Health Association, Inc. ("NFPRHA"). NFPRHA brings this action for itself and on behalf of its members. The organization is a national non-profit corporation whose members are predominantly family planning clinics who are direct grantees receiving Title X funds. Joining with NFPRHA in its action are the Family Planning Council of Western Massachusetts, Inc., one of NFPRHA's members, the South Carolina Department of Health and Environmental Control, the Association of Planned Parenthood Professionals, Inc., an organization of health care professionals associated with programs receiving Title X funds and who provide family planning services to minors, the United States Conference of Local Health Officers, *fn7" and Steven Sondheimer, Director of the Family Planning Program at the Hospital of the University of Pennsylvania. *fn8" By order dated January 27, 1983, the Planned Parenthood and the National Family Planning cases were consolidated for the purposes of this action.

 On January 28, 1983, the Secretary moved for certification of a nationwide class. HHS requested this court to certify a class encompassing all unemancipated minors under age 18 who seek contraceptives from Title X grantees, the parents of such minors, and all grantees of Title X funds. *fn9" On February 7 and 8, plaintiffs submitted oppositions to the defendants' request and moved for certification of a more circumscribed class. Planned Parenthood moved for certification of four classes: (1) a class of Planned Parenthood member affiliates who are grantees of Title X funds and who serve unemancipated minors under age 18; (2) a class of physicians retained by member affiliates to provide contraceptive services to minors; (3) a class of parents of mature minors under age 18 who oppose the notification requirement; and (4) a class of mature minors under age 18 who wish to receive contraceptive services from Planned Parenthood without their parents being notified. NFPRHA moved to narrow the class, in its suit only, to members of the organization "consisting of family planning entities and persons receiving funding under Title X".

 The court finds that plaintiffs' request to define the parameters of the action should be granted. The court finds, additionally, that plaintiffs' suggested classes comply with the requirements of Fed. R. Civ. P. 23 (a). The membership of each of plaintiffs' classes is so numerous as to render impracticable joinder of all members of each class. Additionally, there are clearly questions of law and fact at issue that are common to the members of each class. If, for instance, the Secretary has acted in excess of his statutory authority, he has acted to the detriment of each member of the five classes plaintiffs seek to represent. The alleged unlawfulness of the regulations clearly presents questions of fact and principles of law identical to each member within each respective class.

 Finally, the claims of the named plaintiff representatives of each class are typical of the claims of the members of their respective classes. By limiting their class to parents and minors who oppose the regulations at issue, the plaintiffs have avoided the difficulty of including among their class individuals who do not share an identity of interest with the class.

 The court also finds that the representative parties will fairly and adequately protect the interest of each member of the respective classes. Named plaintiffs have interests co-extensive with, and not antagonistic to, absent class members, and each plaintiff's attorney is clearly qualified, experienced and able to conduct this litigation.

 The court finds, in addition, that plaintiffs have met the requirements of Fed. R. Civ. P. 23(b). Rule 23(b)(2) provides, "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding final declaratory relief with respect to the class as a whole." By promulgating the regulations, the Secretary has acted in a way that is uniformly applicable to the members of each class. Accordingly, the court finds that each class satisfies the terms of Fed. R. Civ. P. 23(b)(2) and that certification of the classes is appropriate.


 The defendant objects to the standing of each of the individual, organizational, and governmental entities who bring this consolidated action. For the purposes of this motion, the court finds it unnecessary to address the objections raised by the Secretary with respect to each of the plaintiffs. This court finds that numerous plaintiffs are properly before this court, and are proper representatives of their respective classes.

 To be afforded standing, a plaintiff must establish the existence of a genuine controversy of which it is the proper party to bring before the court. Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). This requirement is typically divided into a number of separate inquiries: whether plaintiffs will suffer some injury in fact as a result of the challenged conduct; whether plaintiffs are within the "zone of interests" intended to be protected by the statute; and whether there is a causal connection between the threatened injury, and the regulations or rule at issue. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).

 This court concludes that the class consisting of unemancipated mature minors, as well as that consisting of the Planned Parenthood Federation and NFPRHA member affiliates who are direct and indirect grantees of Title X funds, have standing to bring this action. *fn10" With respect to the unemancipated minors, this court considers it clear beyond dispute that this class will suffer an increased risk of pregnancy as a result of these regulations. The Secretary argues, however, that the named minors do not have standing, and presumably cannot serve as representatives of a class of minors, because the threat of injury which they allege is too speculative and hypothetical to support standing. The Secretary points out, needlessly this court believes, that notification does not cause pregnancy. The Secretary states that the notification requirement might not deter minors from attending a clinic, or that minors, even if deterred from attending a clinic, may obtain prescriptive contraceptives elsewhere, or rely upon non-prescriptive contraceptives. Finally, the Secretary suggests that any injury is speculative because a minor deterred from attending a family planning clinic, and unable to obtain contraceptives elsewhere may, by "an intervening act of free will" abstain from intercourse. Therefore, the Secretary concludes, the challenged regulations will not cause an increase in the number of unwanted teenage pregnancies, and minors cannot demonstrate an injury sufficient to confer standing.

 The Secretary misconstrues the nature of the injury needed to support standing. A minor need not show that she will become pregnant as a result of the government's regulations, but only that her risk of becoming pregnant will increase materially. See Cutler v. Kennedy, 475 F. Supp. 838, 848-49 (D.D.C. 1979). The statute giving rise to the regulations at issue here is designed to protect minors against the risk of injury, and minors need not prove, for standing purposes, that the regulations will result in unwanted pregnancies. See City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975).

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