which receives federal family planning funds to certify in writing that "it will not, while receiving assistance under the grant, perform or actively promote abortion as a method of family planning in AID recipient countries or provide financial support to other foreign nongovernmental organizations that conduct such activities." AID Handbook 13, effective June 19, 1987, at 4C-49. These restrictions, contained in what is known as the Eligibility Clause of the funding agreements, extends to all activities of foreign NGO, not merely projects using AID funds.
On January 19, 1989, three domestic organizations which participate in international family planning projects, filed an action in this Court challenging the statutory authority for, and the constitutionality of AID's implementation of the Mexico City Policy.
On April, 1989, this Court denied plaintiffs' motion for a preliminary injunction, at the same time staying the case until a decision by the Court of Appeals for this Circuit in DKT Memorial Fund, Ltd. v. AID, another challenge to AID's implementation of the Mexico City Policy. The DKT decision was issued on October 10, 1989, 887 F.2d 275 (D.C. Cir. 1989) [ DKT II ].
In DKT II, the Court of Appeals sustained the Eligibility Clause on the merits against all but one of the constitutional, statutory, and administrative claims made by the plaintiffs in that case. See infra.
Amici had argued in DKT II that AID's restriction on grants to any foreign NGO that performs or promotes abortion as a method of family planning might then infringe on DKT's right to associate with foreign NGOs in abortion-related projects. They maintained that the Clause crippled DKT in its efforts to initiate, with its own funds, international cooperative projects to preserve or advance abortion rights because the grant condition forbidding foreign grant recipients from receiving funds if they participate in abortion promotion buys off DKT's potential partners in international family planning projects. 887 F.2d at 294. This argument asserted that rather than to lose AID funding, DKT's potential foreign associates will withdraw from or decline to participate in abortion-related projects with DKT. Id. The Court of Appeals dismissed this claim -- that the Clause burdened the plaintiffs' constitutional rights to associate with foreign NGOs on self-funded abortion-related projects -- on ripeness grounds rather than on the merits.
On January 23, 1990, plaintiffs in the instant case amended their complaint to press the issue left undecided by the Court of Appeals on the merits. On January 29, 1990, this Court lifted the stay in the case; both parties have filed cross-motions for summary judgment; and the matter is now ripe for decision.
Plaintiffs argue that the Eligibility Clause infringes upon their First Amendment right to associate with foreign NGOs on abortion-related projects because it renders the exercise of that right more difficult. They maintain that the Clause, in effect, buys off their most effective foreign partners in family planning projects, thus violating their constitutionally protected right of freedom of association.
The constitutionally protected "freedom of association" embraces two distinct concepts, the right to "enter into and maintain certain intimate human relationships" called "freedom of intimate association," and the right to "associate for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion," called "freedom of expressive association." Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984).
The Supreme Court has recognized that the First Amendment protects the right of expressive association against both "heavy-handed frontal attacks, but also from being stifled by more subtle governmental interference," Lyng v. Int'l Union, 485 U.S. 360, 367 n. 5, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988), quoting Bates v. Little Rock, 361 U.S. 516, 523, 4 L. Ed. 2d 480, 80 S. Ct. 412 (1960). Since so much state action has the potential incidentally and indirectly to burden the right of expressive association in some remote way,
indirect restraints have been held to violate the Constitution only if they "directly and substantially" interfere with the ability to associate by "'order[ing]'" people not to associate or "'prevent[ing]'" their ability to do so or "'burden[ing]'" their ability to do so "in any significant manner."
Id. at 366, 367 n. 5. In Lyng, for example, the Court held that the refusal to extend food stamp benefits to those on strike did not infringe the striker's right of expressive association even though it made it harder for them to engage in those protected activities. Id. at 368.
Likewise, Kleindienst v. Mandel, 408 U.S. 753, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1971), teaches that the extent of the burden determines whether an indirect restriction infringes the right on expressive association. Id. at 765. In Kleindienst, the Attorney General refused to allow a Belgian Marxist journalist named Mandel to enter the United States. Suit was brought by Mandel and university professors in the United States who claimed that the decision deprived the professors of their First Amendment right to hear and meet with Mandel. While upholding the exclusion without reaching the First Amendment claim, the Court concluded that were it to have reached the constitutional claim, the existence of alternative methods of receiving Mandel's ideas, e.g. books and articles, would be relevant to balancing the First Amendment rights against governmental interests. In other words, if the burden on the right of association was slight, the Constitution would not be infringed.
Regan v. Taxation with Representation, 461 U.S. 540, 76 L. Ed. 2d 129, 103 S. Ct. 1997 (1983), provides further support for this conclusion. In that case, a public interest group applied for a section 501(c)(3) federal tax status to exempt it from paying taxes and allow contributors to deduct contributions. The application was denied because the group engaged in substantial lobbying. The group argued, among other things, that the denial violated the First Amendment by conditioning the receipt of tax-deductible contributions upon its cessation of lobbying.
A unanimous Supreme Court rejected this argument noting that tax exemptions and deductibility are a form of subsidy. 461 U.S. at 544. It also observed that the plaintiff could obtain 501(c)(4) status (exemption only) for its lobbying activities and 501(c)(3) status (exemption and deduction) for its non-lobbying activities. Therefore, the Supreme Court concluded plaintiff was simply denied a subsidy for its lobbying activities and that Congress was not required by the First Amendment to subsidize lobbying. Id. at 546. The Court suggested that the situation would be different if the Internal Revenue Service imposed stringent requirements that would "effectively make it impossible" for a 501(c)(3) organization to establish a 501(c)(3) lobbying affiliate. 461 U.S. at 544-45 n. 6; id. at 553-54 (Blackmun, J., concurring).
Nowhere, in fact, is it clearer that the right of expressive association is not absolute than when the rights of Americans to associate with foreigners are at issue. DKT II, 887 F.2d at 295, citing Palestine Information Office v. Schultz, 272 U.S. App. D.C. 1, 853 F.2d 932 (D.C. Cir. 1988). In Palestine Information Office, the State Department ordered the closing of the Washington office of the Palestine Liberation Organization. Plaintiffs, American citizens or resident aliens who staffed the Office, claimed, inter alia, that the closing infringed their right to associate with the PLO. The Court balanced plaintiffs' associational interests against the government interests concluding that the latter outweighed the former. 853 F.2d at 941.
Citing Meyer v. Grant, 486 U.S. 414, 100 L. Ed. 2d 425, 108 S. Ct. 1886 (1987), and Lamont v. Postmaster General, 381 U.S. 301, 14 L. Ed. 2d 398, 85 S. Ct. 1493 (1965), the plaintiffs assert that any increase in difficulty in associating with the foreign NGOs of their choice -- no matter how small -- infringes their constitutional right of association. Meyer and Lamont, however, stand for the unremarkable proposition that a statute that directly limits speech violates the First Amendment even if it leaves open some means of speech. Moreover, both cases involved infringements on intimate and expressive association. The Eligibility Clause does not directly limit the plaintiffs' freedom of association, and the instant action presents only claims of expressive association.
In sum, a First Amendment violation is not found if governmental action has merely made it somewhat more difficult for domestic organizations to associate with the organizations of their choice. Mem. of April 19, 1989 at 11, citing Lyng v. Int'l Union, 485 U.S. 360, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988). If, however, it "directly and substantially" interferes with plaintiffs' ability to associate with foreign NGO's, then it is reviewed under a strict scrutiny standard. Lyng, 485 U.S. at 366.
Plaintiffs support their claim of substantial interference by citing a number of examples of foreign NGOs which allegedly declined to participate in abortion-related projects with plaintiffs. However, upon examination, it appears that the Eligibility Clause has had far less impact than plaintiffs suggest.
(a) Columbia. Plaintiffs' first example concerns Pathfinder's desire to collaborate with a Colombian NGO named PROFAMILIA. Prior to 1983, Pathfinder worked with PROFAMILIA on a project involving abortion counseling and the distribution of contraceptives. Pathfinder's executive director avers that as a result of the Eligibility Clause, PROFAMILIA stopped providing abortion counseling because it feared losing AID funding for its family planning work.
But abortion is illegal in Colombia, except if there is a risk to the mother's life, see Article 343 and 344 of the Columbia Penal Code, and the president of PROFAMILIA asserts that it does not perform abortions or abortion counseling now nor has it in the past for just that reason:
It is therefore clear that for PROFAMILIA to avoid being incriminated as an accomplice in the crime of abortion that the institution not provide abortions means or information about abortion to pregnant women, either by promoters advisors or trainers, not perform "abortive procedures", nor supply abortive beverages.