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September 14, 1990

THE PATHFINDER FUND, et al., Plaintiffs,

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE


 The Agency for International Development (AID) requires all foreign nongovernmental family planning organizations that receive federal family planning funds to certify that they will not perform or actively promote abortion as a method of family planning. Plaintiffs, three domestic family planning organizations, contend that the requirement abridges their First Amendment rights of speech and association by effectively preventing them from joining overseas family planning groups in abortion related projects. For the reasons stated below, defendants' motion for summary judgment is granted and plaintiffs' motion is denied.


 The Foreign Assistance Act of 1961, 22 U.S.C. § 2151 et seq., authorizes foreign aid for, inter alia, voluntary population planning "in order to increase the opportunities and motivation for family planning and to reduce the rate of population growth." 22 U.S.C. § 2151b(b). While granting the President authority to furnish assistance "on such terms and conditions as he may determine," 22 U.S.C. § 2151b(b), Congress prohibited the use of funds to pay for abortions, or for any biomedical research on abortion or involuntary sterilization as a means of family planning. *fn1" 22 U.S.C. § 2151b(f).

 In 1984, President Reagan announced certain abortion-related limitations on the use of family planning foreign aid funds that went further than the fund limitation set forth in 22 U.S.C. § 2151b(f). The Reagan Administration presented these new limitations at the United Nations-sponsored International Conference on Population in Mexico in August 1984. The restrictions, which became known as the "Mexico City Policy," provide, among other things, that the United States will withhold federal assistance from foreign NGOs that perform or actively promote abortion in any manner even if those activities are financed with private 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. *fn2" 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. *fn3"

 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, *fn4" 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." *fn5" 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, ...

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