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National Family Planning and Reproductive Health Association, Inc. v. Gonzales

September 28, 2005


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiff, National Family Planning and Reproductive Health Association ("NFPRHA"), brings suit on behalf of its members against four defendants in their official capacities: former Attorney General John Ashcroft, former Secretary of Health and Human Services Tommy Thompson, Secretary of Labor Elaine Chao, and former Secretary of Education Rod Paige.*fn1 NFPRHA asserts that an amendment to Congress's 2005 appropriations act which attaches certain conditions to the disbursement of federal grant funds, commonly referred to as the "Weldon Amendment," is constitutionally infirm and therefore should be enjoined from taking effect. Presently before the court is NFPRHA's motion for a preliminary injunction [# 4], the resolution of which has been consolidated with a resolution of the merits of this action.*fn2 Upon consideration of the motion, the oppositions thereto, the arguments of counsel at a hearing, and the record of this case, the court concludes that the motion must be denied and judgment entered in favor of defendants.


On November 20, 2004, Congress passed the Consolidated Appropriations Act, 2005, P.L. 104-447 (H.R. 4818), which included the Department of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2005. Attached to the Consolidated Appropriations Act was an amendment, sponsored by Congressman David Weldon ("Weldon Amendment" or "the Amendment"), covering appropriations for the Departments of Labor, Health and Human Services, and Education, and including the following provision:

Sec. 507(d)(1). None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage for, or refer for abortions.

(2) In this subsection, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.

On December 8, 2004, President George W. Bush signed the Appropriations Act into law.

NFPRHA is a nonprofit membership organization comprised of "virtually all of the domestic family planning field including clinicians, administrators, researchers, educators, advocates and consumers." Compl. ¶ 5. Along with individuals, NFPRHA's membership includes "private nonprofit clinics, State, county, and local health departments, 'umbrella' family planning councils, independent, free-standing family planning clinics, hospital-based clinics, and other family planning organizations and providers." Id.

Many of NFPRHA's members administer or provide services using funds provided under Title X of the Public Health Service Act, 42 U.S.C. § 300 ("Title X"). Title X authorizes the Department of Health and Human Services to make grants to public agencies and private nonprofit entities to enable them to provide family planning services. Id. § 300(a). While Title X prohibits the use of funds distributed under its authority to pay for abortion services, see id. § 300a-6, Title X implementing regulations require that grantees "[o]ffer pregnant women the opportunity to be provided information and counseling regarding each of the following three options: (A) Prenatal care and delivery; (B) Infant care, foster care, or adoption; and (C) Pregnancy termination." 42 C.F.R. § 59.5(a)(5)(i). Title X grantees must certify that they will comply "with all Federal statutes relating to nondiscrimination," as well as "with the [Department of Health and Human Services], [Public Health Service], and [Office of Public Health and Science] terms and conditions of award, if a grant is awarded as a result of [the grantee's] application." Pl.'s Mot. for Prelim. Inj. ("Pl.'s Mot."), Ex. 1A at "Assurances"; "Certifications" (Certification No. 4, p. 13).


NFPRHA attacks the constitutionality of the Weldon Amendment on several grounds; however, the crux of its challenge is that the Amendment is unconstitutionally vague. NFPRHA claims that the Amendment fails to define either the kinds of entities subject to its conditions or the types of discrimination it precludes so that its members cannot possibly conform their conduct to the standards which the Amendment requires of funding recipients. Lacking this necessary guidance, NFPRHA argues, its members are caught between their pre-existing obligations under the Title X regulations (as well as their ethical obligations to their patients) to provide referrals for abortion services upon request, and their apparent newly-minted obligations under the Weldon Amendment to avoid "discrimination" against health care entities (including, presumably, subgrantees) that refuse to provide referrals for abortion services under any circumstances. NFPRHA asserts that in addition to its facial vagueness, the Weldon Amendment "presents an overwhelming predicament for [its] members, placing them in the midst of a regulatory and statutory crossfire that may ultimately carry sweeping and severe penalties for non-compliance." DeSarno Decl. ¶ 24. In NFPRHA's view, the Weldon Amendment is "simply too ambiguous to place a person of common intelligence on notice of what is expected under the statute, and thus is unconstitutionally vague." Pl.'s Reply at 8; see also Compl. ¶ 42. NFPRHA also claims that Weldon is constitutionally flawed because it represents both an improper exercise of Congress' spending power and an impermissible delegation of legislative authority to executive agencies.

Before addressing the merits of NFPRHA's arguments regarding the constitutionality of the Weldon Amendment, the court must address the issue of NFPRHA's standing to bring this suit.

A. Standing

The power of the federal courts to adjudicate grievances is limited to actual cases and controversies. Central to the court's determination of its own jurisdiction is whether the plaintiff has established standing to sue, a showing comprised of three elements - imminent injury, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). While causation and redressability are not at issue in this case, defendants assert that NFPRHA has failed to demonstrate that the ...

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