Title X Family Planning Program Proposals ( 1987 )

Title X Family Planning Program Proposals
Section 1008 of T itle X prohibits Title X programs from counseling and making referrals related
to abortion as a method o f family planning, except where such counseling and referrals are
medically indicated. Such a limitation on the use o f government funds does not violate the
Constitution.
The Secretary o f Health and Human Services is authorized to prohibit Title X programs from
engaging in abortion advocacy and to require that organizations engaged in both T itle X
programs and abortion-related programs segregate the two. Such requirements do not violate
the Constitution.
July 30, 1987
M em orandum O p in io n for th e S e n io r A s s o c ia t e C o u n s e l
to th e P r e s id e n t
I. Introduction and Summary
You have requested the opinion of this Office on three proposals to modify
the administration of the Title X family planning program. This memorandum
confirms our earlier, oral advice to you that the Secretary of Health and Human
Services may implement these proposals by appropriate regulations promul­
gated pursuant to Title X to be effective on or after October 1, 1987.1
The three proposals relating to Title X are as follows:2
(1) Title X programs would be prohibited from providing coun­
seling and referral for abortion services as a method of family
planning;
(2) Title X programs would be prohibited from engaging in
abortion-related advocacy activities; and
(3) Organizations maintaining both Title X programs and pro­
grams that provide abortion-related services would be required
1 U nless HHS has adopted contrary regulations or special statutory requirem ents exist, such regulations
w ould not be subject to the notice-and-com m ent requirem ents o f the A dm inistrative Procedure Act because
o f the grant exception in 5 U.S.C. § 553(a). W e have not, how ever, exam ined any specific questions relating
to the procedural requirem ents for prom ulgating regulations under Title X, or considered w hether it w ould be
pm dentially advisable to prom ulgate these proposals by notice-and-com m ent rulemaking o r as revisions to
the existing internal departm ental guidelines.
2 There is a fourth proposal relating to m edical research by the Surgeon General w hich we have not
addressed.
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to segregate the abortion-related programs from the Title X
programs.
In brief, our conclusions are as follows. First, we believe that the proposal to
restrict counseling and referral for abortion services as a method of family
planning is mandated by § 1008 of Title X, but that, in accordance with current
regulations, such counseling and referral should be permitted where medically
indicated. Second, we believe that the Secretary of HHS has ample statutory
authority to prohibit abortion advocacy by Title X programs. Third, we believe
that the Secretary of HHS has ample authority to require reasonable physical
and other segregation between Title X programs and programs providing
abortion-related services. Finally, we believe that the three proposals can be
implemented in a constitutional manner.
II. Analysis
A. A bortion Counseling and R eferral A ctivities
We believe that § 1008 compels the Secretary of the Department of Health
and Human Services (HHS) to prohibit in Title X programs all counseling and
referrals related to abortion as a method of family planning, although abortion
counseling and referrals should not be prohibited where they are medically
indicated. Accordingly, § 8.6 of the HHS’s current Program Guidelines fo r
Fam ily Planning Services, which requires abortion counseling and referrals in
circumstances in addition to where medically indicated, is contrary to the
statutory prohibition in § 1008 and should be amended.
Section 1008 of the Family Planning Services and Research Act of 1970,
Pub. L. No. 91-572 (codified at 42 U.S.C. § 300a-6), provides:
None of the funds appropriated under this title shall be used in
programs where abortion is a method of family planning.
We believe that this prohibition prevents any program receiving Title X funds
from carrying out any activity related to abortion as a method of family
planning. We understand the term “abortion as a method of family planning” to
include all abortions except where the abortion is medically indicated.
We believe that our construction of § 1008 is supported by both the express
language of the provision and by its legislative history. Although HHS has
construed this section to permit family planning counseling concerning abor­
tion and family planning referrals for abortion, we believe that this construc­
tion is erroneous. In any event, even if HHS’s previous interpretation was
reasonable, it does not preclude HHS from promulgating regulations on the
basis of the construction advanced here given that this interpretation is itself
reasonable.
On its face, § 1008 prohibits the granting of government funds to a program
in which abortion is a method of family planning. The plain meaning of this
language would seem to be that a program that offers any family planning
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services related to abortion is a program in which abortion is a method of
family planning. In particular, a program that includes abortion among the
family planning options about which it counsels women is one in which
abortion is a method of family planning. Because a large part of family
planning consists of counseling or other forms of information distribution, it
cannot be said that counseling is not “family planning.”3
The view that the plain meaning of § 1008 prohibits abortion counseling and
referral is supported by its legislative history. Preeminent among this legisla­
tive history is the lengthy speech that Representative Dingell, the sponsor of
§ 1008, delivered on the subject of abortion and family planning. Representa­
tive Dingell made it clear that abortion was simply not a proper method of
family planning. He stated:
There is a fundam ental difference between the prevention of
contraception and the destruction of developing human life.
Responsible parenthood requires different attitudes toward hu­
man life once conceived than toward the employment of preventive
contraceptive devices or methods. What is unplanned contraceptively
does not necessarily become unwanted humanly . . . .
I f there is any direct relationship between fam ily planning and
abortion, it would be this, that properly operated fam ily p la n ­
ning program s should reduce the incidence o f abortion.
116 Cong. Rec. 37375 (1970) (emphasis added). Representative Dingell’s
clearly delineated contrast between abortions and preventive contraceptive
methods demonstrates that he did not believe abortion was a proper method of
family planning. Permitting organizations to provide counseling or referrals
with respect to abortion would be squarely at odds with a view that abortion is,
unlike contraception, not a method of family planning but a practice which
Congress believed family planning services would reduce.
The Conference Committee Report confirms the dichotomy between abor­
tions and preventive contraception. It states:
[i]t is, and has been, the intent of both Houses that the funds
authorized under this legislation be used only to support preven­
tive family planning services, population research, infertility
services, and other related medical, informational, and educa­
tional activities. The conferees have adopted the language con­
3 M oreover, w hen C ongress wished to craft a more narrow prohibition limited to the use of federal funds to
provide abortions, it knew how to do so See Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979) (prohibiting
funds appropriated for M edicaid program from being used to provide abortions). In § 1008, however,
Congress chose broader language that prohibited funds from being used to support any program where
abortion is a method o f fam ily planning. W e believe that the plain meaning o f § 1008 becom es clearer if one
imagines a sim ilar provision that prohibited federal funds from being received by a program in which a
particular form o f contraception is a m ethod o f family planning. It would seem absurd to conclude that such
a prohibition perm itted fam ily planning counseling about the proscribed form o f contraception.
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tained in section 1008, which prohibits the use of such funds for
abortion, in order to make clear this intent.
H.R. Conf. Rep. No. 572, 91st Cong., 1st Sess. 2 (1970) (emphasis added).
Although the Conference Report authorized “medical, informational and edu­
cational activities,” these activities must be “related” to “preventive family
planning services.” Counseling concerning abortion is manifestly not related to
preventive family planning services, given the explicit contrast between abor­
tion and family planning that Representative Dingell drew on the floor.
Moreover, in his floor statement, Representative Dingell explicitly stated
that the prohibition was not limited to the provision of abortions:
With the “prohibition o f abortion” amendment — title X, sec­
tion 1008 — the committee members clearly intend that abor­
tion is not to be encouraged o r prom oted in any w ay through
this legislation. Programs which include abortion as a method of
family planning are not eligible for funds allocated through this act.4
116 Cong. Rec. 37375 (1970) (emphasis added).
We believe that counseling or referrals concerning abortions are clearly
actions that promote abortion. The purpose of counseling programs for preg­
nant women is to provide information upon which a course of action may be
based. The intended effect of that education is that a pregnant woman select
and act upon some of the information and referrals offered. Where abortion
counseling and referral comprise a part of the counseling, a program is best
construed to include abortion as “a method of family planning” because the
intended and actual effect of the counseling and referral is to provide the option
of abortion with the natural expectation that some pregnant women will select
that method of family planning. Indeed, counseling concerning abortion or any
other subject would be pointless in the absence of an expectation that some
people will act on the information received.
We are aware that HHS has adopted a construction of § 1008 which permits
counseling and referrals concerning abortions as a method of family planning.
See, e.g., Memorandum from Cayetano Santiago, Division of Public Health
Services Delivery, to the Office of General Counsel (Mar. 4, 1982) (1982
Memorandum); Memorandum from Senior Attorney, Public Health Division to
Elsie Sullivan, Assistant for Information and Education Office for Family
Planning, HHS (Apr. 14,1978) (1978 Memorandum). Under this construction,
counseling or referrals concerning abortion as a method of family planning are
not proscribed under Title X because, according to HHS, neither the purpose
nor the principal effect of such counseling or referrals is to promote abortion.5
4 It should also be n o ted that, in enacting Title X, C ongress fully understood that family planning included
a w ide range o f services, including counseling and referrals. See S. R ep. No. 1004, 91st Cong., 2d Sess. 4
(1970). Therefore, § 1008’s reference to fam ily planning should, in the absence o f contrary evidence, be
deem ed to include all such forms of fam ily planning. A ccordingly, w hen a program offers counseling or
referrals concerning abortion the program is one in w hich abortion is one o f the m ethods o f fam ily planning.
5 In the 1978 M em orandum , the test fo r perm itting an abortion-related activity is the immediate effect test,
i.e., ab o rtion-related activ ities may be fu n d ed by T itle X unless they have the im m ediate effect o f promoting
abortion. 1978 M em orandum at 13.
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1982 Memorandum at 13. Presumably, this legal construction is the basis for
the requirement in the present guidelines that counseling and referrals for
abortion must be offered, although, at most, this construction would appear
only to favor perm itting rather than requiring such counseling.6
We believe that the HHS’s “purpose or principal effect” test is not warranted
by the legislative history, and even if it were, counseling concerning abortion
as a method of family planning would be invalid under that test because it
would have the “purpose or principal effect” of promoting abortion. First, there
is simply nothing in the legislative history of § 1008 to suggest the “purpose or
principal effect test” in this context.7 The language of the statute simply
prohibits abortion as a method of family planning. Moreover, the legislative
history makes clear that any activity that promotes abortion as a method of
family planning is prohibited. Accordingly, if the activity has the effect of
promoting abortion as a method of family planning it is prohibited by the
statute even if such promotion is not the activity’s purpose or principal effect.
There is simply no value or goal adduced elsewhere in the statutory scheme
which supports the introduction of a limiting principle such as the “purpose or
6 These guidelines provide:
Pregnant w om en should be offered inform ation and counseling regarding their pregnancies.
Those requesting inform ation on options for the managem ent o f an unintended pregnancy are to
be given non-directive counseling on the follow ing alternative courses o f action, and referral
upon request:
Prenatal care and delivery
Infant care, foster care, o r adoption
Pregnancy term ination.
Program Guidelines fo r Project Grants For Family Planning Services at 13.
7 The M em orandum from C arol Conrad, A ttom ey-A dviser, Public Health Division, to Ernest G. Peterson,
Associate Bureau D irector, O ffice o f Planning (M ar. 19, 1976), contends that the purpose o r principal effect
test is supported by certain rem arks in a debate over provisions in Pub L. No. 94-63, 89 Stat. 304 (1975), to
am end § 1004 o f T itle X, w hich authorizes the Secretary to make grants “to promote research in the
biom edical, contraceptive developm ent, behavioral and program im plem entation fields related to family
plan n in g /' The only substantive amendm ent to this provision was to permit the Secretary to conduct such
research at HHS as well as m aking grants to outside organizations. See Pub. L. No. 94-63, § 202(c), 89 Stat.
at 306. In the course o f the discussion o f the am endm ent, Representative Baum an com plained that HHS was
not carrying out the intent o f § 1008 w hich he saw as “e n fo rc in g ] a wall o f separation between family
planning and abortion.” 121 Cong. Rec. 17218 (1975). He therefore asked and received assurances that
§ 1004 would not include research on abortion techniques. Id. at 17219. N oting that a 1971 H ouse Conference
Report stated that § 1008 should not prevent research into the causes o f abortion, R epresentative Baum an
asked:
But I would like to make clear that this language does not allow the HEW to purchase or grant
contracts w hose purpose or principal effect would be to develop new techniques for perform ing
abortions. W ould I be correct in assum ing that this language does not allow such research?
M r. Rogers: That is correct, a s a m ethod o f fam ily planning.
Id. (em phasis added).
G iven the context in which they were m ade, these rem arks m anifestly cannot be construed as a qualification
and lim itation on § 1008’s prohibition o f abortion as a m ethod o f fam ily planning. First and forem ost, these
rem arks do not constitute legislative history concerning § 1008 or an am endm ent to that section, but rather to
an am endm ent to § 1004 that had nothing to do w ith abortion. The view s of a subsequent Congress form a
dubious basis for inferring the intent o f an earlier legislative action, and clearly cannot override a reasonable
interpretation o f a statute based on its language and contem poraneous legislative history. See Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 (1980). M oreover, because he clearly believed
that § 1008 should be given a broader scope, one m ust com pletely ignore the purpose o f Representative
B aum an's remarks to take these as an intended lim itation on the meaning of § 1008.
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principal effect test” to § 1008’s unequivocal expression of disapproval of
abortion as a method of family planning. HHS’s construction has in effect
created a balancing test where there are no values to balance.
Second, we have serious doubts that counseling for abortions as a method of
family planning would even pass muster under the “purpose or principal
effect” test. The principal and foreseeable effect of counseling on abortions as
a method of family planning is that some women will choose abortion as such a
method. Indeed, it is impossible to discern what other effect such counseling
could have or could be intended to have. In addition, we do not believe that the
present guidelines are saved from inconsistency with the mandate of § 1008 by
virtue of the fact that they contemplate only “nondirective” counseling. It is
probable that Congress intended that all family planning counseling be
nondirective, but that does not mean that nondirective abortion counseling is
consistent with the prohibition in § 1008.
Although HHS’s construction of § 1008, which requires counseling on abor­
tions or referrals as a method of family planning, is fairly well-established, we
do not believe that this construction should be deemed binding on this or any
future administration.8 It is a well-settled axiom of administrative law that an
administrative construction of a statute even if consistently advanced for a long
period of time is binding only to the extent it is supported by valid reasons. See
Burnet v. C hicago Portrait C o., 285 U.S. 1,21 (1932). While weight should be
given to an agency’s expertise in interpreting a statute it is charged with
executing, deference to an administrative interpretation “is constrained by [the]
obligations to honor the clear meaning of a statute, as revealed by its language,
purpose and history.” See International Brotherhood o f Teamsters v. Daniel,
439 U.S. 551, 556 n.20 (1979). As we have suggested above, we simply do not
believe the “purpose or principal effect” test is warranted given the language,
manifest purpose and legislative history of § 1008.
Moreover, although we have concluded that HHS’s past interpretation is
incorrect as a matter of law, such a conclusion is not necessary in order to
promulgate regulations based on the interpretation of § 1008 advanced here.
While the reasonableness of a particular construction of a statute may be
supported by the fact that such construction is contemporaneous with the
enactment of the statute and has been consistently adhered to since that time, a
subsequent and different administrative construction is not rendered unreason­
able by virtue of its inconsistency with the former construction. In other words,
a previous interpretation of a statute no matter how reasonable cannot be
deemed to preclude subsequent administrative constructions so long as they are
themselves reasonable. A fo rtio ri, an erroneous previous interpretation does
not preclude a subsequent correct one.
8 HHS form ally addressed the issue o f counseling and referrals m the 1978 M emorandum , supra Although
before that tim e it addressed a number o f related issues, such as the provision of Title X funds for scientific
research, see M em orandum for Jim G oodm an, Public H ealth Division, to Louis M. H eilman, Deputy
A ssistant Secretary for Population A ffairs (Oct. 5, 1972), these opinions constituted ad hoc approaches to
p articu lar problem s. T he 1978 M emorandum was the first to advance a com prehensive theory for the
constru ctio n o f § 1008 in the form of the im m ediate effect test.
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The Executive’s permanent discretion to construe statutes it is charged with
executing in novel but reasonable ways is a consequence of both the constitutional
requirement of the enactment of legislation and the constitutional underpinning of
the delegation doctrine. First, a prior administrative construction of the statute no
matter how reasonable cannot permanently modify the meaning of the underlying
legislation because an administrative construction does not meet the procedural
requirements in Article I for the passage of binding legislation. See INS v. Chadha,
462 U.S. 919 (1983). Accordingly, a particular construction of a statute cannot limit
the range of possible constructions that a subsequent administration may adopt.
Second, a central premise of the delegation doctrine is that the popularly elected
Executive may implement his policy choices within the discretion the statute
entrusts to him. See Chevron U.S.A. v. Natural Resources Defense Council, 467
U.S. 837, 865 (1983).9 See also M otor Vehicle Manufacturers A ss’n v. State Farm
Automobile Insurance Co., 463 U.S. 29, 45 (1983) (Congress’ ratification of an
agency construction through failure to change the underlying statute does not
incorporate agency construction into statute). If a prior administrative construction
were permitted to circumscribe the discretion of subsequent administrations, the
authority Congress delegated would not be exercised in a manner responsive to the
popular will.
Accordingly, even if § 1008’s meaning were less plain than we believe it to
be and the legislative history less clear than it appears to be, this administration
would have the discretion to interpret § 1008 to prohibit abortion counseling
and referrals.10 Section 1008 prohibits abortion as a method of family planning
and nowhere in the statute is any countervailing policy suggested. Thus, the
9 The Chevron court in relevant part stated:
Judges are not experts in the field, and are not part o f either political branch of the governm ent.
C ourts must, in some cases, reconcile com peting political interests, but not on the basis of
ju d g e s' personal policy preferences. In contrast, an agency to which C ongress has delegated
policym aking responsibilities may, within the limits o f that delegation, properly rely upon the
incum bent ad m in istratio n 's view s o f wise policy to inform its judgm ents. While agencies are not
directly accountable to the people, the Chief Executive is, and it is entirely appropriate fo r tkis
political branch o f the government to make such policy choices — resolving the competing
interests which Congress itself either inadvertently did not resolve, or intentionally left to be
resolved by the agency charged with the administration o f the statute in light o f everyday
realities
W hen a challenge to an agency construction o f a statutory provision, fairly conceptualized,
really enters on the wisdom o f the agency’s policy, rather than w hether it is a reasonable choice
w ithin a gap left open by Congress, the challenge must fail. In such case, federal ju d g es — who
have no constituency — have a duty to respect legitim ate policy choices made by those who do.
467 U.S. at 865 (em phasis added)
10 Im plem enting the mandate o f § 1008 by prohibiting abortion counseling and referral as a method of
family planning is also constitutional While abortion counseling and referral are constitutionally-protected
activities, the governm ent is under no constitutional obligation to subsidize those activities. W hat the
governm ent is forbidden to do under the doctrine o f "unconstitutional conditions” is to require that a grantee
not engage in a constitutionally-protected activity with nongovernm ental funds as a condition of receiving
governm ental funds o r benefits As discussed more fully in the subsequent sections of this mem orandum , so
long as any restrictions on abortion counseling and referral are lim ited to the T itle X programs them selves (as
opposed to other program s conducted by the sam e organization) and are a reasonable im plem entation o f the
statutory prohibition, no “unconstitutional condition” will be created
83
administrator of the statute has discretion to effectuate this prohibition in any
way that is reasonable and consistent with the statutory scheme.11
We reiterate, however, that the prohibition on abortion counseling and
referrals should not apply when abortion is medically indicated. Section 1008’s
prohibition is limited to abortion as a “method of fa m ily planning.” Abortions
that are medically indicated are not a method of family planning but rather are
medical procedures. This view is embodied in 42 C.F.R. § 57.5(b)(1) which
requires that Title X grantees “provide for medical services related to family
planning . .. and necessary referral to other medical facilities when medically
indicated.”12 Accordingly, limiting the implementation of § 1008’s prohibition
to abortion as a method of family planning makes it unnecessary to address any
statutory and constitutional questions that would need to be resolved before
this regulation could be changed.13
B. A bortion A dvocacy
The previous section of this memorandum concluded that § 1008 mandates
that Title X programs be prohibited from providing counseling and referral for
abortion services as a method of family planning. That statutory analysis is
equally applicable to the proposal to prohibit Title X programs from engaging
in abortion-related advocacy activities. Section 1008 — particularly when read
against the background of its legislative history — furnishes HHS with an
ample mandate to prohibit Title X programs from in any way promoting
abortion as a method of family planning, and abortion advocacy is clearly a
form of promoting abortion. The only caveat we would cite is that, for reasons
noted above, guidelines should not be drafted so broadly as to prohibit advo­
cacy of abortion when abortion is medically indicated.
In addition to being authorized by the statute, a prohibition on abortion
advocacy would be constitutional. Although abortion advocacy is a form of
expression protected by the First Amendment, see Bigelow v. Virginia , 421
U.S. 809 (1975) (statute making it a misdemeanor to sell or circulate any
11 O f course issuing these new guidelines or new directives would represent a change in policy, and HHS
w ould have to supply a ‘“ reasoned a n aly sis’” o f why it is changing its position. See Motor Vehicle
Manufacturers A ss’n v. State Farm M utual Automobile Insurance, 463 U .S. 29, 57 (1983) (quoting Greater
Boston Television Corp. v. FCC, 444 F .2 d 841, 852 (D.C. C ir. 1970), cert, denied, 403 U.S. 923 (1971)).
A lthough changed circum stances are not needed to supply the basis for such a change in position, see 463
U .S. a t 157, th e agency m ust offer some reaso n for the action it undertakes.
12 The construction o f § 1008 em bodied in this regulation is supported by the legislative history. For
instan ce, in h is lengthy speech on the flo o r. R epresentative D ingell contrasted abortion as a method o f family
plan n in g w ith abortions perform ed for m ed ical reasons. See 116 Cong. R ec. 37379 (1980).
13 L im iting the prohibition on abortion a s a method o f fam ily planning is also advisable to avoid conflict
w ith Valley Family Planning v. North Dakota , 661 F.2d 99 (8th Cir. 1981). In that case, the U.S. C ourt of
A ppeals for the E ighth C ircu it invalidated a state statute th a t prohibited federal funds passing through a state
treasu ry from being used as family planning funds by any agency that perform s, refers o r encourages abortion
o n the gro u n d th at the statute conflicted w ith Title X o f the Public H ealth Service A ct. The specific conflict
the co u rt identified w as that the flat prohibition on abortion was inconsistent with “T itle X 's m andate that
com prehensive health care provided, in clu d in g referrals to other services when medically indicated .” 661
F .2d a t 102 (em phasis added).
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publication encouraging or promoting the procuring of an abortion declared an
infringement of speech), the government is under no obligation to subsidize
particular forms of expression. See Regan v. Taxation With Representation o f
Washington, 461 U.S. 540, 546-547,599 (1983) (in granting tax exemption to
certain nonprofit organizations that do not engage in lobbying activities, Con­
gress simply chose not to pay for nonprofit corporation’s lobbying out of public
funds, and did not regulate any First Amendment activity).
Accordingly, while an organization may have a constitutional right to speak
in favor of abortion, it does not have a right to have its advocacy subsidized by
the federal government. Thus, the government can prohibit programs receiving
Title X funds from spending those funds to promote abortion. On the other
hand, the government cannot preclude organizations whose programs receive
Title X funds from using nongovernmental resources in other programs to
advocate abortion.14
C. Segregation o f Title X Program s from Abortion-Related Programs
The statutory issue presented by the proposal to segregate abortion-related
programs from Title X programs is the program-specific language of Title X’s
abortion restrictions. As interpreted by the Supreme Court in Grove City
College v. B ell, 465 U.S. 555 (1984), and its progeny, such language has been
construed in accordance with its plain meaning — restrictions apply to the
program only, not to the organization within which that program exists. The
constitutional issue is closely linked to the statutory issue: the government may
refuse to subsidize the exercise of a constitutional right (such as abortion
advocacy), but it may not refuse to provide other government benefits on the
grounds that such a constitutional right is being exercised. Requiring program
segregation could be viewed as burdening an organization that exercises rights
that have been held by the Court to be constitutionally-protected and thereby
indirectly conditioning the grant of government benefits on relinquishment of
constitutional rights. We conclude, however, that HHS may require reasonable
segregation between Title X programs.
14 It should be noted, how ever, that the fact that governm ent is not required to subsidize abortion advocacy,
does not mean that T itle X funds could n ecessarily be used to subsidize anti-abortion advocacy. First, there is
some question — even given § 1008 — w hether the use o f Title X funds for anti-abortion advocacy is w ithin
the scope o f the statute. Second, w hile the C onstitution does not require the governm ent to subsidize abortion
advocacy, if Title X regulations were to perm it anti-abortion advocacy while forbidding pro-abortion
advocacy, they m ight be subject to challenging as a form o f unconstitutional view point discrim ination. Cf.
Regan v. Taxation With Representation o f Washington, 461 U.S. S40, 548 (1983) (while C ongress did not
violate appellee’s constitutional rights “by declining to subsidize its First A mendment activities,” a different
case w ould be presented “if Congress w ere to discrim inate invidiously in its subsidies” ). By noting the
caveat, how ever, we do not m ean to suggest necessarily that a m ere negative reference to abortion in the
course of family planning counseling — for instance, an observation by the counselor that one o f the virtues
o f preventive fam ily planning is that it avoids the medical risks entailed by an abortion — should be view ed
as “anti-abortion advocacy” and thus trigger these statutory and constitutional concerns.
85
In G rove City, supra, the Supreme Court held that the language in § 901(a)
of Title IX of the Education Amendments prohibiting sex discrimination in
“any education program or activity receiving Federal financial assistance”
meant that the sanction imposed by Title IX — the cut-off of the federal student
grants provided by the statute — could only be imposed on the program
receiving the financial assistance, not on the institution or organization of
which that program was a part. On the facts of Grove City, the Court held that
the relevant “program” was the financial aid program and not Grove City
College as a whole.
The construction in Grove C ity of the phrase “program” in Title IX has been
applied by the Supreme Court and by lower federal civil rights statutes which
prohibit discrimination in programs receiving federal assistance. See, e.g., U.S.
D e p ’t o f Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986) (§ 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794). Although Title X is not a civil
rights statute on the model of Title IX of the Education Amendments, see id. at
600 n.4, there is no reason to believe that the term “program” in Title X should
be interpreted any differently than it was interpreted by the Supreme Court in
G rove City. Thus, the prohibition in § 1008 on the use of funds where abortion
is a method of family planning must — as the statute expressly provides — be
applied only to the specific program at issue.
In assessing the range of possible guidelines in light of the program-specific
language of § 1008, it is useful to view several hypothetical proposals along a
continuum. At one extreme, for instance, we believe that a proposal which
would require that each Title X program maintain separate accounting records
would be entirely consistent with the program-specific language of § 1008. To
ensure compliance with the congressional mandate in § 1008, HHS must, at the
very least, be able to determine that there is a distinct “program” providing
family planning services, and requiring separate accounting records would
seem to be an eminently reasonable means of ensuring that HHS will have the
means to make that determination.
On the other hand, a proposal that separate entities be established to conduct
the Title X program would fall at the other extreme of the continuum. While
G rove City does not provide criteria for defining a “program,” it does establish
the principle that “program” does not mean “organization” or “institution.”
Moreover, it appears that the statutory requirement of program-specificity is
met notwithstanding the fact that the program has links with other programs
within an organization. As the Supreme Court observed in Paralyzed Veterans,
supra: “In G rove City, despite the arguably ‘indissoluble nexus’ among the
various departments of a small college, we concluded that only the financial aid
program could be subject to Title IX.” 477 U.S. at 611.
To require that a Title X program be limited to a separate corporation or
other distinct juridical entity would be, in effect, to require that it be conducted
by a separate organization. As such, it would be inconsistent with Grove C ity’s
construction of the term “program.” In G rove City itself, for instance, the Court
held that the financial aid department was a separate “program” within Grove
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City College, although it was apparent from the facts that the financial aid
department had no juridical identity apart from Grove City College. Lower
court decisions have similarly held that various activities constituted “pro­
grams” without even addressing whether such activities were conducted within
a separate juridical entity. See, e.g., Jacobson v. D elta Airlines, Inc., 742 F.2d
1202 (9th Cir. 1984) (airlines service to small communities was a separate
program), cert, dism issed, 471 U.S. 1062 (1985); O ’Connor v. Peru State
College, 781 F.2d 632 (8th Cir. 1986) (physical education department was
separate program within college).15
We also think that a very extreme requirement of functional separation
would be at odds with the program-specific language of § 1008. If total de ju re
separation cannot be required between different programs, then total de fa cto
separation cannot be required either. Again, it is useful to advert to G rove City
and its progeny. In Grove City, the Court did not even inquire as to whether
separate physical facilities existed or whether the financial aid program had its
own full-time staff that did not perform work in other college programs.
Similarly, in Jacobson v. Delta Airlines, supra, the Court held that the small
community service was a separate program without mentioning whether there
was any separation of facilities or separate staff. It seems highly likely that
there was no such functional separation; presumably, for instance, tickets to
flights to the small communities were sold at the same Delta flight counters by
the same personnel who sold tickets to the major cities. Thus, we think that a
proposal which requires total functional separation between programs would
be inconsistent with Grove City.
However, if a requirement of total functional separation is inconsistent with
the program-specific statutory language, it is nevertheless important not to
slight the specific prohibition of § 1008 — a factor not present in the Grove
City line of cases. Thus, a reasonable amount of functional separation may not
only be possible, but required. For instance, it may be reasonable in some cases
to require that the abortion counseling be provided in a different office than the
family planning counseling. This separation would become increasingly im­
portant if it was the only reasonable means to segregate abortion-related
materials or personnel from the family planning context.
Nevertheless, we caution that a functional separation requirement may, in a
given case, be argued to be an unconstitutional condition. As we indicated
above, the government may not condition the receipt of Title X funds on a
grantee’s promise not to undertake abortion-related activities with
nongovernment funds. For the same reason, the government must be wary of
imposing unreasonable functional separation requirements. Thus, it is impor­
15 O f course, if a program were conducted within a separate corporate entity, it might strengthen the
conclusion that a distinct program existed. Cf. Eivins v. Adventist Health System/Eastern & Middle America,
Inc., 6S1 F. Supp. 340 (D. K ansas 1987) (holding as a m atter o f law that a nonprofit corporation acting as a
holding corporation for certain hospitals and providing services to others was not within the sam e “program "
as such hospitals) B ut this conclusion does not support the converse: that an activity m ust be separately
incorporated to constitute a program.
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tant that the new guidelines requiring a level of functional separation impose
restrictions that can be feasibly complied with by grantee organizations that
also provide abortion-related programs with nongovernmental funds.*
D o u g l a s W . K m ie c
D eputy Assistant Attorney General
Office o f Legal Counsel
♦NO TE: Subsequent to th is opinion, H H S prom ulgated the regulations discussed herein. 53 Fed. Reg. 2922(198 8 ) (co d ified at 42 C .F.R . Part 59). A facial challenge to the regulations was rejected by the Supreme
C ourt, w hich held that they constituted a perm issible construction o f § 1008 and w ere consistent with the
First and Fifth A m endm ents to the C onstitution. Rust v. Sullivan , 111 S. Ct. 1759 (1991).
88