The opinion of the court was delivered by: Marshall, District Judge.
This case presents the question whether the State of Illinois
may constitutionally deny plaintiff, Planned Parenthood
Association, eligibility for grants of state funds under a
state program designed to deal with problem pregnancies, solely
on the ground that Planned Parenthood offers its clients
abortion counseling and referral services.
The Client Services Department provides, inter alia, a
Pregnancy Testing and Counseling Service and a Pregnancy
Information Hotline. The Testing Service conducts pregnancy
testing for approximately 140 to 180 women each month. For
those women who are pregnant, the Counseling service provides
The purpose of such counseling is to discuss all
of the alternatives available to a pregnant woman,
including the alternative of abortion, so that the
client can have a factual basis on which to decide
what course of action is best for her. Therapy is
not engaged in, nor is a course of action
recommended. The majority of women who come to the
pregnancy testing service request and receive
information concerning abortion. The counselor
will provide information concerning the
possibility of abortion, but the woman is never
encouraged to follow that or any other particular
alternative. If the client desires to be placed in
touch with an abortion clinic, however, the
counselor will provide the names of clinics which
have been evaluated by Planned Parenthood. Clinics
are evaluated on numerous bases, and the clinics
mentioned are considered sufficient in all areas.
A number of women who are referred to abortion
clinics desire to obtain an abortion for
therapeutic reasons. Planned Parenthood does not
perform abortions nor does it encourage abortions.
Affidavit of Elizabeth Mooney at 2-3.
Planned Parenthood also provides services to women with
"problem pregnancies." This term refers to pregnancies which
create mental or physical difficulties for the pregnant woman.
These women are provided with counseling services which attempt
to help them address their unique needs.
Defendants do not dispute Planned Parenthood's contention
that it in no way promotes, encourages, or advocates abortion.
All parties agree that Planned Parenthood's practices
constitute a sincere attempt to neutrally and objectively
inform a pregnant woman of her options, in order to ensure that
her decision regarding her pregnancy is a fully informed one.
On November 1, 1979, the Illinois Problem Pregnancy Health
Services and Care Act became effective. It was passed over
Governor Thompson's veto.*fn1 The Act was designed to provide
grants to grantees in order to ameliorate the plight of women
with problem pregnancies. See Ill.Rev.Stat., ch. 111
1/2, § 4604-102(A) (1979). However, the Act was amended
during the course of its consideration to exclude from
eligibility for grants applicants who "refer or counsel for
abortion." Id. § 4604-100.
On March 31, 1981, Planned Parenthood applied for a grant
under the Act. Planned Parenthood's application stated that it
would use the funds for testing, options counseling, medical
screening, referral, and follow-up services. The application
stated that the options counseling services would involve
discussion of "all options" with the client, including
abortion.*fn2 Planned Parenthood's application was denied on
the stated ground that those organizations
which had already been funded in the preceding year had
priority for future funding.
On June 12, 1981, Planned Parenthood filed suit seeking
declaratory and injunctive relief against Ill.Rev.Stat., ch.
111 1/2, § 4604-100 (1979). William L. Kempiners,
individually and as Director of the Illinois Department of
Public Health, was named as defendant. Mr. Kempiners is the
state official responsible for administering the Act.
On June 17, Planned Parenthood moved this court to enter a
preliminary injunction against defendant Kempiners. On June 30
this court denied the motion and stated that it would instead
treat the pending motion as a motion for summary judgment.
On July 31, 1981, Care Center of Springfield, Inc. moved to
intervene as a defendant. Care Center is a private nonprofit
corporation which provides pregnancy counseling and referral
services of the type supported by the Act. Care Center
currently receives 13 percent of its funding from the State of
Illinois under the Act. The Center provides no abortion-related
services of any kind. The motion to intervene was subsequently
Planned Parenthood and Mr. Kempiners have presented cross
motions for summary judgment which are fully briefed and ready
for ruling. All parties agree that there is no genuine issue of
material fact present in this case. Therefore, it is
appropriate that the case be resolved at this juncture.
See Fed.R.Civ.P. 56(c).
Before reaching the merits, the question of plaintiff's
standing must be addressed. Although not raised by the parties,
the issue must nevertheless be resolved since the
constitutional requirements for standing go to this court's
jurisdiction and therefore must be raised by the court on its
own motion. See Fed.R.Civ.P. 12(h)(3); Orr v.
Orr, 440 U.S. 268, 271, 99 S.Ct. 1102, 1107, 59 L.Ed.2d
306 (1979); Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48
L.Ed.2d 450 (1976); Jenkins v. McKeithen,
395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969);
Frothingham v. Mellon, 262 U.S. 447, 480, 43 S.Ct.
597, 598, 67 L.Ed. 1078 (1923). See also Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 167, 60 S.Ct.
153, 154, 84 L.Ed. 167 (1939) (parties may not confer
jurisdiction by consent).
In order to establish standing, Planned Parenthood must
demonstrate that it has suffered injury in fact, and that its
injury is fairly traceable to the challenged conduct. Duke
Power Co. v. Carolina Environmental Study Group,
438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Village
of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d
450 (1977). There is no doubt that Planned Parenthood has
suffered injury in fact through the denial of its application.
However, it is questionable whether the injury is fairly
traceable to the challenged statute. Defendant Kempiners argues
that the denial was simply the result of the priority accorded
to previously funded agencies, and not to the abortion
counseling conducted by Planned Parenthood. Moreover, because
of the inseverability clause in the Act, see
Ill.Rev.Stat., ch. 111 1/2, § 4606-100 (1979), if this
court holds the Act unconstitutional, state law may require
that the entire grant program cease to operate. In either case,
the likelihood that a judgment for the plaintiff in this case
will lead to Planned Parenthood receiving government funds is
speculative at best. It can therefore be argued that Planned
Parenthood lacks standing because the relief it seeks will not
redress the injury it has suffered. See Simon v. Eastern
Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96
S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v.
Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 2208, 45 L.Ed.2d
Such an argument, however, would misconceive the nature of
the constitutional injury Planned Parenthood claims to have
suffered. The injury is not the fact that Planned Parenthood
has been denied government funds, since it has no right to
receive any money at all from the government.
See, e.g., Maher v. Roe, 432 U.S. 464, 469, 97 S.Ct.
2376, 2380, 53 L.Ed.2d 484 (1977). Rather, the constitutional
injury stems from the fact that Planned Parenthood alleges that
it has been disqualified for government funds for an
impermissible reason. The Constitution is not offended by the
mere refusal to subsidize, but it is offended when that refusal
is made for impermissible reasons. See id. at 469-70,
97 S.Ct. at 2380; Memorial Hospital v. Maricopa
County, 415 U.S. 250, 258-60, 94 S.Ct. 1076, 1082-1083, 39
L.Ed.2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618,
634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). From a
constitutional standpoint, it makes no difference whether
Planned Parenthood ultimately receives state funds. What is
constitutionally significant is that Planned Parenthood not be
denied funds on an impermissible basis. Defendants do not
dispute the assertion that Planned Parenthood is disqualified
from state funding by § 4604-100. Therefore, if that
statute constitutes an impermissible basis for state action,
its very existence, without more, constitutes constitutional
injury to Planned Parenthood. Planned Parenthood's
constitutional interest is not in receiving state funds, but in
having that impermissible basis removed. The relief Planned
Parenthood seeks clearly will vindicate this interest.
Therefore, Planned Parenthood satisfies the constitutional
requirements for standing.*fn3
In Count I of the complaint, plaintiff asserts that the
statutory disqualification of grant applicants that provide
abortion counseling and referral services constitutes an
unconstitutional penalty on the exercise of protected rights.
Planned Parenthood is denied access to a "forum" for the
exercise of rights solely because of its constitutionally
protected activity. This, it is said, operates as a penalty on
It is undeniably true that § 4604-100 is an attempt by
the State of Illinois to adopt a "non-neutral" policy vis-a-vis
abortions. As both defendants concede, Illinois has adopted a
public policy which prefers childbirth over abortion. §
4604-100 is a public funding choice which implements that
policy. However, the mere fact that Illinois chooses to
subsidize childbirth-related services and not abortion-related
services does not constitute a constitutional violation.
Illinois is constitutionally free to express a preference for
childbirth over abortion, and to allocate its funds so as to
encourage the former over the latter. Harris v. McRae,
448 U.S. 297, 314, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980);
Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382,
53 L.Ed.2d 484 (1977). See also Poelker v. Doe,
432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977) (per curiam)
(following Maher). While it is true that the woman's
right to abort is constitutionally protected, the right to
obtain funds from the government in order to exercise ...