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PLANNED PARENTHOOD ASS'N — CHICAGO AREA v. KEMPINERS

November 23, 1981

PLANNED PARENTHOOD ASSOCIATION — CHICAGO AREA, AN ILLINOIS NON-PROFIT CORPORATION, PLAINTIFF,
v.
WILLIAM L. KEMPINERS, INDIVIDUALLY AND AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF PUBLIC HEALTH, DEFENDANT, AND CARE CENTER OF SPRINGFIELD, INC., INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Marshall, District Judge.

MEMORANDUM OPINION

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.

I

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 "options counseling."

  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 granted.

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).

II

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 343 (1975).

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

III

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 that activity.

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 ...


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