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 that
right is not. McRae, 448 U.S. at 317-18, 100 S.Ct. at
2688; Maher, 432 U.S. at 476-77, 97 S.Ct. at
2383-2384. Illinois has not attempted to penalize
the protected right to abort; it has merely adopted a
"hands-off" posture, refusing to subsidize that right.*fn4
Planned Parenthood's application for funds under the Act
indicates that it would have used the funds for a program which
includes abortion-related services. Therefore, it is Planned
Parenthood which seeks to interfere with the right of Illinois
to decline to encourage abortions, rather than the converse.
Planned Parenthood seeks to compel Illinois to adopt a position
of neutrality; subsidizing childbirth and abortion-related
counseling and referral services on an equal basis. However, as
McRae and Maher clearly indicate, there is no
requirement that the state be neutral vis-a-vis abortion. It is
free to express its preference for childbirth, by subsidizing
it and not abortion.
This would be a much different case if Planned Parenthood had
demonstrated that none of the state funds it had hoped to
receive would have been used for abortion-related services. In
that case, the State's activity could not be characterized as
a passive refusal to subsidize, for the state would not have
been asked to subsidize any abortion services. In such case,
§ 4604-100 would indeed operate as a penalty on
constitutional rights, by disqualifying Planned Parenthood for
public benefits because of its privately funded activity. When
a state goes further than merely refusing to subsidize abortion
related services, and deprives those exercising their
constitutional rights of additional funds, an unconstitutional
penalty is imposed. See McRae, 448 U.S. at 317 n. 19,
100 S.Ct. at 2688; Maher, 432 U.S. at 474 n. 8, 97
S.Ct. at 2382. However, in this case Planned Parenthood did in
fact ask the state to subsidize abortion-related services. The
state's refusal of that request does not constitute a penalty
on the exercise of constitutional rights.*fn5
In Count III of the complaint, Planned Parenthood asserts
that § 4604-100's disqualification of organizations which
provide abortion counseling and referral services creates a
classification which denies it equal protection of the laws.
What has been said above largely answers this claim. The State
of Illinois has a legitimate and substantial interest in
protecting potential life. McRae, 448 U.S. at 325, 100
S.Ct. at 2692; Maher, 432 U.S. at 478-79, 97 S.Ct. at
2385; Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705,
731, 35 L.Ed.2d 147 (1973). The state is free to make public
funding choices which pursue this interest, and express a
preference for childbirth over abortion, so long as this
preference is expressed as a mere refusal to subsidize, and not
as direct interference with the abortion decision. 448 U.S. at
316-17, 326, 100 S.Ct. at 2687-2688, 2693; 432 U.S. at 473-74,
97 S.Ct. at 2382. § 4604-100 undeniably expresses this
constitutionally permissible preference, and thereby is
rationally related to the state interest in protecting
potential life. This is sufficient to satisfy the equal
In Count II of the complaint, Planned Parenthood asserts a
very different type of claim from those discussed above. In
this Count, Planned Parenthood asserts no right to public
funding of its activities, nor does it assert that any
impermissible penalty on its abortion counseling and referral
activities is created by § 4604-100. Rather, it asserts
that the funding scheme created by the Act directly interferes
with the rights of its clients, through an active effort to
interfere with their decisions whether to have an abortion. By
funding only programs which provide no abortion counseling and
referral, the State is alleged to provide women with
"incomplete and misleading information concerning their
options. Therefore, the Act directly interferes with the rights
of women, who will reasonably rely on this distorted
information, to make an informed decision as to whether to
carry a pregnancy to term." Complaint ¶ 22.
In short, Planned Parenthood alleges that the Act is more
than a mere refusal to subsidize. Instead, it is a direct
attempt to obstruct the path of women seeking to exercise their
"The Constitution imposes no obligation on the States to pay
the pregnancy-related medical expenses of  women. . . . But
when a State decides to alleviate some of the hardships of
poverty by providing medical care, the manner in which it
dispenses benefits is subject to constitutional limitations."
Maher, 432 U.S. at 469-70, 97 S.Ct. at 2380 (footnote
omitted). As the Maher Court recognized, the manner in
which government largess is distributed is subject to
constitutional scrutiny. Refusals to subsidize, if based on
constitutionally impermissible criteria, may be invalidated
even if they leave persons no less able to exercise rights than
if government subsidized no activities at all. See Thomas
v. Review Board of the Indiana Employment Security
Division, 450 U.S. 707, 101 S.Ct. 1425, 1431-32, 67
L.Ed.2d 624 (1981); 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); Sherbert
v. Verner, 374 U.S. 398, 403-06, 83 S.Ct. 1790, 1793-1795,
10 L.Ed.2d 965 (1963);*fn6 The Supreme Court, 1979
Term, 94 Harv.L.Rev. 75, 99-100 (1980). While government
is under no obligation to provide any form of state-provided
benefit, once it does so, it is not free to withhold benefits
on a forbidden basis.
For at least a quarter-century, this Court has
made clear that even though a person has no
"right" to a valuable governmental benefit and
even though the government may deny him the
benefit for any number of reasons, there are some
reasons on which the government may not rely. It
may not deny a benefit to a person on a basis that
infringes his constitutionally protected
interests. . . . Perry v. Sindermann,
408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570
Thus, government may not deny benefits to persons because they
have exercised protected rights. See Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274,
283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Elrod v.
Burns, 427 U.S. 347, 358-60, 96 S.Ct. 2673, 2682-2683, 49
L.Ed.2d 547 (1977); Perry v. Sindermann, 408 U.S. 593,
597-98, 92 S.Ct. 2694, 2697-2698, 33 L.Ed.2d 570 (1972);
Pickering v. Board of Education, 391 U.S. 563, 568, 88
S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1969); Speiser v.
Randall, 357 U.S. 513, 518-19, 78 S.Ct. 1332, 1338, 2
L.Ed.2d 1460 (1958). See also Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546, 554-57, 95 S.Ct. 1239, 1244-1245,
43 L.Ed.2d 448 (1975) (refusal to permit producers of the
musical Hair access to municipal theatre was an
invalid prior restraint); Healy v. James,
408 U.S. 169, 184, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972) (refusal
to permit SDS access to state
college's facilities "was a form of prior restraint"). Once
government provides funds for the exercise of protected rights,
it is obligated to respect the norms of the Constitution. It is
clear that a refusal to subsidize can constitute forbidden
interference with constitutional rights. Therefore, Illinois'
refusal to subsidize abortion counseling and referral must be
tested to see if it complies with constitutional norms.
Illinois has created a program which provides pregnancy
counseling and referral as long as no information about
abortion is provided. If this program is based on criteria
which violate constitutional rights of women, it is invalid.
The fourteenth amendment right to have an abortion was
initially labeled as a right of privacy. See Roe v.
Wade, 410 U.S. 113, 152-54, 93 S.Ct. 705, 726-727, 35
L.Ed.2d 147 (1973). Commentators have pointed out that this is
a strained use of the concept of privacy: there is precious
little that is "private" about entering a hospital to have a
surgical procedure which will terminate a potentially separate
life. See, e.g., Ely, The Wages of Crying Wolf. A Comment
on Roe v. Wade, 82 Yale L.J. 920, 928-33 (1973); Posner,
The Uncertain Protection of Privacy by the Supreme
Court, 1979 Sup.Ct.Rev. 173, 197-200. To escape this
criticism, the privacy right enunciated in Roe v. Wade
must be defined with some precision. What is protected as
private is not so much the actual abortion as the process of
deciding whether or not to abort. It is this intimate and often
agonizing decision which Roe v. Wade recognized must
not be left to majoritarian institutions. See Harris v.
McRae, 448 U.S. at 312, 100 S.Ct. at 2685 (Wade protects
the woman from "unduly burdensome interference with her freedom
to decide whether to terminate her pregnancy"); Whalen v.
Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d
64 (1977) (recognizing the constitutionally protected interest
in "making certain kinds of important decisions" free from
governmental interference); Eisenstadt v. Baird,
405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) ("If
the right of privacy means anything, it is the right of the
individual, married or single, to be free from
unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to
bear or beget a child." (emphasis in original)). The Court has
The decision whether or not to beget or bear a
child is at the very heart of this cluster of
constitutionally protected choices. That decision
holds a particularly important place in the
history of the right of privacy. . . . This is
understandable, for in a field that by definition
concerns the most intimate of human activities and
relationships, decisions whether to accomplish or
prevent conception are among the most private and
sensitive. Carey v. Population Services
International, 431 U.S. 678, 685, 97 S.Ct.
2010, 2016, 52 L.Ed.2d 675 (1977).
It is the decisional process which is protected from state
interference. This intimate and highly personal decision cannot
be left to legislative majorities. The woman herself must be
left free to make this decision free from governmental
We hold that § 4604 crosses the line between a passive
refusal to subsidize and active interference with the protected
decision whether to bear or beget a child. Because the state
attempts to control the actual decisional process, by limiting
the type of information the woman may receive, it actively
interferes with this protected decision. This type of state
interference offends the guarantees of the first and fourteenth
amendments, and must be invalidated.
Section 4604 contains a statutory prohibition on abortion
counseling. The statute represents an affirmative state action
ensuring that pregnant women will not receive information
concerning their abortion option from state grantees.
Of course, it is essential that the constitutional guarantee
surrounding this "begetting
and bearing choice" be a meaningful one. The right to make this
critical decision would mean little unless the decision can be
made in an informed manner. Therefore, it is essential that the
woman be fully informed so that her decision is an intelligent
one. See H.L. v. Matheson, 450 U.S. 398, 101 S.Ct.
1164, 1171-72, 67 L.Ed.2d 388 (1981); Bellotti v.
Baird, 443 U.S. 622, 640-41, 99 S.Ct. 3035, 3046-3047, 61
L.Ed.2d 797 (1979) (opinion of Powell, J.); Planned
Parenthood v. Danforth, 428 U.S. 52, 67, 96 S.Ct. 2831,
2840, 49 L.Ed.2d 788 (1976); Hodgson v. Lawson,
542 F.2d 1350, 1356 (8th Cir. 1976); Wolfe v. Schroering,
541 F.2d 523, 526 (6th Cir. 1976); Planned Parenthood v.
Bellotti, 499 F. Supp. 215 (D.Mass. 1980). The necessity
for full information is clear. "The decision to abort, indeed,
is an important, and often stressful one, and it is desirable
and imperative that it be made with full knowledge of its
nature and consequences." Planned Parenthood v.
Danforth, 428 U.S. at 67, 96 S.Ct. at 2840. In order to
obtain such information, the woman must be able to fully
consult medical personnel to obtain the necessary information.
Friendship Medical Center, Ltd. v. Chicago Board of
Health, 505 F.2d 1141, 1147 (7th Cir. 1974), cert.
denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680
(1975). The Court has canvassed the factors which require
consultation to protect the pregnant woman's rights:
The right of privacy, whether it be founded in
the Fourteenth Amendment's conception of personal
liberty and restrictions on state action, as we
feel it is, or, as the District Court determined,
in the Ninth Amendment's reservation of rights to
the people, is broad enough to encompass a woman's
decision to terminate her pregnancy. The detriment
that the State would impose upon the pregnant
woman by denying this choice altogether is
apparent. Specific and direct harm medically
diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may
force upon the woman a distressful life and
future. Psychological harm may be imminent. Mental
and physical health may be taxed by child care.
There is also the distress, for all concerned,
associated with the unwanted child, and there is
the problem of bringing a child into a family
already unable, psychologically and otherwise, to
care for it. In other cases, as in this one, the
additional difficulties and continuing stigma of
unwed motherhood may be involved. All these
are factors the woman and her responsible
physician necessarily will consider in
consultation. Roe v. Wade, 410 U.S. 113, 153,
93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (emphasis
The pregnant woman thus has a "right to receive medical care in
accordance with her licensed physician's best judgment. . . ."
Doe v. Bolton,