United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2006 Decided November 14, 2006
No. 05-5406
NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH
ASSOCIATION, INC.,
APPELLANT
V.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED
STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv02148)
James L. Feldesman argued the cause for appellant. With
him on the briefs were Kathy S. Ghiladi and Robert A.
Graham.
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Robert M. Loeb, Attorney.
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Stephen H. Aden argued the cause for appellees Christian
Medical Association and American Association of Pro-Life
Obstetricians and Gynecologists. With him on the brief was
Benjamin W. Bull.
Jay Alan Sekulow, Colby M. May and James M.
Henderson, Sr. were on the brief for amici curiae for U.S.
Representative Henry J. Hyde, et al. in support of appellees.
Before: GINSBURG, Chief Judge, and SENTELLE, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: At the end of 2004
Congress adopted a provision commonly known as the
Weldon Amendment (named after Representative David
Weldon), prohibiting recipients of federal grant funds from
discriminating against individuals or entities that refuse to
provide or refer for abortions. Consolidated Appropriations
Act, 2005, Pub. L. No. 108-447, § 508(d), 118 Stat. 2809,
3163. It reenacted the same provision the next December.
Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 2006,
Pub. L. No. 109-149, § 508(d), 119 Stat. 2833, 2879–80.
Five days after the initial enactment, the National Family
Planning and Reproductive Health Association filed suit in
district court. Its substantive claims—at least the ones making
it to the appeal—are that the amendment’s alleged vagueness
violates the First Amendment, for which it cites Rust v.
Sullivan, 500 U.S. 173 (1991), and the limits of Congress’s
spending power, for which it cites Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 17 (1981) (holding that a
statute exercising Congress’s spending power imposes legally
binding conditions on a recipient state only if it expresses the
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binding character unambiguously). The district court found
standing but on the merits denied the requested injunction and
granted summary judgment for the government. We find no
standing.
* * *
Under Title X of the Public Health Service Act, 42 U.S.C.
§ 300, the Secretary of Health and Human Services “is
authorized to make grants to and enter into contracts with
public or nonprofit private entities to assist in the
establishment and operation of voluntary family planning
projects . . . .” Most Title X funds flow initially to state and
local governmental agencies and non-profit organizations.
These grantees function as intermediaries that in turn
distribute the funds to subgrantees who actually administer the
programs. The plaintiff association is an organization
comprised largely of Title X grantees and subgrantees,
including state and local agencies, nonprofit organizations,
clinics, and individuals employed by such entities.
The association’s vagueness theory rests in large part on
an alleged conflict between the Weldon Amendment and a
Health and Human Services (“HHS”) regulation governing
Title X funds. The regulation, most recently amended in
2000, requires all recipients of Title X funds to “offer
pregnant women the opportunity to be provided information
and counseling regarding . . . pregnancy termination.” 65 Fed.
Reg. 41,270, 41,279/1 (July 3, 2000). Neither party disputes
that the regulation was an appropriate exercise of the
Secretary’s rulemaking authority (though the government
notes, and plaintiff doesn’t contest, that in the event of
conflict the regulation must yield to a valid statute). The
Weldon Amendment, on the other hand, protects institutional
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and individual providers that wish not to provide or refer for
abortions:
(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 of,
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.
Consolidated Appropriations Act, 2005, § 508(d).
The complaint asserts that the association’s members do
not know how to abide by the 2000 HHS regulation as well as
the Weldon Amendment and are therefore in jeopardy of
losing federal grants. Arguing that its members face
pervasive uncertainty as to their obligations under the two
provisions, it seeks declaratory relief and a preliminary
injunction against enforcement of the amendment.
* * *
Constitutional standing requires that a plaintiff show
“injury in fact,” which the Supreme Court has defined as “an
invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (citations and internal quotations omitted).
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An actual withdrawal of funding from the association’s
members would clearly qualify, but the association doesn’t
suggest that any such withdrawal has occurred.
The association does say, however, that its members face
an imminent threat of injury, including loss of funding,
because of the alleged conflict between the regulation and the
amendment. They claim to be in a Catch-22: If they obey the
amendment, they’ll violate the regulation, and vice versa.
Either way, they say, they are bound to violate one of the
conditions of their funding. Although of course a valid statute
always prevails over a conflicting regulation, the alleged
vagueness of the statute leaves the association uncertain
whether the amendment or the regulation will govern a variety
of situations. Compare Abbott Laboratories v. Gardner, 387
U.S. 136, 153–54 (1967), where the plaintiff firms faced the
hardship of choosing (without authoritative guidance)
between compliance with a possibly unlawful regulation at
considerable expense, and non-compliance, at the risk of
being subjected to after-the-fact enforcement that would entail
fines and reputational losses. But even if the same standard
applied to challenges to a statute as to a regulation, cf. Seegars
v. Gonzales, 396 F.3d 1248, 1254 (D.C. Cir. 2005) (noting a
possible distinction), the association falls far short of showing
the necessary likelihood of any injury.
We start by noting a background point—the association’s
complete failure to show that HHS’s enforcement mechanism
is one that would really burden a grantee that guessed wrong.
There is no suggestion in its papers that good-faith conduct
violating a grant condition would trigger an immediate
funding cut-off, much less the sort of retroactive penalty that
was involved in Abbott Labs.
Turning to the interaction of the substantive provisions
themselves, we must look separately at the Weldon
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Amendment’s conditions on Title X grantees with respect to
individuals who refuse to refer for or provide abortions, and
organizations so refusing. We start with grantees’ obligations
to individuals.
The association asserts that if an individual caregiver
objects to providing abortion counseling to a pregnant woman
but wants to retain a pregnancy counseling job, reassigning
that caregiver to another job might amount to “discrimination”
banned by the amendment. But Congress enacted a provision
in 1974 similarly protecting exercises of individual rights of
conscience, saying that no individual could be compelled to
perform a service, in conjunction with an HHS program, that
“would be contrary to his religious beliefs or moral
convictions.” National Research Act, Pub. L. No. 93-348,
§ 214, 88 Stat. 342, 353 (codified at 42 U.S.C. § 300a-7(d)).
Despite the apparently similar potential for conflict
between the pre-Weldon conscience provisions and the
current Title X regulation (dating from 2000), they have
enjoyed a quite peaceful co-existence. Plaintiff doesn’t point
to a single instance in which the government has treated the
reassignment of a caregiver who refuses to provide abortion
counseling as “discrimination” against that caregiver, or in
which it has questioned a member’s funding because of the
way the member navigated between the regulations and the
conscience provisions. The association’s anomalous equation
of reassignment with discrimination is particularly suspect
because Congress, since 1996, has forbidden “discrimination”
against an individual who “refuses . . . to perform . . .
abortions, or to provide referrals for . . . abortions.” Omnibus
Consolidated Rescissions and Appropriations Act of 1996,
Pub. L. No. 104-134, § 515, 110 Stat. 1321, 1321-245
(codified at 42 U.S.C. § 238n(a)(1), (c)(2)). But the 1996
provision hasn’t given rise to the parade of horribles that
plaintiff hypothesizes—not even to a single horrible.
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To support its notion that the Weldon Amendment’s
protection of individual caregivers may impose different
requirements on Title X grantees than do the earlier
conscience provisions, plaintiff points to the absence of any
reference to “conscience” in the amendment. This is a red
herring. Let us assume that under the amendment individual
caregivers may lawfully refuse to participate in abortion
provision or referral, without any adverse employment
consequences, on broader grounds than formerly—conscience
and, to state it as broadly as possible, “any other grounds.”
We cannot see how a broadening of the grounds for resisting
abortion activity would suddenly transform an
accommodating agency’s reassignment into an act of
discrimination. Plaintiff offers us no help on this.
Plaintiff has thus failed to identify any reason why the
concept of discrimination forbidden by the earlier conscience
provisions and the amendment at all hinges on the scope of
those various provisions. Furthermore, plaintiff does not
point to any desired change in its members’ conduct that
would create some new risk for their funding. Accordingly,
the association has shown no material change since 2000 in
terms of members’ obligations to respect individual views on
abortion, and the risk that its members will face the claimed
dilemma appears to be nil. See American Library Ass’n v.
Barr, 956 F.2d 1178, 1188 (D.C. Cir. 1992).
As to members’ duties to “health care entit[ies]” that are
not individuals, the association alleges that the HHS
regulation requires that recipients distribute funds only to
subgrantees that agree to provide abortion counseling,
whereas the Weldon Amendment, for the first time (with
narrow exceptions), forbids discrimination against potential
subgrantees (i.e., not individuals) that refuse to refer for
abortions. Because the Weldon Amendment appears to
extend pre-existing conscience rights to hitherto uncovered
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entities, we do not have the benefit, in this context, of a six-
year track record. Nonetheless, we think that here too
plaintiff has failed to show the imminence of any serious
dilemma.
First, the association has about 4000 members, yet in the
period between enactment and the district court’s September
28, 2005 denial of a preliminary injunction plaintiff offered no
suggestion that any member encountered the slightest hint
from HHS that its practices might imperil its funding under
Weldon. Moreover, there are structural reasons to doubt that
the issue will ever come up. In 2000 HHS Secretary Shalala
declined to create a specific exception from the pending
regulation’s mandatory referral requirement for organizations
resisting provision of abortion counseling or referrals; she
explained that she was “unaware of any current grantees that
object to the requirement for nondirective options counseling,
so this suggestion appears to be based on more of a
hypothetical than an actual concern.” 65 Fed. Reg. at
41,273/3 (emphasis added). Nowhere in its papers has
plaintiff claimed that such grantees in fact existed. “Litigants
are . . . not entitled to an adjudication of every question they
perceive after reading through the text of legislation.”
American Library Ass’n, 956 F.2d at 1197.
The supposed dilemma is particularly chimerical here
because the association’s asserted injury appears to be largely
of its own making. We have consistently held that self-
inflicted harm doesn’t satisfy the basic requirements for
standing. Such harm does not amount to an “injury”
cognizable under Article III. National Treasury Employees
Union v. United States, 101 F.3d 1423, 1429 (D.C. Cir. 1996);
Fair Employment Council of Greater Washington, Inc. v.
BMC Marketing Corp., 28 F.3d 1268, 1276–77 (D.C. Cir.
1994). Furthermore, even if self-inflicted harm qualified as an
injury it would not be fairly traceable to the defendant’s
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challenged conduct. Brotherhood of Locomotive Engineers
and Trainmen v. Surface Transportation Board, 457 F.3d 24,
28 (D.C. Cir. 2006); Petro-Chem Processing, Inc. v. EPA, 866
F.2d 433, 438 (D.C. Cir. 1989). Here the association has
within its grasp an easy means for alleviating the alleged
uncertainty. It could inquire of HHS exactly how the agency
proposes to resolve any of the conflicts that it claims to spot
between the amendment and the regulations. Under the
Administrative Procedure Act, the association has the right to
petition HHS to adopt a rule clarifying the responsibilities of
Title X grantees. 5 U.S.C. § 553(e). It has never done so.
Plaintiff’s briefs constantly lament that the government has
failed to answer its hypotheticals, see, e.g., Plaintiff’s Br. at
13–17, but the association refers only to questions posed to
the government’s litigation counsel. Failure to seek
clarification from the agency is especially troubling here
because HHS is entitled to deference in interpreting its own
regulation and (under many circumstances) the statutes that it
administers. National Mining Ass’n v. Babbitt, 172 F.3d 906,
911 (D.C. Cir. 1999); Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). As the
association has chosen to remain in the lurch, it cannot
demonstrate an injury sufficient to confer standing.
* * *
As plaintiff lacks standing to challenge the Weldon
Amendment, the judgment below is vacated and the case
remanded to the district court to dismiss for lack of
jurisdiction.
So ordered.