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Interestingly, in the one abortion-related case she ruled on as a court of appeals judge, Sonia Sotomayor ruled against the pro-choice group. She rejected arguments from pro-choice advocates that their Constitutional rights were being restrained by the Bush’s administration’s policy of limiting family planning money to overseas non-profit groups.
This obviously says nothing about how she’d rule on Roe v. Wade but — at least in this one case — she went against the liberal group on legal/Constitutional grounds. I’m guessing the White House might use this case to show that she rules by the book even when she might disagree with a particular government policy (that is, assuming she’s pro-choice).
Here’s a summary of the case by Scotusblog, which has posted an excellent summary of Sonia Sotomayor’s record on the appeals court.
“Abortion Rights: Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights. Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves. Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.”
The full ruling is below the jump:
Before: McLAUGHLIN, LEVAL, and SOTOMAYOR, Circuit Judges.
304 F3d 183 Center for Reproductive Law and Policy v. W Bush
304 F.3d 183
The CENTER FOR REPRODUCTIVE LAW AND POLICY, Janet Benshoof, Anika Rahman, Katherine Hall Martinez, Julia Ernst, Laura Katzive, Melissa Upreti, Christina Zampas, Plaintiffs-Appellants,
George W. BUSH, in his official capacity as President of the United States, Colin Powell, in his official capacity as Secretary of State, Andrew Natsios, in his official capacity as Administrator of the United States Agency for International Development, Defendants-Appellees.
Docket No. 01-6168.
United States Court of Appeals, Second Circuit.
Argued: March 13, 2002.
Decided: September 13, 2002.
Simon Heller, The Center for Reproductive Law & Policy, New York, N.Y. (Janet Benshoof, on the brief), for Plaintiffs-Appellants.
Gregory G. Katsas, Deputy Assistant Attorney General, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General; Robert M. Loeb and Sharon Swingle, Attorneys, Department of Justice Civil Division; James B. Comey, United States Attorney; Gideon A. Schor, Chief Appellate Attorney, on the brief), for Defendants-Appellees.
SOTOMAYOR, Circuit Judge:
This suit was brought by a domestic organization that advocates reproductive rights and by attorneys employed by the organization. Plaintiffs challenge the so-called “Mexico City Policy,” pursuant to which the United States government requires foreign organizations, as a condition of receiving government funds, to agree neither to perform abortions nor to promote abortion generally. Plaintiffs maintain that these restrictions violate their First Amendment rights to freedom of speech and association. The district court dismissed the case for lack of subject matter jurisdiction, finding that plaintiffs lack standing under Article III of the Constitution. The district court was following the general rule, set forth by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), that a federal court may not assume it has jurisdiction over a matter and proceed directly to the merits. The instant case is exceptional, however. Some twelve years ago we entertained and rejected, on the merits, the same constitutional challenge to the provision at issue here. We therefore find that this case falls within an exception recognized by the Supreme Court in Steel Co., and we dismiss the First Amendment claim on the merits without deciding the standing question. Plaintiffs also bring claims under the Due Process Clause and the equal protection component of the Fifth Amendment. We dismiss the due process claim under the doctrine of prudential standing, as plaintiffs’ alleged harm does not fall within the zone of interests protected by the Due Process Clause. We dismiss the equal protection claim as without merit; while plaintiffs do have standing for this claim under the concept we have dubbed “competitive advocate standing,” the classification they challenge does not constitute an equal protection violation.
We accept the allegations in the complaint as true on this motion to dismiss. The facts of this case, which are set forth in greater detail by the district court, see Center for Reproductive Law & Policy v. Bush, No. 01 CIV. 4986, 2001 WL 868007 (S.D.N.Y. July 31, 2001) (“CRLP”), are as follows. Plaintiff The Center for Reproductive Law & Policy (“CRLP”) is a nonprofit advocacy organization devoted to the promotion of reproductive rights. Individual plaintiffs Janet Benshoof, Anika Rahman, Katherine Hall Martinez, Julia Ernst, Laura Katzive, Melissa Upreti and Christina Zampas are CRLP staff attorneys engaged in the organization’s global mission of reproductive law reform. Defendant George W. Bush is the President of the United States. Defendant Colin Powell is the U.S. Secretary of State and is thus responsible for “ensuring program and policy coordination among agencies of the United States Government in carrying out the policies set forth in the Foreign Assistance Act….” 22 U.S.C. § 6593(b)(2). Defendant Andrew Natsios is the Administrator of the United States Agency for International Development (“USAID”). At issue in this case is the so-called “Mexico City Policy”1 of the United States government, whereby foreign non-governmental organizations (“NGOs”) receiving U.S. government funds must agree to a provision called the “Standard Clause,” which prohibits the organizations from engaging in activities that promote abortion (also referred to as the “challenged restrictions”).
The challenged restrictions originated in August 1984, when President Ronald Reagan announced the Mexico City Policy (“the Policy”). The Policy expressed the government’s disapproval of abortion as an element of family planning programs and set forth various ways in which the government would prohibit its funds from being used to support abortion overseas. Among these, it was announced that “the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.” CRLP, 2001 WL 868007, at *4 (citations omitted).
Pursuant to the Mexico City Policy, USAID incorporated the “Standard Clause” into its family planning assistance agreements and contracts. The Standard Clause provides that in order to be eligible for USAID funding, a foreign NGO must certify in writing that it “will not, while receiving assistance under the grant, perform or actively promote abortion as a method of family planning in AID-recipient countries or provide financial support to other foreign nongovernmental organizations that conduct such activities.” Id. at *5 (quotation marks omitted). The restrictions established in the Standard Clause extend to all activities of recipient NGOs, not merely to projects funded by USAID. Thus, in order to receive U.S. government funds, a foreign NGO may not engage in any activities that promote abortion. These restrictions do not apply to domestic NGOs such as plaintiff CRLP.
Plaintiffs bring this suit for injunctive and declaratory relief. Plaintiffs’ primary claim, and the one with which the district court appears exclusively to have concerned itself, is based on the First Amendment. The thrust of this claim is that, as a result of the challenged restrictions, foreign NGOs are chilled from interacting and communicating with domestic abortion rights groups such as plaintiff CRLP, thus depriving plaintiffs of their rights to freedom of speech and association in carrying out the mission of the organization. Plaintiffs also allege that the restrictions violate the Equal Protection Clause of the Fifth Amendment by preventing plaintiffs from competing on “equal footing” with domestic anti-abortion groups, and that they violate the Due Process Clause by failing to give clear notice of what speech and activities they prohibit and by encouraging arbitrary and discriminatory enforcement. Finally, plaintiffs attempt to bring a claim under customary international law, the substance of which appears to be identical to their First Amendment claim.
Our review is de novo. See Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 114 (2d Cir.2002). “The reviewing court may, of course, affirm on any ground appearing in the record below.” MFS Sec. Corp. v. New York Stock Exch., Inc., 277 F.3d 613, 617 (2d Cir.2002).
I. First Amendment Claim
A. Plaintiffs’ Allegations
Specifically, plaintiffs allege that they depend on collaboration with foreign NGOs in order to advocate abortion law reform in foreign countries; to gather reliable information regarding abortion laws; to disseminate publications and reports; to reach audiences worldwide in order to promote abortion law reform; to access victims and witnesses of human rights abuses; to lobby the United States government to rescind the Restoration Memorandum; to influence international conferences, international legal tribunals, and world public opinion; to increase protection for the right to abortion in the United States; and to engage in open and free discussion about abortion. See Am. Compl. ¶¶ 7, 85, 88, 90, 91, 105-107.
We have been over this ground before. In Planned Parenthood Federation of America, Inc. v. Agency for International Development, 915 F.2d 59 (2d Cir.1990), this Court entertained a constitutional challenge to the same Standard Clause incorporated by the USAID into financial assistance agreements with foreign NGOs. Like the instant case, Planned Parenthood involved a First Amendment challenge, based on freedom of speech and association, brought by domestic NGOs. As in the instant case, the plaintiffs argued before this Court that the Mexico City Policy effectively prevented them from associating and collaborating with foreign NGOs, which in turn prevented them from fulfilling their mission regarding reproductive rights advocacy. Planned Parenthood, 915 F.2d at 62-63.
This Court rejected the challenge on the merits, finding “no constitutional rights implicated” by the Policy and the Standard Clause. Planned Parenthood, 915 F.2d at 66. The Court reasoned that the domestic NGOs remained free to use their own funds to pursue abortion-related activities in foreign countries and that “[t]he harm alleged in the complaint is the result of choices made by foreign NGOs to take AID’s money rather than engage in non-AID funded cooperative efforts with plaintiffs-appellants.” Id. at 64. “Such an incidental effect” on the activities of the domestic NGOs, the Court held, did not rise to the level of a constitutional violation. Id. The Court concluded that “the Standard Clause does not prohibit plaintiffs-appellants from exercising their first amendment rights.” Id. Moreover, the Court explained that whatever one might think of the Mexico City Policy, “the wisdom of, and motivation behind, this policy are not justiciable issues,” and the Court found the restrictions to be rationally related to the “otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid.” Id. at 64-65. Having rejected plaintiffs’ claims on the merits, this Court declined to address the question of whether plaintiffs had standing under Article III. Id. at 66.
Plaintiffs’ attempts to distinguish Planned Parenthood are unavailing. First, plaintiffs argue that Planned Parenthood did not involve an equal protection challenge. This is true, but does not affect the First Amendment question. Second, plaintiffs argue that Planned Parenthood “mischaracterizes the [restrictions’] effect as `incidental.'” This argument does not distinguish Planned Parenthood at all, but simply disagrees with its holding. Third, plaintiffs argue that the effect on their speech is more substantial than in Planned Parenthood because the provision “impedes Plaintiffs’ entire mission, not just one component of that mission.” The significance of this point is not clear to us as a legal matter and, in any event, the allegations made in the two cases are far too similar to support this distinction as a factual matter.
The district court dismissed the instant case, not on the merits as we did in Planned Parenthood, but for lack of constitutional standing. A federal court has jurisdiction only if a claim presents a “case” or “controversy” under Article III of the U.S. Constitution. This “irreducible constitutional minimum” of standing requires (1) that the plaintiff has suffered an “injury in fact,” i.e., an invasion of a judicially cognizable interest which is concrete and particularized as well as actual or imminent, rather than conjectural or hypothetical; (2) that there is a causal connection such that the injury is fairly traceable to the challenged conduct; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. “Since this case remains at the pleading stage, all facts averred by the plaintiffs must be taken as true for purposes of the standing inquiry–as they must be for any other issue presented.” Lerman v. Bd. of Elections, 232 F.3d 135, 142 (2d Cir.2000).
The district court held that plaintiffs failed to show these elements of standing. See CRLP, 2001 WL 868007, at *8-*12. In reaching its conclusion, the court relied heavily on our analysis in Planned Parenthood. See, e.g., id. at *10 (“The Court of Appeals has already held that the government is within its constitutional authority in imposing restrictions or conditions on the receipt of USAID funding by [foreign NGOs].”). In particular, the district court placed great weight on our statement in Planned Parenthood that the harm alleged by domestic NGOs is the result not of the Mexico City Policy itself, but of “choices made by foreign NGOs to take AID’s money rather than engage in non-AID funded cooperative efforts with plaintiffs-appellants.” Id. at *10, *11 (quoting Planned Parenthood, 915 F.2d at 64). Based on this language from Planned Parenthood, the district court found that “plaintiffs have failed to show that their alleged harms are caused by the challenged government policies.” Id. at *12.
One reason why Planned Parenthood might be deemed to resolve the standing question is that Planned Parenthood, though adjudicated on the merits, was decided on the pleadings. Thus, one could argue that this Court decided as a matter of law that the Mexico City Policy could not be deemed the legal “cause” of the alleged harm to domestic NGOs. Although this finding was used to form a different conclusion in Planned Parenthood–that plaintiffs’ claims failed on the merits–it arguably could be employed in our standing analysis here. On the other hand, it could be argued that Planned Parenthood is not dispositive, particularly in light of an intervening Supreme Court case that clarified the causation aspect of the standing inquiry. In Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), plaintiffs argued that a Biological Opinion by the Fish and Wildlife Service influenced the Bureau of Reclamation to reduce the quantity of irrigation water available to plaintiffs. Rejecting the government’s contention that plaintiffs lacked standing because the Bureau’s conduct constituted an “independent” act breaking the chain of causation under Lujan, the Supreme Court explained that “[t]his wrongly equates injury `fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation.” Id. at 168-69, 117 S.Ct. 1154. The Court stated that while “it does not suffice if the injury complained of is the result of the independent action of some third party not before the court … that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Id. at 169, 117 S.Ct. 1154 (quotation marks and alterations omitted). Bennett can be read to support plaintiffs’ standing argument in the instant case.
D. The Steel Co. Case and Our Authority to Proceed to the Merits
Because we believe that our decision in Planned Parenthood dooms plaintiffs’ First Amendment claims on the merits, we must decide whether we should first address plaintiffs’ novel theory of constitutional standing with respect to these claims.
Between the time that we decided Planned Parenthood and the filing of the instant action, the Supreme Court issued a decision in which it criticized the practice whereby a court proceeds directly to the merits of a case while assuming arguendo that the plaintiffs have constitutional standing to bring the suit. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This practice, referred to by some courts as “hypothetical jurisdiction,” United States v. Troescher, 99 F.3d 933, 934 n. 1 (9th Cir.1996), was often used by federal courts seeking to avoid a difficult or novel issue of standing in favor of a relatively easy merits question. In Steel Co., however, Justice Scalia explained that the determination of standing is a question of subject matter jurisdiction, and that a court lacks the authority to rule on a case unless it determines that jurisdiction exists. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003. “For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.” Id. at 101-02, 118 S.Ct. 1003. Justice Scalia’s decision in Steel Co. commanded a five-Justice majority, although two of the five issued a concurring opinion, which expressed a more permissive view toward the practice of assumed jurisdiction. See id. at 110-11, 118 S.Ct. 1003 (O’Connor, J., concurring, joined by Kennedy, J.) (stating that “the Court’s opinion should not be read as cataloging an exhaustive list of circumstances under which federal courts may exercise judgment in reserving difficult questions of jurisdiction when the case alternatively could be resolved on the merits in favor of the same party”) (quotation marks and alterations omitted). This Court has heeded the admonitions of Steel Co., acknowledging that ordinarily we are not to assume the existence of jurisdiction in favor of reaching an “easier” merits issue. Fidelity Partners, Inc. v. First Trust Co. of N.Y., 142 F.3d 560, 565 (2d Cir.1998); see also In re Rationis Enters., Inc. of Panama, 261 F.3d 264, 267-68 (2d Cir.2001) (citing Steel Co. rule).
The first is Norton v. Mathews, 427 U.S. 524, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976), in which the Court declined to address a jurisdictional issue and answered the merits question regarding whether certain aspects of the Social Security Act were unconstitutional. The Steel Co. Court distinguished Norton on the ground that, in Norton, “[w]e declined to decide th[e] jurisdictional question, because the merits question was decided in a companion case, Mathews v. Lucas [427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)], with the consequence that the jurisdictional question could have no effect on the outcome.” Steel Co., 523 U.S. at 98, 118 S.Ct. 1003 (internal citation omitted). The Steel Co. Court explained that the outcome in Norton was “foreordained by Lucas” and thus “Norton did not use the pretermission of the jurisdictional question as a device for reaching a question of law that otherwise would have gone unaddressed.” Id.
II. Due Process Claim: Lack of Prudential Standing
Because Planned Parenthood did not address due process claims brought by domestic NGOs in this context, we address the due process claim separately and dismiss it on the alternative ground of prudential standing.
“The doctrine of standing, which addresses the question of whether the plaintiff is entitled to have the court decide the merits of the dispute or of particular issues, embraces both `constitutional’ and `prudential’ requirements.” Sullivan v. Syracuse Hous. Auth., 962 F.2d 1101, 1106 (2d Cir.1992) (quotation marks and brackets omitted). The constitutional requirements, derived from Article III, are the injury in fact, causation, and redressability elements set out by the Supreme Court in Lujan. On the other hand, “[t]he prudential requirements of standing have been developed by the Supreme Court on its own accord and applied in a more discretionary fashion as rules of judicial `self-restraint’ further to protect, to the extent necessary under the circumstances, the purpose of Article III.” Id. (internal citations omitted). Pursuant to the doctrine of prudential standing, a court must ask whether a plaintiff’s claim rests on the legal rights of a third party, asserts only a generalized grievance, or asserts a claim that falls outside the zone of interests protected by the legal provision invoked. See Valley Forge Christian Coll. v. Ams. United, 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); In re Appointment of Indep. Counsel, 766 F.2d 70, 74 (2d Cir.1985). Of particular concern in the instant case is “the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked,” Crist v. Comm’n on Presidential Debates, 262 F.3d 193, 195 (2d Cir.2001) (quoting Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)), coupled with the rule against asserting the rights of a third party. Plaintiffs’ claims do not fall within the “zone of interests” protected by the Due Process Clause.
A. Plaintiffs Have “Competitive Advocate Standing”
Plaintiffs argue that the district court failed to undertake a separate analysis of their Article III standing to bring an equal protection claim. Because we agree with plaintiffs that the case law regarding constitutional standing for equal protection claims is distinct, and because Planned Parenthood does not foreclose this claim on the merits, we address the question of Article III standing with respect to this claim. As the case law and the legal theories involved are quite different, this constitutional standing analysis does not inform the question on which we reserved judgment above regarding constitutional standing to bring the First Amendment claims. We find that plaintiffs do have constitutional standing to bring an equal protection claim.
With respect to the equal protection claim, the relevant portion of the complaint reads:
The [use of the Standard Clause] violates the Equal Protection component of the Fifth Amendment to the United States Constitution because it prohibits plaintiffs from associating with USAID-recipient [foreign NGOs] for the purpose of promoting abortion law reform, but permits other United States citizens and residents to associate with USAID-recipient [foreign NGOs] for the purpose of opposing abortion law reform, and, more generally, permits association with USAID-recipient [foreign NGOs] for the purpose of rendering speech opposed to abortion more effective.
Though plaintiffs do not employ the term, this argument is essentially a theory that this Court has dubbed “competitive advocate standing.” We have acknowledged the possibility that a plaintiff may have standing to bring an equal protection claim where the government’s allocation of a particular benefit “creates an uneven playing field” for organizations advocating their views in the public arena. In re United States Catholic Conference, 885 F.2d 1020, 1029 (2d Cir.1989). In order to “satisfy the rule that he was personally disadvantaged,” a plaintiff must “show that he personally competes in the same arena with the party to whom the government has bestowed the assertedly illegal benefit.” Id.
Plaintiffs have standing under this theory. CRLP is an advocacy organization that communicates its viewpoint regarding issues of abortion and reproductive rights, and it competes with anti-abortion groups engaged in advocacy around the very same issues. The Standard Clause has bestowed a benefit on plaintiffs’ competitive adversaries by rewarding their suppliers of information, the foreign NGOs, with government grants, while withholding those grants from suppliers of information who would deal with CRLP. This is precisely the type of situation that the doctrine of competitive advocate standing contemplates. See id.; cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (finding, under the test for standing articulated in Lujan, 504 U.S. at 560, 112 S.Ct. 2130, that a non-minority subcontractor had standing to contest a government policy that gave a financial incentive to general contractors to give preference to minority subcontractors in awarding subcontracts).
Because this classification “neither proceeds along suspect lines nor infringes fundamental constitutional rights,” it must “be upheld against equal protection challenge if there is any reasonable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also Weinstein v. Albright, 261 F.3d 127, 140 (2d Cir.2001). Here there can be no question that the classification survives rational basis review. The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds. See Rust v. Sullivan, 500 U.S. 173, 192-94, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Plaintiffs’ equal protection challenge is thus without merit.
For the reasons stated, we affirm the district court’s dismissal of this action, though on different grounds.