E.D.Pa.: No § 1983 rights under Title X

A Pennsylvania federal district court held that Title X of the Public Health Service Act (which provides for federally-funded family planning services) does not create rights enforceable under 42 U.S.C. § 1983.

 Accordingly, plaintiffs could not sue the city of Philadelphia based on their daughter’s medical treatment at a city clinic. Without discussing any specific provision, the court held that nothing in Title X creates any individual rights. Anspach v. City of Philadelphia, 2008 WL 4748288 (E.D.Pa. Oct. 29, 2008) (No. 08-CV-2600).

          Melissa Anspach, then 16, obtained emergency contraception from Philadelphia’s Public Health Center in 2004. Her parents found out after she suffered severe stomach pains and vomiting from the medication (more common side effects at the time than with the Plan B pill currently on the market). Melissa and her parents, represented by anti-abortion activist Joseph P. Stanton, sued the city and their constitutional claims were rejected by the Third Circuit. Anspach v. City of Philadelphia, et. al., 503 F.3d 256 (3d Cir.2007) (provision of emergency contraception without parental consent did not violate right of privacy or religious exercise). In the present suit, they alleged that Melissa could not fully comprehend the treatment she received without the help of her parents or direct consultation with a doctor. The court’s decision does not make clear what, if any, specific provision of Title X (42 U.S.C. § 300 et seq.) they claimed was violated.

 

          The court noted two previous district court decisions on Title X and § 1983, both in suits by providers. The court declined to follow Planned Parenthood of Billings, Inc. v. Montana, 648 F.Supp. 47 (D.Mont.1986) (provider had enforceable right to eligibility for funds), because it was decided before Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). The other case noted is Planned Parenthood of Centr. Tex. v. Sanchez, 280 F.Supp.2d 590 (W.D.Tex. 2003). There, the district court held that Title X did not create § 1983 rights, but nevertheless granted injunctive relief based upon preemption. On appeal, the Fifth Circuit held that the plaintiffs had a preemption cause of action but “express[ed] no opinion” on the § 1983 issue. Planned Parenthood of Houston v. Sanchez, 403 F.3d 324 (5th Cir.2005). The district court here noted the preemption claim in Sanchez but did not discuss preemption.

 

          The court concluded that Title X as a whole does not create enforceable rights:

In reviewing Title X, we find that the tenor and goal of the entire statute appears to be the provision of funding - for family planning research and education, for training of medical personnel and for the operation of clinics for the benefit of members of the general public. It thus appears that Congress had only the benefit of the general public in mind when it enacted Title X; nowhere did it speak in terms of a particular individual or class of individuals nor does the statute contain any language from which we could infer that Congress intended to confer any enforceable rights upon any individual member of the public in the event that the statute should somehow be violated.

 

The Anspachs also invoked 42 C.F.R. § 59.5, which among other things prohibits discriminatory or coercive treatment. The court said that since the statute created no enforceable rights, the regulations could not do so either.

 

          The court overlooked one provision in Title X that very well might create § 1983 rights. 42 U.S.C. § 300a-5 states that: “The acceptance by any individual of family planning services … provided through financial assistance under this subchapter …shall be voluntary and shall not be a prerequisite to eligibility for or receipt of any other service or assistance” from the service provider. This is the sort of language – providing specific restrictions on how an “individual” “shall” be treated – that the courts of appeals have held creates § 1983 rights. E.g., Ball v. Rodgers, 492 F.3d 1094, 1107 (9th Cir. 2007) (Medicaid provision under which states must guarantee that “individuals… are informed of the feasible alternatives” to institutional care; summary here)). It is not clear whether the Anspachs cited section a-5 in their pleadings, though their theory of the case does appear to be (at least in part) that Melissa’s treatment was not voluntary without parental consent.