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. . . .
The district court dismissed the case . . . . The district court
was following the general rule . . . 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. . .
.
...................................................................Background
...... . . 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"
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 Foreign Assistance Act
of 1961 ("FAA") authorizes the President "to furnish
assistance, on such terms and conditions as he may determine,
for voluntary population planning." 22 U.S.C. § 2151b(b).
. . .
.....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."
.....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." 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.
.....The Mexico City Policy was
rescinded by President Bill Clinton in January 1993, but was
reinstated by President George W. Bush in March 2001. President
Bush issued an official memorandum that restored the abortion-related
restrictions discussed above, including the Standard Clause.
Accordingly, as a condition of receiving U.S. government funds,
foreign NGOs again are required to agree not to perform or actively
promote abortion as a method of family planning.
.....Plaintiffs . . . primary 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. . . . Finally,
plaintiffs attempt to bring a claim under customary international
law, the substance of which appears to be identical to their
First Amendment claim.
.....The district court dismissed
the action in its entirety on the ground that plaintiffs lack
standing under Article III of the Constitution. The court first
noted that because the challenged restrictions apply only to
foreign NGOs, not to domestic organizations such as CRLP, the
Mexico City Policy does not affect plaintiffs directly.
...............................................................................
. .
.....................................................................DISUSSION
....I. First Amendment Claim
.....A. Plaintiffs' Allegations
.....The crux of plaintiffs'
First Amendment claim is their contention that the restrictions
chill foreign NGOs from collaborating with domestic NGOs like
CRLP because such collaboration may be viewed as promoting abortion
and thus would jeopardize the foreign NGOs' receipt of U.S. government
funds. Plaintiffs argue that such collaboration is essential
to their ability to carry out their mission as advocates of reproductive
rights and that depriving them of this ability violates their
freedom of speech and association.
.....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.
.....Plaintiffs list several countries
in which they currently have projects involving these activities
and where foreign NGOs have agreed to the Standard Clause, and
they allege that all of these activities are significantly hindered
in those countries. . . . Plaintiffs also invoke their right
to receive information, claiming that the Standard Clause "interferes
with Plaintiffs' ability to obtain information necessary to accomplish
their abortion law reform efforts from USAID recipient [foreign
NGOs]," and impedes plaintiffs' access to victims and witnesses
of human rights abuses related to reproductive issues. Plaintiffs
explain that foreign NGOs are often the only vehicle to provide
access to both general information and first-hand accounts regarding
conditions in foreign countries, and that obtaining such information
is necessary for domestic NGOs to fulfill their mission of advocating
reproductive rights–including their ability to lobby the
United States government. . . .
.....C. The Standing Issue
.....The district court dismissed
the instant case, not on the merits . . . but for lack of constitutional
standing [§1.4 Lack of Standing to Sue Doctrine]. A federal
court has jurisdiction only if . . . (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.. . .
III. Equal Protection Claim
.....A. Plaintiffs Have "Competitive
Advocate Standing"
.................................................................................
. .
.....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 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."
.....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.
. . .
.....B. The Equal Protection
Claim is Without Merit
...... . . 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. Plaintiffs' equal protection challenge is thus without
merit.
........................................................................CONCLUSION
.....For the reasons stated, we
affirm the district court's dismissal of this action, though
on different grounds.
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