U.S. Supreme Court
RUST v. SULLIVAN, 500 U.S. 173 (1991)
500 U.S. 173
RUST ET AL. v. SULLIVAN, SECRETARY OF HEALTH AND HUMAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued October 30, 1990
Decided May 23, 1991
Section 1008 of the Public Health Service Act specifies that none of the
federal funds appropriated under the Act's Title X for family-planning services
"shall be used in programs where abortion is a method of family planning." In
1988, respondent Secretary of Health and Human Services issued new regulations
that, inter alia, prohibit Title X projects from engaging in counseling
concerning, referrals for, and activities advocating abortion as a method of
family planning, and require such projects to maintain an objective integrity
and independence from the prohibited abortion activities by the use of separate
facilities, personnel, and accounting records. Before the regulations could be
applied, petitioners - Title X grantees and doctors who supervise Title X funds
- filed suits, which were consolidated, challenging the regulations' facial
validity and seeking declaratory and injunctive relief to prevent their
implementation. In affirming the District Court's grant of summary judgment to
the Secretary, the Court of Appeals held that the regulations were a permissible
construction of the statute and consistent with the First and Fifth Amendments.
1. The regulations are a permissible construction of Title X. Pp.
(a) Because 1008 is ambiguous, in that it does not speak directly to the
issues of abortion counseling, referral, and advocacy, or to "program
integrity," the Secretary's construction must be accorded substantial
deference as the interpretation of the agency charged with administering the
statute, and may not be disturbed as an abuse of discretion if it reflects a
plausible construction of the statute's plain language and does not
otherwise conflict with Congress' expressed intent. Chevron U.S.A. Inc. v.
Natural Resource Defense Council, Inc., 467 U.S. 837, 842-844. P. 184.
(b) Title X's broad language plainly allows the abortion counseling,
referral, and advocacy regulations. Since the Title neither defines
[500 U.S. 173, 174] 1008's "method of family planning" phrase nor
enumerates what types of medical and counseling services are entitled to
funding, it cannot be said that the Secretary's construction of the 1008
prohibition to require a ban on such activities within Title X projects is
impermissible. Moreover, since the legislative history is ambiguous as to
Congress' intent on these issues, this Court will defer to the Secretary's
expertise. Petitioners' contention, that the regulations are entitled to
little or no deference because they reverse the Secretary's longstanding
policy permitting nondirective counseling and referral for abortion, is
rejected. Because an agency must be given ample latitude to adapt its rules
to changing circumstances, a revised interpretation may deserve deference.
The Secretary's change of interpretation is amply supported by a "reasoned
analysis" indicating that the new regulations are more in keeping with the
statute's original intent, are justified by client experience under the
prior policy, and accord with a shift in attitude against the "elimination
of unborn children by abortion." Pp. 184-187.
(c) The regulations' "program integrity" requirements are not inconsistent
with Title X's plain language. The Secretary's view, that the requirements
are necessary to ensure that Title X grantees apply federal funds only to
authorized purposes and avoid creating the appearance of governmental
support for abortion-related activities, is not unreasonable in light of
1008's express prohibitory language and is entitled to deference.
Petitioners' contention is unpersuasive that the requirements frustrate
Congress' intent, clearly expressed in the Act and the legislative history,
that Title X programs be an integral part of a broader, comprehensive,
health care system that envisions the efficient use of non-Title X funds.
The statements relied on are highly generalized and do not directly address
the scope of 1008 and, therefore, cannot form the basis for enjoining the
regulations. Indeed, the legislative history demonstrates that Congress
intended that Title X funds be kept separate and distinct from
abortion-related activities. Moreover, there is no need to invalidate the
regulations in order to save the statute from unconstitutionality, since
petitioners' constitutional arguments do not carry the day. Pp. 187-191.
2. The regulations do not violate the First Amendment free speech rights of
private Title X fund recipients, their staffs, or their patients by
impermissibly imposing viewpoint-discriminatory conditions on Government
subsidies. There is no question but that 1008's prohibition is
constitutional, since the Government may make a value judgment favoring
childbirth over abortion, and implement that judgment by the allocation of
public funds. Maher v. Roe, 432 U.S. 464, 474. In so doing, the Government
has not discriminated on the basis of viewpoint; it has merely chosen to
fund one activity to the exclusion of another. Similarly, [500 U.S. 173, 175] in implementing the
statutory prohibition by forbidding counseling, referral, and the provision
of information regarding abortion as a method of family planning, the
regulations simply ensure that appropriated funds are not used for
activities, including speech, that are outside the federal program's scope.
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, distinguished.
Petitioners' view that, if the Government chooses to subsidize one protected
right, it must subsidize analogous counterpart rights, has been soundly
rejected. See, e.g., Regan v. Taxation with Representation of Wash., 461
U.S. 540. On their face, the regulations cannot be read, as petitioners
contend, to bar abortion referral or counseling where a woman's life is
placed in imminent peril by her pregnancy, since it does not seem that such
counseling could be considered a "method of family planning" under 1008, and
since provisions of the regulations themselves contemplate that a Title X
project could engage in otherwise prohibited abortion-related activities in
such circumstances. Nor can the regulations' restrictions on the
subsidization of abortion-related speech be held to unconstitutionally
condition the receipt of a benefit, Title X funding, on the relinquishment
of a constitutional right, the right to engage in abortion advocacy and
counseling. The regulations do not force the Title X grantee, or its
employees, to give up abortion-related speech; they merely require that such
activities be kept separate and distinct from the activities of the Title X
project. FCC v. League of Women Voters of Cal., 468 U.S. 364, 400; Regan,
supra, 461 U.S., at 546, distinguished. Although it could be argued that the
traditional doctor-patient relationship should enjoy First Amendment
protection from Government regulation, even when subsidized by the
Government, cf., e.g., United States v. Kokinda, 497 U.S. 720, 726, that
question need not be resolved here, since the Title X program regulations do
not significantly impinge on the doctor-patient relationship. Pp. 192-200.
3. The regulations do not violate a woman's Fifth Amendment right to choose
whether to terminate her pregnancy. The Government has no constitutional
duty to subsidize an activity merely because it is constitutionally
protected, and may validly choose to allocate public funds for medical
services relating to childbirth but not to abortion. Webster v. Reproductive
Health Services, 492 U.S. 490, 510. That allocation places no governmental
obstacle in the path of a woman wishing to terminate her pregnancy, and
leaves her with the same choices as if the Government had chosen not to fund
family planning services at all. See, e.g., Harris v. McRae, 448 U.S. 297,
315, 317; Webster, supra, 509. Nor do the regulations place restrictions on
the patient-doctor dialogue which violate a woman's right to make an
informed and voluntary choice under Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416,
[500 U.S. 173, 176] and Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747. Unlike
the laws invalidated in those cases, which required all doctors to provide
all pregnant patients contemplating abortion with specific antiabortion
information, here, a doctor's ability to provide, and a woman's right to
receive, abortion-related information remains unfettered outside the context
of the Title X project. The fact that most Title X clients may be
effectively precluded by indigency from seeing a health care provider for
abortion-related services does not affect the outcome here, since the
financial constraints on such a woman's ability to enjoy the full range of
constitutionally protected freedom of choice are the product not of
governmental restrictions, but of her indigency. McRae, supra, 448 U.S., at
316. Pp. 201-203.
889 F.2d 401, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, KENNEDY,
SCALIA, and SOUTER, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in
which MARSHALL, J., joined; in Part I of which O'CONNOR, J., joined; and in
Parts II and III of which STEVENS, J., joined, post, p. 203. STEVENS, J., post,
p. 220, and O'CONNOR, J., filed dissenting opinions, post, p. 223. [500 U.S.
Laurence H. Tribe argued the cause for petitioners in both cases. With him on
the briefs for petitioners in No. 89-1391 were Kathleen M. Sullivan, Rachael N.
Pine, Janet Benshoof, Lynn Paltrow, Kathryn Kolbert, Steven R. Shapiro, Norman
Siegel, Arthur Eisenberg, Roger K. Evans, Laurie R. Rockett, and Peter J. Rubin.
Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor
General, Suzanne M. Lynn and Sanford M. Cohen, Assistant Attorneys General,
Victor A. Kovner, Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and
Hillary Weisman filed briefs for petitioners in No. 89-1392.
Solicitor General Starr argued the cause and filed a brief for respondent in
both cases. With him on the brief were Assistant Attorney General Gerson, Deputy
Solicitor General Roberts, Jeffrey P. Minear, Anthony J. Steinmeyer, Lowell V.
Sturgill, Jr., and Joel Mangel.Fn
Fn [500 U.S. 173, 176] Briefs of amici
curiae urging reversal were filed for the Commonwealth of Massachusetts et al.
by David D. Cole, James M. Shannon, Attorney General of Massachusetts, and Ruth
A. Bourquin, Assistant Attorney General; for Anthony J. Celebrezze, Jr.,
Attorney General of Ohio, [500 U.S. 173, 177] et al. by Mr. Celebrezze, pro se,
Suzanne E. Mohr and Jack W. Decker, Assistant Attorneys General, and Rita S.
Eppler, Douglas B. Baily, Attorney General of Alaska, John K. Van de Kamp,
Attorney General of California, Clarine Nardi Riddle, Attorney General of
Connecticut, Charles M. Oberly III, Attorney General of Delaware, Herbert O.
Reid, Sr., Corporation Counsel for the District of Columbia, James E. Tierney,
Attorney General of Maine, Hubert H. Humphrey III, Attorney General of
Minnesota, Robert M. Spire, Attorney General of Nebraska, Robert J. Del Tufo,
Attorney General of New Jersey, Dave Frohnmayer, Attorney General of Oregon, Jim
Mattox, Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of
Vermont, and Mary Sue Terry, Attorney General of Virginia; for the American
College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Ann E.
Allen, Kirk B. Johnson, Laurie R. Rockett, Joel I. Klein, and Jack R. Bierig;
for the American Library Association et al. by Bruce J. Ennis, Jr., and David W.
Ogden; for the American Public Health Association et al. by Larry M. Lavinsky,
Charles S. Sims, Michele M. Ovesey, and Nadine Taub; for the Association of the
Bar of the City of New York by Conrad K. Harper, Janice Goodman, and Diane S.
Wilner; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius
LeVonne Chambers and Charles Stephen Ralston; for the National Association of
Women Lawyers et al. by James F. Fitzpatrick, L. Hope O'Keeffe, and Walter
Dellinger; for the Planned Parenthood Federation of America et al. by Dara
Klassel, Eve W. Paul, and Barbara E. Otten; for Twenty-Two Biomedical Ethicists
by Michael E. Fine and Douglas W. Smith; and for Representative Patricia
Schroeder et al. by David M. Becker.
Briefs of amici curiae urging affirmance were filed for the American Academy
of Medical Ethics by Carolyn B. Kuhl; for the Association of American Physicians
and Surgeons by Clarke D. Forsythe and Kent Masterson Brown; for Feminists for
Life of America et al. by Edward R. Grant; for the Knights of Columbus by Carl
A. Anderson; for the Rutherford Institute et al. by Wm. Charles Bundren, John W.
Whitehead, A. Eric Johnston, David E. Morris, Stephen E. Hurst, Joseph P.
Secola, Thomas S. Neuberger, J. Brian Heller, Thomas W. Strahan, William Bonner,
Larry Crain, and James Knicely; for the United States Catholic Conference by
Mark E. Chopko and Phillip H. Harris; and for Senator Gordon J. Humphrey et al.
by James Bopp, Jr., and Richard E. Coleson.
Briefs of amici curiae were filed for the American Life League, Inc., et al.
by Robert L. Sassone; for the Catholics United for Life et al. by Thomas [500 U.S. 173, 178] Patrick Monaghan, Jay Alan Sekulow,
Walter M. Weber, Thomas A. Glessner, Charles E. Rice, and Michael J. Laird; for
the NOW Legal Defense and Education Fund et al. by John H. Hall, Sarah E. Burns,
and Alison Wetherfield; and for the National Right to Life Committee Inc. et al.
by James Bopp, Jr., and Richard E. Coleson. [500
U.S. 173, 177] CHIEF JUSTICE REHNQUIST delivered the opinion of the
These cases concern a facial challenge to Department of Health and Human
Services (HHS) regulations which limit [500 U.S.
173, 178] the ability of Title X fund recipients to engage in
abortion-related activities. The United States Court of Appeals for the Second
Circuit upheld the regulations, finding them to be a permissible construction of
the statute, as well as consistent with the First and Fifth Amendments of the
Constitution. We granted certiorari to resolve a split among the Courts of
Appeals.1 We affirm.
In 1970, Congress enacted Title X of the Public Health Service
Act (Act), 84 stat. 1506, as amended, 42 U.S.C. 300-300a-6, which provides
federal funding for family planning services. The Act authorizes the Secretary
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 which shall offer a broad range of acceptable and effective
family planning methods and services." 300(a). Grants and contracts under Title
X must "be made in accordance with such regulations as the Secretary may
promulgate." 300a-4. Section 1008 of the Act, however, provides that "[n]one of
the funds appropriated under this subchapter shall be used in programs where
abortion is a method of family planning." 42 U.S.C. 300a-6. That restriction was
intended to ensure that Title X funds would "be used only to support preventive
family [500 U.S. 173, 179]
planning services, population research, infertility services, and other related
medical, informational, and educational activities." H.R. Conf. Rep. No.
91-1667, p. 8 (1970).
In 1988, the Secretary promulgated new regulations designed to provide
"`clear and operational guidance' to grantees about how to preserve the
distinction between Title X programs and abortion as a method of family
planning." 53 Fed. Reg. 2923-2924 (1988). The regulations clarify, through the
definition of the term "family planning," that Congress intended Title X funds
"to be used only to support preventive family planning services." H. R. Conf.
Rep. No. 91-1667, p. 8 (emphasis added). Accordingly, Title X services are
limited to "preconceptual counseling, education, and general reproductive health
care," and expressly exclude "pregnancy care (including obstetric or prenatal
care)." 42 CFR 59.2 (1989).2 The regulations "focus the emphasis of the Title X program on
its traditional mission: the provision of preventive family planning services
specifically designed to enable individuals to determine the number and spacing
of their children, while clarifying that pregnant women must be referred to
appropriate prenatal care services." 53 Fed. Reg. 2925 (1988).
The regulations attach three principal conditions on the grant of federal
funds for Title X projects. First, the regulations specify that a "Title X
project may not provide counseling concerning the use of abortion as a method of
family planning or provide referral for abortion as a method of family
planning." 42 CFR 59.8(a)(1) (1989). Because Title X is limited to
preconceptional services, the program does not furnish services related to
childbirth. Only in the context of a referral out of the Title X program is a
pregnant woman given transitional information. 59.8(a)(2). Title X [500 U.S. 173, 180] projects must refer every
pregnant client "for appropriate prenatal and/or social services by furnishing a
list of available providers that promote the welfare of the mother and the
unborn child." Ibid. The list may not be used indirectly to encourage or promote
abortion, "such as by weighing the list of referrals in favor of health care
providers which perform abortions, by including on the list of referral
providers health care providers whose principal business is the provision of
abortions, by excluding available providers who do not provide abortions, or by
"steering" clients to providers who offer abortion as a method of family
planning." 59.8(a)(3). The Title X project is expressly prohibited from
referring a pregnant woman to an abortion provider, even upon specific request.
One permissible response to such an inquiry is that "the project does not
consider abortion an appropriate method of family planning, and therefore does
not counsel or refer for abortion." 59.8(b)(5).
Second, the regulations broadly prohibit a Title X project from engaging in
activities that "encourage, promote or advocate abortion as a method of family
planning." 59.10(a). Forbidden activities include lobbying for legislation that
would increase the availability of abortion as a method of family planning,
developing or disseminating materials advocating abortion as a method of family
planning, providing speakers to promote abortion as a method of family planning,
using legal action to make abortion available in any way as a method of family
planning, and paying dues to any group that advocates abortion as a method of
family planning as a substantial part of its activities. Ibid.
Third, the regulations require that Title X projects be organized so that
they are "physically and financially separate" from prohibited abortion
activities. 59.9. To be deemed physically and financially separate, "a Title X
project must have an objective integrity and independence from prohibited
activities. Mere bookkeeping separation of Title X funds from other monies is
not sufficient." Ibid. The regulations [500 U.S.
173, 181] provide a list of nonexclusive factors for the Secretary to
consider in conducting a case-by-case determination of objective integrity and
independence, such as the existence of separate accounting records and separate
personnel, and the degree of physical separation of the project from facilities
for prohibited activities. Ibid.
Petitioners are Title X grantees and doctors who supervise
Title X funds suing on behalf of themselves and their patients. Respondent is
the Secretary of the Department of Health and Human Services. After the
regulations had been promulgated, but before they had been applied, petitioners
filed two separate actions, later consolidated, challenging the facial validity
of the regulations and seeking declaratory and injunctive relief to prevent
implementation of the regulations. Petitioners challenged the regulations on the
grounds that they were not authorized by Title X and that they violate the First
and Fifth Amendment rights of Title X clients and the First Amendment rights of
Title X health providers. After initially granting the petitioners a preliminary
injunction, the District Court rejected petitioners' statutory and
constitutional challenges to the regulations and granted summary judgment in
favor of the Secretary. New York v. Bowen, 690 F.Supp. 1261 (SDNY 1988).
A panel of the Court of Appeals for the Second Circuit affirmed. 889 F.2d 401
(1989). Applying this Court's decision in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), the Court of
Appeals determined that the regulations were a permissible construction of the
statute that legitimately effectuated Congressional intent. The court rejected
as "highly strained," petitioners' contention that the plain language of 1008
forbids Title X projects only from performing abortions. The court reasoned that
"it would be wholly anomalous to read Section 1008 to mean that a program that
merely counsels, but does not perform, abortions does not include abortion as a
`method of family planning.'" 889 F.2d at 407. "[T]he natural [500 U.S. 173, 182] construction of . . . the term
`method of family planning' includes counseling concerning abortion." Ibid. The
court found this construction consistent with the legislative history, and
observed that "[a]ppellants' contrary view of the legislative history is based
entirely on highly generalized statements about the expansive scope of the
family planning services" that "do not specifically mention counseling
concerning abortion as an intended service of Title X projects" and that "surely
cannot be read to trump a section of the statute that specifically excludes it."
Id., at 407-408.
Turning to petitioners' constitutional challenges to the regulations, he
Court of Appeals rejected petitioners' Fifth Amendment challenge. It held that
the regulations do not impermissibly burden a woman's right to an abortion,
because the "government may validly choose to favor childbirth over abortion and
to implement that choice by funding medical services relating to childbirth but
not those relating to abortion." Id., at 410. Finding that the prohibition on
the performance of abortions upheld by the Court in Webster v. Reproductive
Health Services, 492 U.S. 490 (1989), was "substantially greater in impact than
the regulations challenged in the instant matter," 889 F.2d at 411, the court
concluded that the regulations "create[d] no affirmative legal barriers to
access to abortion." Ibid., citing Webster v. Reproductive Health Services.
The court likewise found that the "Secretary's implementation of Congress's
decision not to fund abortion counseling, referral or advocacy also does not,
under applicable Supreme Court precedent, constitute a facial violation of the
First Amendment rights of health care providers or of women." 889 F.2d at 412.
The court explained that under Regan v. Taxation With Representation of Wash.,
461 U.S. 540 (1983), the Government has no obligation to subsidize even the
exercise of fundamental rights, including "speech rights." The court also held
that the regulations do not violate the First Amendment by "condition[ing]
receipt of a benefit on the [500 U.S. 173, 183] relinquishment of
constitutional rights," because Title X grantees and their employees "remain
free to say whatever they wish about abortion outside the Title X project." 889
F.2d at 412. Finally, the court rejected petitioners' contention that the
regulations "facially discriminate on the basis of the viewpoint of the speech
involved." Id., at 414.
We begin by pointing out the posture of the cases before us.
Petitioners are challenging the facial validity of the regulations. Thus, we are
concerned only with the question whether, on their face, the regulations are
both authorized by the Act, and can be construed in such a manner that they can
be applied to a set of individuals without infringing upon constitutionally
protected rights. Petitioners face a heavy burden in seeking to have the
regulations invalidated as facially unconstitutional. " A facial challenge to a
legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid. The fact that [the regulations] might
operate unconstitutionally under some conceivable set of circumstances is
insufficient to render [them] wholly invalid." United States v. Salerno, 481
U.S. 739, 745 (1987).
We turn first to petitioners' contention that the regulations exceed the
Secretary's authority under Title X, and are arbitrary and capricious. We begin
with an examination of the regulations concerning abortion counseling, referral,
and advocacy, which every Court of Appeals has found to be authorized by the
statute, and then turn to the "program integrity requirement," with respect to
which the courts below have adopted conflicting positions. We then address
petitioner's claim that the regulations must be struck down because they raise a
substantial constitutional question. [500 U.S. 173, 184]
We need not dwell on the plain language of the statute,
because we agree with every court to have addressed the issue that the language
is ambiguous. The language of 1008 - that "[n]one of the funds appropriated
under this subchapter shall be used in programs where abortion is a method of
family planning" - does not speak directly to the issues of counseling,
referral, advocacy, or program integrity. If a statute is "silent or ambiguous
with respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute." Chevron,
467 U.S., at 842-843.
The Secretary's construction of Title X may not be disturbed as an abuse of
discretion if it reflects a plausible construction of the plain language of the
statute and does not otherwise conflict with Congress' expressed intent. Ibid.
In determining whether a construction is permissible, "[t]he court need not
conclude that the agency construction was the only one it could permissibly have
adopted . . . or even the reading the court would have reached if the question
initially had arisen in a judicial proceeding." Id., at 843, n. 11. Rather,
substantial deference is accorded to the interpretation of the authorizing
statute by the agency authorized with administering it. Id., at 844.
The broad language of Title X plainly allows the Secretary's construction of
the statute. By its own terms, 1008 prohibits the use of Title X funds "in
programs where abortion is a method of family planning." Title X does not define
the term "method of family planning," nor does it enumerate what types of
medical and counseling services are entitled to Title X funding. Based on the
broad directives provided by Congress in Title X in general and 1008 in
particular, we are unable to say that the Secretary's construction of the
prohibition in 1008 to require a ban on counseling, referral, and advocacy
within the Title X project is impermissible. [500 U.S. 173, 185]
The District Courts and Courts of Appeals that have examined the legislative
history have all found, at least with regard to the Act's counseling, referral,
and advocacy provisions, that the legislative history is ambiguous with respect
to Congress' intent in enacting Title X and the prohibition of 1008.
Massachusetts v. Sullivan, 899 F.2d 53, 62 (CA1 1990) ("Congress has not
addressed specifically the question of the scope of the abortion prohibition.
The language of the statute and the legislative history can support either of
the litigants' positions"); Planned Parenthood Federation of America v.
Sullivan, 913 F.2d 1492, 1497 (CA10 1990) ("[T]he contemporaneous legislative
history does not address whether clinics receiving Title X funds can engage in
nondirective counseling including the abortion option and referrals"); 889 F.2d,
at 407 (case below) ("Nothing in the legislative history of Title X detracts"
from the Secretary's construction of 1008). We join these courts in holding that
the legislative history is ambiguous, and fails to shed light on relevant
congressional intent. At no time did Congress directly address the issues of
abortion counseling, referral, or advocacy. The parties' attempts to
characterize highly generalized, conflicting statements in the legislative
history into accurate revelations of congressional intent are unavailing.3 [500 U.S. 186]
[500 U.S. 173, 186]
When we find, as we do here, that the legislative history is ambiguous and
unenlightening on the matters with respect to which the regulations deal, we
customarily defer to the expertise of the agency. Petitioners argue, however,
that the regulations are entitled to little or no deference, because they
"reverse a longstanding agency policy that permitted nondirective counseling and
referral for abortion," Brief for Petitioners in No. 89-1392, p. 20, and thus
represent a sharp beak from the Secretary's prior construction of the statute.
Petitioners argue that the agency's prior consistent interpretation of Section
1008 to permit nondirective counseling and to encourage coordination with local
and state family planning services is entitled to substantial weight.
This Court has rejected the argument that an agency's interpretation "is not
entitled to deference because it represents a sharp break with prior
interpretations" of the statute in question. Chevron, 467 U.S. at 862. In
Chevron, we held that a revised interpretation deserves deference because "[a]n
initial agency interpretation is not instantly carved in stone," and "the
agency, to engage in informed rulemaking, must consider varying interpretations
and the wisdom of its policy on a continuing basis." Id., at 863-864. An agency
is not required to "`establish rules of conduct to last forever,'" Motor Vehicle
Mfrs. Assn. of United States, Inc. v. State [500 U.S. 173, 187] Farm Mut. Automobile Ins.
Co., 463 U.S. 29, 42 (1983), quoting American Trucking Assns., Inc. v. Atchison,
T. & S. F. R. Co., 387 U.S. 397, 416 (1967); NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775 (1990), but rather "must be given ample latitude to `adapt
[its] rules and policies to the demands of changing circumstances.'" Motor
Vehicle Mfrs., supra, at 42, quoting Permian Basin Area Rate Cases, 390 U.S.
747, 784 (1968).
We find that the Secretary amply justified his change of interpretation with
a "reasoned analysis." Motor Vehicle Mfrs., supra, at 42. The Secretary
explained that the regulations are a result of his determination, in the wake of
the critical reports of the General Accounting Office (GAO) and the Office of
the Inspector General (OIG), that prior policy failed to implement properly the
statute and that it was necessary to provide "clear and operational guidance to
grantees to preserve the distinction between Title X programs and abortion as a
method of family planning." 53 Fed. Reg. 2923-2924 (1988). He also determined
that the new regulations are more in keeping with the original intent of the
statute, are justified by client experience under the prior policy, and are
supported by a shift in attitude against the "elimination of unborn children by
abortion." We believe that these justifications are sufficient to support the
Secretary's revised approach. Having concluded that the plain language and
legislative history are ambiguous as to Congress' intent in enacting Title X, we
must defer to the Secretary's permissible construction of the statute.
We turn next to the "program integrity" requirements embodied
at 59.9 of the regulations, mandating separate facilities, personnel, and
records. These requirements are not inconsistent with the plain language of
Title X. Petitioners contend, however, that they are based on an impermissible
construction of the statute because they frustrate the clearly
[500 U.S. 173, 188] expressed intent of Congress that Title X programs be
an integral part of a broader, comprehensive, health care system. They argue
that this integration is impermissibly burdened because the efficient use of
non-Title X funds by Title X grantees will be adversely affected by the
The Secretary defends the separation requirements of 59.9 on the grounds that
they are necessary to assure that Title X grantees apply federal funds only to
federally authorized purposes and that grantees avoid creating the appearance
that the government is supporting abortion-related activities. The program
integrity regulations were promulgated in direct response to the observations in
the GAO and OIG reports that, "[b]ecause the distinction between the recipient's
title X and other activities may not be easily recognized, the public can get
the impression that Federal funds are being improperly used for abortion
activities." App. 85. The Secretary concluded:
"[M]eeting the requirement of section 1008 mandates that Title X programs
be organized so that they are physically and financially separate from other
activities which are prohibited from inclusion in a Title X program. Having
a program that is separate from such activities is a necessary predicate to
any determination that abortion is not being included as a method of family
planning in the Title X program." 53 Fed.Reg. 2940 (1988).
The Secretary further argues that the separation requirements do not
represent a deviation from past policy because the agency has consistently taken
the position that 1008 requires some degree of physical and financial separation
between Title X projects and abortion-related activities.
We agree that the program integrity requirements are based on a permissible
construction of the statute, and are not inconsistent with Congressional intent.
As noted, the legislative history is clear about very little, and program
integrity is no exception. The statements relied upon by the petitioners
[500 U.S. 173, 189] to infer such an intent are highly generalized, and
do not directly address the scope of 1008.
For example, the cornerstone of the conclusion that, in Title X, Congress
intended a comprehensive, integrated system of family planning services is the
statement in the statute requiring state health authorities applying for Title X
funds to submit "a state plan for a coordinated and comprehensive program of
family planning services." 1002. This statement is, on its face, ambiguous as to
Congress' intent in enacting Title X and the prohibition of 1008. Placed in
context, the statement merely requires that a State health authority submit a
plan for a "coordinated and comprehensive program of family planning services"
in order to be eligible for Title X funds. By its own terms, the language
evinces Congress' intent to place a duty on state entities seeking federal
funds; it does not speak either to an overall view of family planning services
or to the Secretary's responsibility for implementing the statute. Likewise, the
statement in the original House Report on Title X that the Act was "not intended
to interfere with or limit programs conducted in accordance with State or local
laws" and supported through non-Title X funds is equally unclear. H. R. Conf.
Rep. No. 91-1667, pp. 8-9 (1970). This language directly follows the statement
that it is the "intent of both Houses that the funds authorized under this
legislation be used only to support preventive family planning services. . . .
The conferees have adopted the language contained in section 1008, which
prohibits the use of such funds for abortion, in order to make this intent
clear." Id., at 8. When placed in context and read in light of the express
prohibition of 1008, the statements fall short of evidencing a congressional
intent that would render the Secretary's interpretation of the statute
While the petitioners' interpretation of the legislative history may be a
permissible one, it is by no means the only one, and it is certainly not the one
found by the Secretary. It is well [500 U.S. 173,
established that legislative history which does not demonstrate a clear and
certain congressional intent cannot form the basis for enjoining the
regulations. See Motor Vehicle Mfrs., 463 U.S., at 42. The Secretary based the
need for the separation requirements "squarely on the congressional intent that
abortion not be a part of a Title X funded program." 52 Fed. Reg. 33212 (1987).
Indeed, if one thing is clear from the legislative history, it is that Congress
intended that Title X funds be kept separate and distinct from abortion-related
activities. It is undisputed that Title X was intended to provide primarily
prepregnancy preventive services. Certainly the Secretary's interpretation of
the statute that separate facilities are necessary, especially in light of the
express prohibition of 1008, cannot be judged unreasonable. Accordingly, we
defer to the Secretary's reasoned determination that the program integrity
requirements are necessary to implement the prohibition.
Petitioners also contend that the regulations must be invalidated because
they raise serious questions of constitutional law. They rely on Edward J.
Debartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,
485 U.S. 568 (1988), and NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), which hold that "an Act of Congress ought not to be construed to violate
the Constitution if any other possible construction remains available." Id., at
500. Under this canon of statutory construction, "`[t]he elementary rule is that
every reasonable construction must be resorted to in order to save a statute
from unconstitutionality.'" DeBartolo Corp., supra, at 575 (emphasis added),
quoting Hooper v. California, 155 U.S. 648, 657 (1895).
The principle enunciated in Hooper v. California, supra, and subsequent cases
is a categorical one: "as between two possible interpretations of a statute, by
one of which it would be unconstitutional and by the other valid, our plain duty
is to adopt that which will save the Act." Blodgett v. Holden, 275 U.S. 142, 148
(1927) (opinion of Holmes, J.). This principle
[500 U.S. 173, 191] is based at least in part on the fact that a decision
to declare an act of Congress unconstitutional "is the gravest and most delicate
duty that this Court is called on to perform." Id., Following Hooper, supra,
cases such as United States v. Delaware and Hudson Co., 213 U.S. 366, 408, and
United States v. Jin Fuey Moy, 241 U.S. 394, 401, developed the corollary
doctrine that "[a] statute must be construed, if fairly possible, so as to avoid
not only the conclusion that it is unconstitutional but also grave doubts upon
that score." This canon is followed out of respect for Congress, which we assume
legislates in the light of constitutional limitations. FTC v. American Tobacco
Co., 264 U.S. 298, 305-307 (1924). It is qualified by the proposition that
"avoidance of a difficulty will not be pressed to the point of disingenuous
evasion." Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933).
Here Congress forbade the use of appropriated funds in programs where
abortion is a method of family planning. It authorized the Secretary to
promulgate regulations implementing this provision. The extensive litigation
regarding governmental restrictions on abortion since our decision in Roe v.
Wade, 410 U.S. 113 (1973), suggests that it was likely that any set of
regulations promulgated by the Secretary - other than the ones in force prior to
1988 and found by him to be relatively toothless and ineffectual - would be
challenged on constitutional grounds. While we do not think that the
constitutional arguments made by petitioners in this case are without some
force, in Part III, infra, we hold that they do not carry the day. Applying the
canon of construction under discussion as best we can, we hold that the
regulations promulgated by the Secretary do not raise the sort of "grave and
doubtful constitutional questions," Delaware and Hudson Co., supra, 213 U.S., at
408, that would lead us to assume Congress did not intend to authorize their
issuance. Therefore, we need not invalidate the regulations in order to save the
statute from unconstitutionality. [500 U.S. 173,
Petitioners contend that the regulations violate the First
Amendment by impermissibly discriminating based on viewpoint because they
prohibit "all discussion about abortion as a lawful option - including
counseling, referral, and the provision of neutral and accurate information
about ending a pregnancy - while compelling the clinic or counselor to provide
information that promotes continuing a pregnancy to term." Brief for Petitioners
in No. 89-1391, p. 11. They assert that the regulations violate the "free speech
rights of private health care organizations that receive Title X funds, of their
staff, and of their patients" by impermissibly imposing
"viewpoint-discriminatory conditions on government subsidies," and thus
penaliz[e] speech funded with non-Title X monies. Id., at 13, 14, 24. Because
"Title X continues to fund speech ancillary to pregnancy testing in a manner
that is not evenhanded with respect to views and information about abortion, it
invidiously discriminates on the basis of viewpoint." Id., at 18. Relying on
Regan v. Taxation With Representation of Wash. 461 U.S. 540 (1983), and Arkansas
Writers Project, Inc. v. Ragland, 481 U.S. 221, 234 (1987), petitioners also
assert that, while the Government may place certain conditions on the receipt of
federal subsidies, it may not "discriminate invidiously in its subsidies in such
a way as to `ai[m] at the suppression of dangerous ideas.'" Regan, supra, at 548
(quoting Cammarano v. United States, 358 U.S. 498, 513 (1959)).
There is no question but that the statutory prohibition contained in 1008 is
constitutional. In Maher v. Roe, 432 U.S. 464 (1977), we upheld a state welfare
regulation under which Medicaid recipients received payments for services
related to childbirth, but not for nontherapeutic abortions. The Court rejected
the claim that this unequal subsidization worked a violation of the
Constitution. We held that the government may "make a value judgment favoring
childbirth over abortion, and . . . implement that judgment by the allocation [500 U.S. 173, 193] of public funds." Id., at
474. Here the Government is exercising the authority it possesses under Maher
and Harris v. McRae 448 U.S. 297 (1980), to subsidize family planning services
which will lead to conception and childbirth, and declining to "promote or
encourage abortion." The Government can, without violating the Constitution,
selectively fund a program to encourage certain activities it believes to be in
the public interest, without at the same time funding an alternate program which
seeks to deal with the problem in another way. In so doing, the Government has
not discriminated on the basis of viewpoint; it has merely chosen to fund one
activity to the exclusion of the other. "[A] legislature's decision not to
subsidize the exercise of a fundamental right does not infringe the right."
Regan, supra, at 549. See also Buckley v. Valeo, 424 U.S. 1 (1976); Cammarano v.
United States, supra. "A refusal to fund protected activity, without more,
cannot be equated with the imposition of a `penalty' on that activity." McRae,
supra., at 317, n. 19. "There is a basic difference between direct state
interference with a protected activity and state encouragement of an alternative
activity consonant with legislative policy." Maher, supra, at 475.
The challenged regulations implement the statutory prohibition by prohibiting
counseling, referral, and the provision of information regarding abortion as a
method of family planning. They are designed to ensure that the limits of the
federal program are observed. The Title X program is designed not for prenatal
care, but to encourage family planning. A doctor who wished to offer prenatal
care to a project patient who became pregnant could properly be prohibited from
doing so because such service is outside the scope of the federally funded
program. The regulations prohibiting abortion counseling and referral are of the
same ilk; "no funds appropriated for the project may be used in programs where
abortion is a method of family planning," and a doctor employed by the project
may be prohibited in [500 U.S. 173, 194]
the course of his project duties from counseling abortion or referring for
abortion. This is not a case of the Government "suppressing a dangerous idea,"
but of a prohibition on a project grantee or its employees from engaging in
activities outside of its scope.
To hold that the Government unconstitutionally discriminates on the basis of
viewpoint when it chooses to fund a program dedicated to advance certain
permissible goals because the program, in advancing those goals, necessarily
discourages alternate goals would render numerous government programs
constitutionally suspect. When Congress established a National Endowment for
Democracy to encourage other countries to adopt democratic principles, 22 U.S.C.
4411(b), it was not constitutionally required to fund a program to encourage
competing lines of political philosophy such as Communism and Fascism.
Petitioners' assertions ultimately boil down to the position that, if the
government chooses to subsidize one protected right, it must subsidize analogous
counterpart rights. But the Court has soundly rejected that proposition. Regan
v. Taxation with Representation of Wash., supra; Maher v. Roe, supra; Harris v.
McRae, supra. Within far broader limits than petitioners are willing to concede,
when the Government appropriates public funds to establish a program, it is
entitled to define the limits of that program.
We believe that petitioners' reliance upon our decision in Arkansas Writers
Project, supra, is misplaced. That case involved a state sales tax which
discriminated between magazines on the basis of their content. Relying on this
fact, and on the fact that the tax "targets a small group within the press,"
contrary to our decision in Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U.S. 575 (1983), the Court held the tax invalid. But we have
here not the case of a general law singling out a disfavored group on the basis
of speech content, but a case of the Government refusing
[500 U.S. 173, 195] to fund activities, including speech, which are
specifically excluded from the scope of the project funded.
Petitioners rely heavily on their claim that the regulations would not, in
the circumstance of a medical emergency, permit a Title X project to refer a
woman whose pregnancy places her life in imminent peril to a provider of
abortions or abortion-related services. This case, of course, involves only a
facial challenge to the regulations, and we do not have before us any
application by the Secretary to a specific fact situation. On their face, we do
not read the regulations to bar abortion referral or counseling in such
circumstances. Abortion counseling as a "method of family planning" is
prohibited, and it does not seem that a medically necessitated abortion in such
circumstances would be the equivalent of its use as a "method of family
planning." Neither 1008 nor the specific restrictions of the regulations would
apply. Moreover, the regulations themselves contemplate that a Title X project
would be permitted to engage in otherwise prohibited abortion-related activity
in such circumstances. Section 59.8(a)(2) provides a specific exemption for
emergency care, and requires Title X recipients "to refer the client immediately
to an appropriate provider of emergency medical services." 42 CFR 59.8(a)(2)
(1989). Section 59.5(b)(1) also requires Title X projects to provide "necessary
referral to other medical facilities when medically indicated."4 [500 U.S. 173, 196]
Petitioners also contend that the restrictions on the subsidization of
abortion-related speech contained in the regulations are impermissible because
they condition the receipt of a benefit, in this case Title X funding, on the
relinquishment of a constitutional right, the right to engage in abortion
advocacy and counseling. Relying on Perry v. Sindermann, 408 U.S. 593, 597
(1972), and FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984),
petitioners argue that, "even though the government may deny [a] . . . benefit
for any number of reasons, there are some reasons upon which the government may
not rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests - especially, his interest in freedom of
speech." Perry, supra,, at 597.
Petitioners' reliance on these cases is unavailing, however, because here the
government is not denying a benefit to anyone, but is instead simply insisting
that public funds be spent for the purposes for which they were authorized. The
Secretary's regulations do not force the Title X grantee to give up
abortion-related speech; they merely require that the grantee keep such
activities separate and distinct from Title X activities. Title X expressly
distinguishes between a Title X grantee and a Title X project. The grantee,
which normally is a health-care organization, may receive funds from a variety
of sources for a variety of purposes. Brief for Petitioners in No. 89-1391, pp.
3, n. 5, 13. The grantee receives Title X funds, however, for the specific and
limited purpose of establishing and operating a Title X project. 42 U.S.C.
300(a). The regulations govern the scope of the Title X project's activities,
and leave the grantee unfettered in its other activities. The Title X grantee
can continue to perform abortions, provide abortion-related services, and engage
in abortion advocacy; it simply is required to conduct those activities through
programs that are separate and independent from the project that receives Title
X funds. 42 CFR 59.9 (1989). [500 U.S. 173, 197]
In contrast, our "unconstitutional conditions" cases involve situations in
which the government has placed a condition on the recipient of the subsidy,
rather that on a particular program or service, thus effectively prohibiting the
recipient from engaging in the protected conduct outside the scope of the
federally funded program. In FCC v. League of Women Voters of Cal., we
invalidated a federal law providing that noncommercial television and radio
stations that receive federal grants may not "engage in editorializing." Under
that law, a recipient of federal funds was "barred absolutely from all
editorializing," because it "is not able to segregate its activities according
to the source of its funding," and thus "has no way of limiting the use of its
federal funds to all noneditorializing activities." The effect of the law was
that "a noncommercial educational station that receives only 1% of its overall
income from [federal] grants is barred absolutely from all editorializing" and
"barred from using even wholly private funds to finance its editorial activity."
468 U.S., at 400. We expressly recognized, however, that were Congress to permit
the recipient stations to "establish `affiliate' organizations which could then
use the station's facilities to editorialize with nonfederal funds, such a
statutory mechanism would plainly be valid." Ibid. Such a scheme would permit
the station "to make known its views on matters of public importance through its
nonfederally funded, editorializing affiliate without losing federal grants for
its noneditorializing broadcast activities. Ibid.
Similarly, in Regan, we held that Congress could, in the exercise of its
spending power, reasonably refuse to subsidize the lobbying activities of
tax-exempt charitable organizations by prohibiting such organizations from using
tax-deductible contributions to support their lobbying efforts. In so holding,
we explained that such organizations remained free "to receive deductible
contributions to support . . . nonlobbying activit[ies]." 461 U.S., at 545.
Thus, a charitable organization could create, under 501(c)(3) of the Internal
[500 U.S. 173, 198] Revenue Code of 1954, 26 U.S.C. 501(c)(3), an
affiliate to conduct its nonlobbying activities using tax-deductible
contributions, and at the same time establish, under 501(c)(4), a separate
affiliate to pursue its lobbying efforts without such contributions. 461 U.S.,
at 544. Given that alternative, the Court concluded that "Congress has not
infringed any First Amendment rights or regulated any First Amendment activity[;
it] has simply chosen not to pay for [appellee's] lobbying." Id., at 546. We
also noted that appellee "would, of course, have to ensure that th 501(c)(3)
organization did not subsidize the 501(c)(4) organization; otherwise, public
funds might be spent on an activity Congress chose not to subsidize." Id., at
544. The condition that federal funds will be used only to further the purposes
of a grant does not violate constitutional rights. "Congress could, for example,
grant funds to an organization dedicated to combating teenage drug abuse, but
condition the grant by providing that none of the money received from Congress
should be used to lobby state legislatures." See id., at 548.
By requiring that the Title X grantee engage in abortion-related activity
separately from activity receiving federal funding, Congress has, consistent
with our teachings in League of Women Voters and Regan, not denied it the right
to engage in abortion-related activities. Congress has merely refused to fund
such activities out of the public fisc, and the Secretary has simply required a
certain degree of separation from the Title X project in order to ensure the
integrity of the federally funded program.
The same principles apply to petitioners' claim that the regulations abridge
the free speech rights of the grantee's staff. Individuals who are voluntarily
employed for a Title X project must perform their duties in accordance with the
regulation's restrictions on abortion counseling and referral. The employees
remain free, however, to pursue abortion-related activities when they are not
acting under the auspices of the Title X project. The regulations, which govern
solely [500 U.S. 173, 199] the scope of
the Title X project's activities, do not in any way restrict the activities of
those persons acting as private individuals. The employees' freedom of
expression is limited during the time that they actually work for the project;
but this limitation is a consequence of their decision to accept employment in a
project, the scope of which is permissibly restricted by the funding authority.5
This is not to suggest that funding by the Government, even when coupled with
the freedom of the fund recipients to speak outside the scope of the
Government-funded project, is invariably sufficient to justify government
control over the content of expression. For example, this Court has recognized
[500 U.S. 173, 200] that the existence of a Government "subsidy," in the
form of Government-owned property, does not justify the restriction of speech in
areas that have "been traditionally open to the public for expressive activity,"
United States v. Kokinda, 497 U.S. 720, 726 (1990); Hague v. CIO, 307 U.S. 496,
515 (1939) (opinion of Roberts, J.), or have been "expressly dedicated to speech
activity." Kokinda, supra, at 726; Perry Education Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 45 (1983). Similarly, we have recognized that the
university is a traditional sphere of free expression so fundamental to the
functioning of our society that the Government's ability to control speech
within that sphere by means of conditions attached to the expenditure of
Government funds is restricted by the vagueness and overbreadth doctrines of the
First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603, 605-606
(1967). It could be argued by analogy that traditional relationships such as
that between doctor and patient should enjoy protection under the First
Amendment from government regulation, even when subsidized by the Government. We
need not resolve that question here, however, because the Title X program
regulations do not significantly impinge upon the doctorpatient relationship.
Nothing in them requires a doctor to represent as his own any opinion that he
does not in fact hold. Nor is the doctor-patient relationship established by the
Title X program sufficiently all-encompassing so as to justify an expectation on
the part of the patient of comprehensive medical advice. The program does not
provide post-conception medical care, and therefore a doctor's silence with
regard to abortion cannot reasonably be thought to mislead a client into
thinking that the doctor does not consider abortion an appropriate option for
her. The doctor is always free to make clear that advice regarding abortion is
simply beyond the scope of the program. In these circumstances, the general rule
that the Government may choose not to subsidize speech applies with full force.
[500 U.S. 173, 201]
We turn now to petitioners' argument that the regulations
violate a woman's Fifth Amendment right to choose whether to terminate her
pregnancy. We recently reaffirmed the long-recognized principle that "`the Due
Process Clauses generally confer no affirmative right to governmental aid, even
where such aid may be necessary to secure life, liberty, or property interests
of which the government itself may not deprive the individual.'" Webster, 492
U.S., at 507, quoting DeShaney v. Winnebago County Dept. of Social Services, 489
U.S. 189, 196 (1989). The Government has no constitutional duty to subsidize an
activity merely because the activity is constitutionally protected, and may
validly choose to fund childbirth over abortion and "`implement that judgment by
the allocation of public funds'" for medical services relating to childbirth,
but not to those relating to abortion. Webster, supra, at 510 (citation
omitted). The Government has no affirmative duty to "commit any resources to
facilitating abortions," Webster, 492 U.S. at 511, and its decision to fund
childbirth but not abortion "places no governmental obstacle in the path of a
woman who chooses to terminate her pregnancy, but rather, by means of unequal
subsidization of abortion and other medical services, encourages alternative
activity deemed in the public interest. McRae, 448 U.S., at 315.
That the regulations do not impermissibly burden a woman's Fifth Amendment
rights is evident from the line of cases beginning with Maher and McRae and
culminating in our most recent decision in Webster. Just as Congress' refusal to
fund abortions in McRae left "an indigent woman with at least the same range of
choice in deciding whether to obtain a medically necessary abortion as she would
have had if Congress had chosen to subsidize no health care costs at all," 448
U.S., at 317, and "Missouri's refusal to allow public employees to perform
abortions in public hospitals leaves a pregnant woman with the same choices as
if the State had chosen not [500 U.S. 173, 202]
to operate any public hospitals, Webster, supra, at 509, Congress' refusal to
fund abortion counseling and advocacy leaves a pregnant woman with the same
choices as if the Government had chosen not to fund family planning services at
all. The difficulty that a woman encounters when a Title X project does not
provide abortion counseling or referral leaves her in no different position than
she would have been if the Government had not enacted Title X.
In Webster, we stated that, "[h]aving held that the State's refusal [in
Maher] to fund abortions does not violate Roe v. Wade, it strains logic to reach
a contrary result for the use of public facilities and employees." 492 U.S., at
509-510. It similarly would strain logic, in light of the more extreme
restrictions in those cases, to find that the mere decision to exclude
abortion-related services from a federally funded pre-conceptual family planning
program, is unconstitutional.
Petitioners also argue that by impermissibly infringing on the doctor/patient
relationship and depriving a Title X client of information concerning abortion
as a method of family planning, the regulations violate a woman's Fifth
Amendment right to medical self-determination and to make informed medical
decisions free of government-imposed harm. They argue that, under our decisions
in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and
Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747
(1986), the government cannot interfere with a woman's right to make an informed
and voluntary choice by placing restrictions on the patient/doctor dialogue.
In Akron, we invalidated a city ordinance requiring all physicians to make
specified statements to the patient prior to performing an abortion in order to
ensure that the woman's consent was "truly informed." 462 U.S., at 423.
Similarly, in Thornburg, we struck down a state statute mandating that a list of
agencies offering alternatives to abortion and a description of fetal
development be provided to every woman considering terminating her pregnancy
through an [500 U.S. 173, 203] abortion. Critical to our decisions
in Akron and Thornburg to invalidate a governmental intrusion into the
patient-doctor dialogue was the fact that the laws in both cases required all
doctors within their respective jurisdictions to provide all pregnant patients
contemplating an abortion a litany of information, regardless of whether the
patient sought the information or whether the doctor thought the information
necessary to the patient's decision. Under the Secretary's regulations, however,
a doctor's ability to provide, and a woman's right to receive, information
concerning abortion and abortion-related services outside the context of the
Title X project remains unfettered. It would undoubtedly be easier for a woman
seeking an abortion if she could receive information about abortion from a Title
X project, but the Constitution does not require that the Government distort the
scope of its mandated program in order to provide that information.
Petitioners contend, however, that most Title X clients are effectively
precluded by indigency and poverty from seeing a health-care provider who will
provide abortion-related services. But once again, even these Title X clients
are in no worse position than if Congress had never enacted Title X. "The
financial constraints that restrict an indigent woman's ability to enjoy the
full range of constitutionally protected freedom of choice are the product not
of governmental restrictions on access to abortion, but rather of her
indigency." McRae, supra, at 316.
The Secretary's regulations are a permissible construction of Title X, and do
not violate either the First or Fifth Amendments to the Constitution.
Accordingly, the judgment of the Court of Appeals is
[Footnote 1] Both the First Circuit and
the Tenth Circuit have invalidated the regulations, primarily on constitutional
grounds. See Massachusetts v. Secretary of Health and Human Services, 899 F.2d
53 (CA1 1990); Planned Parenthood Federation of America v. Sullivan, 913 F.2d
1492 (CA10 1990).
[Footnote 2] "Most clients of title
X-sponsored clinics are not pregnant, and generally receive only physical
examinations, education on contraceptive methods, and services related to birth
control." General Accounting Office Report, App. 95.
[Footnote 3] For instance, the Secretary
relies on the following passage of the House Report as evidence that the
regulations are consistent with legislative intent:
"It is, and has been, the intent of both Houses that the funds authorized
under this legislation be used only to support preventive family planning
services, population research, infertility services, and other related
medical, informational, and educational activities. The conferees have
adopted the language contained in section 1008, which prohibits the use of
such funds for abortion, in order to make this intent clear. H. R. Conf.
Rep. No. 91-1667, p. 8 (1970).
Petitioners, however, point to language in the statement of purpose in the
House Report preceding the passage of Title X stressing the importance of
supplying both family planning information and a full range of family planning
[500 U.S. 173, 186] information, and of developing a comprehensive and
coordinated program. Petitioners also rely on the Senate Report which states:
"The committee does not view family planning as merely a euphemism for
birth control. It is properly a part of comprehensive health care, and
should consist of much more than the dispensation of contraceptive devices.
. . . [A] successful family planning program must contain . . . [m]edical
services, including consultation examination, prescription, and continuing
supervision, supplies, instruction, and referral to other medical services
as needed." S. Rep. No. 91-1004, p. 10 (1970).
These directly conflicting statements of legislative intent demonstrate amply
the inadequacies of the "traditional tools of statutory construction," INS v.
Cardoza-Fonseca, 480 U.S. 421, 446-447 (1987), in resolving the issue before us.
[Footnote 4] We also find that, on their
face, the regulations are narrowly tailored to fit Congress' intent in Title X
that federal funds not be used to "promote or advocate" abortion as a "method of
family planning." The regulations are designed to ensure compliance with the
prohibition of 1008 that none of the funds appropriated under Title X be used in
a program where abortion is a method of family planning. We have recognized that
Congress' power to allocate funds for public purposes includes an ancillary
power to ensure that those funds are properly applied to the prescribed use. See
South Dakota v. Dole, 483 U.S. 203, 207-209 (1987) (upholding against Tenth
Amendment challenge requirement that States raise drinking age as condition to
receipt of federal highway funds); Buckley v. Valeo, 424 U.S. 1, 99 (1976).
[Footnote 5] Petitioners also contend that
the regulations violate the First Amendment by penalizing speech funded with
non-Title X moneys. They argue that, since Title X requires that grant
recipients contribute to the financing of Title X projects through the use of
matching funds and grant-related income, the regulation's restrictions on
abortion counseling and advocacy penalize privately funded speech.
We find this argument flawed for several reasons. First, Title X subsidies
are just that, subsidies. The recipient is in no way compelled to operate a
Title X project; to avoid the force of the regulations, it can simply decline
the subsidy. See Grove City College v. Bell, 465 U.S. 555, 575 (1984)
(petitioner's First Amendment rights not violated, because it "may terminate its
participation in the [federal] program, and thus avoid the requirements of [the
federal program]"). By accepting Title X funds, a recipient voluntarily consents
to any restrictions placed on any matching funds or grant-related income.
Potential grant recipients can choose between accepting Title X funds - subject
to the Government's conditions that they provide matching funds and forgo
abortion counseling and referral in the Title X project - or declining the
subsidy and financing their own unsubsidized program. We have never held that
the Government violates the First Amendment simply by offering that choice.
Second, the Secretary's regulations apply only to Title X programs. A recipient
is therefore able to "limi[t] the use of its federal funds to [Title X]
activities." FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984). It
is in no way "barred from using even wholly private funds to finance" its
pro-abortion activities outside the Title X program. Ibid. The regulations are
limited to Title X funds; the recipient remains free to use private, non-Title X
funds to finance abortion-related activities.
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, with whom JUSTICE STEVENS
joins as to Parts II and [500 U.S. 173, 204]
III, and with whom JUSTICE O'CONNOR joins as to Part I, dissenting.
Casting aside established principles of statutory construction and
administrative jurisprudence, the majority in these cases today unnecessarily
passes upon important questions of constitutional law. In so doing, the Court,
for the first time, upholds viewpoint-based suppression of speech solely because
it is imposed on those dependent upon the Government for economic support. Under
essentially the same rationale, the majority upholds direct regulation of
dialogue between a pregnant woman and her physician when that regulation has
both the purpose and the effect of manipulating her decision as to the
continuance of her pregnancy. I conclude that the Secretary's regulation of
referral, advocacy, and counseling activities exceeds his statutory authority,
and also that the Regulations violate the First and Fifth Amendments of our
Constitution. Accordingly, I dissent, and would reverse the divided-vote
judgment of the Court of Appeals.
The majority does not dispute that "[f]ederal statutes are to
be so construed as to avoid serious doubt of their constitutionality."
Machinists v. Street, 367 U.S. 740, 749 (1961). See also Hooper v. California,
155 U.S. 648, 657 (1895); Crowell v. Benson, 285 U.S. 22, 62 (1932); United
States v. Security Industrial Bank, 459 U.S. 70, 78 (1982). Nor does the
majority deny that this principle is fully applicable to cases such as the
instant one, in which a plausible but constitutionally suspect statutory
interpretation is embodied in an administrative regulation. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,
485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979); Kent v. Dulles, 357 U.S. 116, 129-130 (1958). Rather, in its zeal to
address the constitutional issues, the majority sidesteps this established canon
of construction with the feeble excuse that the challenged
[500 U.S. 173, 205] regulations "do not raise the sort of "grave and
doubtful constitutional questions," . . . that would lead us to assume Congress
did not intend to authorize their issuance." Ante, at 191, quoting United States
ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909).
This facile response to the intractable problem the Court addresses today is
disingenuous, at best. Whether or not one believes that these Regulations are
valid, it avoids reality to contend that they do not give rise to serious
constitutional questions. The canon is applicable to this case not because "it
was likely that [the regulations] . . . would be challenged on constitutional
grounds," ante at 191, but because the question squarely presented by the
regulations - the extent to which the Government may attach an otherwise
unconstitutional condition to the receipt of a public benefit - implicates a
troubled area of our jurisprudence in which a court ought not entangle itself
unnecessarily. See, e.g., Epstein, Unconstitutional Conditions, State Power, and
the Limits of Consent, 102 Harv. L. Rev. 4, 6 (1988) (describing this problem as
"the basic structural issue that for over a hundred years has bedeviled courts
and commentators alike. . . ."); Sullivan, Unconstitutional Conditions, 102
Harv. L. Rev. 1413, 1415-1416 (1989) (observing that this Court's
unconstitutional conditions cases "seem a minefield to be traversed gingerly").
As is discussed in Parts II and III, infra, the Regulations impose
viewpoint-based restrictions upon protected speech, and are aimed at a woman's
decision whether to continue or terminate her pregnancy. In both respects, they
implicate core constitutional values. This verity is evidenced by the fact that
two of the three Courts of Appeals that have entertained challenges to the
Regulations have invalidated them on constitutional grounds. See Massachusetts
v. Secretary of Health and Human Services, 899 F.2d 53 (CA1 1990); Planned
Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (CA10 1990). [500 U.S. 173, 206]
A divided panel of the Tenth Circuit found the Regulations "fal[l] squarely
within the prohibition in Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986), and City of Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416 (1983), against intrusion into the
advice a woman requests from or is given by her doctor." Id., at 1501. The First
Circuit, en banc with one judge dissenting, found the regulations to violate
both the privacy rights of Title X patients and the First Amendment rights of
Title X grantees. See also 889 F.2d 401, 415 (CA2 1989) (Kearse, J., dissenting
in part). That a bare majority of this Court today reaches a different result
does not change the fact that the constitutional questions raised by the
Regulations are both grave and doubtful.
Nor is this a case in which the statutory language itself requires us to
address a constitutional question. Section 1008 of the Public Health Service
Act, 84 Stat. 1508, 42 U.S.C. 300a-6, provides simply: "None of the funds
appropriated under this title shall be used in programs where abortion is a
method of family planning." The majority concedes that this language "does not
speak directly to the issues of counseling, referral, advocacy, or program
integrity," ante, at 184, and that "the legislative history is ambiguous" in
this respect. Ante, at 186. Consequently, the language of 1008 easily sustains a
constitutionally trouble-free interpretation.1 [500 U.S. 173, 207]
Thus, this is not a situation in which "the intention of Congress is revealed
too distinctly to permit us to ignore it because of mere misgivings as to
power." George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). Indeed, it
would appear that our duty to avoid passing unnecessarily upon important
constitutional questions is strongest where, as here, the language of the
statute is decidedly ambiguous. It is both logical and eminently prudent to
assume that, when Congress intends to press the limits of constitutionality in
its enactments, it will express that intent in explicit and unambiguous terms.
See Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2113
(1990) ("It is thus implausible that, after Chevron, agency interpretations of
ambiguous statutes will prevail even if the consequence of those interpretations
is to produce invalidity or to raise serious constitutional doubts").
Because I conclude that a plainly constitutional construction of 1008 "is not
only `fairly possible' but entirely reasonable," Machinists, 367 U.S., at 750, I
would reverse the judgment of the Court of Appeals on this ground without
deciding the constitutionality of the Secretary's Regulations.
I also strongly disagree with the majority's disposition of
petitioners' constitutional claims, and because I feel that a response thereto
is indicated, I move on to that issue.
Until today, the Court never has upheld viewpoint-based
suppression of speech simply because that suppression was a condition upon the
acceptance of public funds. Whatever may be the Government's power to condition
the receipt of its largess upon the relinquishment of constitutional rights, it
surely does not extend to a condition that suppresses the recipient's cherished
freedom of speech based solely upon the content or viewpoint of that speech.
Speiser v. Randall, 357 U.S. 513, 518-519 (1958) ("To deny an exemption to
claimants [500 U.S. 173, 208] who engage in certain forms of speech
is in effect to penalize them for such speech. . . . The denial is `frankly
aimed at the suppression of dangerous ideas,'" quoting American Communications
Assn. v. Douds, 339 U.S. 382, 402 (1950)). See Cammarano v. United States, 358
U.S. 498, 513 (1959). See also League of Women Voters of Cal., 468 U.S. 364, 407
(1984) (REHNQUIST, J., dissenting). Cf. Arkansas Writers' Project, Inc. v.
Ragland, 481 U.S. 221, 237 (1987) (SCALIA, J., dissenting). This rule is a sound
one, for, as the Court often has noted: "`A regulation of speech that is
motivated by nothing more than a desire to curtail expression of a particular
point of view on controversial issues of general interest is the purest example
of a "law . . . abridging the freedom of speech, or of the press."'" League of
Women Voters, 468 U.S., at 383-384, quoting Consolidated Edison Co. of N.Y. v.
Public Service Comm'n of N.Y., 447 U.S. 530, 546 (1980) (STEVENS, J., concurring
in judgment). "[A]bove all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject
matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95
Nothing in the Court's opinion in Regan v. Taxation with Representation of
Washington, 461 U.S. 540 (1983), can be said to challenge this long-settled
understanding. In Regan, the Court upheld a content-neutral provision of the
Internal Revenue Code, 26 U.S.C. 501(c)(3), that disallowed a particular
tax-exempt status to organizations that "attempt[ed] to influence legislation,"
while affording such status to veterans' organizations irrespective of their
lobbying activities. Finding the case controlled by Cammarano, supra, the Court
explained: "The case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to "`ai[m] at the suppression of
dangerous ideas.'" . . . We find no indication that the statute was intended to
suppress any ideas or any demonstration that it has had that effect." 461 U.S.,
at 548, quoting Cammarano, 358 U.S., at 513, [500
U.S. 173, 209] in turn quoting Speiser, 357 U.S., at 519. The separate
concurrence in Regan joined the Court's opinion precisely "[b]ecause 26 U.S.C.
501's discrimination between veterans' organizations and charitable
organizations is not based on the content of their speech." 461 U.S., at 551.
It cannot seriously be disputed that the counseling and referral provisions
at issue in the present cases constitute content-based regulation of speech.
Title X grantees may provide counseling and referral regarding any of a wide
range of family planning and other topics, save abortion. Cf. Consolidated
Edison Co., 447 U.S., at 537 ("The First Amendment's hostility to content-based
regulation extends not only to restrictions on particular viewpoints, but also
to prohibition of public discussion of an entire topic"); Boos v. Barry, 485
U.S. 312, 319 (1988) (opinion of O'CONNOR, J.) (same).
The Regulations are also clearly viewpoint-based. While suppressing speech
favorable to abortion with one hand, the Secretary compels anti-abortion speech
with the other. For example, the Department of Health and Human Services' own
description of the Regulations makes plain that "Title X projects are required
to facilitate access to prenatal care and social services, including adoption
services, that might be needed by the pregnant client to promote her wellbeing
and that of her child, while making it abundantly clear that the project is not
permitted to promote abortion by facilitating access to abortion through the
referral process." 53 Fed. Reg. 2927 (1988) (emphasis added).
Moreover, the Regulations command that a project refer for prenatal care each
woman diagnosed as pregnant, irrespective of the woman's expressed desire to
continue or terminate her pregnancy. 42 CFR 59.8(a)(2) (1990). If a client asks
directly about abortion, a Title X physician or counselor is required to say, in
essence, that the project does not consider abortion to be an appropriate method
of family planning. 59.8(b)(4). Both requirements are antithetical to
[500 U.S. 173, 210] the First Amendment. See Wooley v. Maynard, 430 U.S.
705, 714 (1977).
The Regulations pertaining to "advocacy" are even more explicitly
viewpoint-based. These provide: "A Title X project may not encourage, promote or
advocate abortion as a method of family planning." 59.10 (emphasis added). They
explain: "This requirement prohibits actions to assist women to obtain abortions
or increase the availability or accessibility of abortion for family planning
purposes." 59.10(a) (emphasis added). The Regulations do not, however, proscribe
or even regulate antiabortion advocacy. These are clearly restrictions aimed at
the suppression of "dangerous ideas."
Remarkably, the majority concludes that "the Government has not discriminated
on the basis of viewpoint; it has merely chosen to fund one activity to the
exclusion of another." Ante at 193. But the majority's claim that the
Regulations merely limit a Title X project's speech to preventive or
preconceptional services, ibid., rings hollow in light of the broad range of
non-preventive services that the Regulations authorize Title X projects to
provide.2 By refusing to fund those family
planning projects that advocate abortion because they advocate abortion, the
Government plainly has targeted a particular viewpoint. Cf. Ward v. Rock Against
Racism, 491 U.S. 781 (1989). The majority's reliance on the fact that the
Regulations pertain solely to funding decisions simply begs the question.
Clearly, there are some bases upon which government may not rest its decision to
fund or not to fund. For example, the Members of the majority surely would agree
that government may not base its [500 U.S. 173,
211] decision to support an activity upon considerations of race. See,
e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). As demonstrated above, our cases
make clear that ideological viewpoint is a similarly repugnant ground upon which
to base funding decisions.
The majority's reliance upon Regan in this connection is also misplaced. That
case stands for the proposition that government has no obligation to subsidize a
private party's efforts to petition the legislature regarding its views. Thus,
if the challenged Regulations were confined to nonideological limitations upon
the use of Title X funds for lobbying activities, there would exist no violation
of the First Amendment. The advocacy Regulations at issue here, however, are not
limited to lobbying, but extend to all speech having the effect of encouraging,
promoting, or advocating abortion as a method of family planning. 42 CFR
59.10(a). Thus, in addition to their impermissible focus upon the viewpoint of
regulated speech, the provisions intrude upon a wide range of communicative
conduct, including the very words spoken to a woman by her physician. By
manipulating the content of the doctor/patient dialogue, the Regulations upheld
today force each of the petitioners "to be an instrument for fostering public
adherence to an ideological point of view [he or she] finds unacceptable."
Wooley v. Maynard, 430 U.S., at 715. This type of intrusive, ideologically based
regulation of speech goes far beyond the narrow lobbying limitations approved in
Regan, and cannot be justified simply because it is a condition upon the receipt
of a governmental benefit.3 [500 U.S. 173, 212]
The Court concludes that the challenged Regulations do not
violate the First Amendment rights of Title X staff members, because any
limitation of the employees' freedom of expression is simply a consequence of
their decision to accept employment at a federally funded project. Ante at
198-199. But it has never been sufficient to justify an otherwise
unconstitutional condition upon public employment that the employee may escape
the condition by relinquishing his or her job. It is beyond question "that a
government may not require an individual to relinquish rights guaranteed him by
the First Amendment as a condition of public employment." Abood v. Detroit Bd.
of Ed., 431 U.S. 209, 234 (1977), citing Elrod v. Burns, 427 U.S. 347, 357-360
(1976), and cases cited therein; Perry v. Sindermann, 408 U.S. 593 (1972);
Keyishian v. Board of Regents, State Univ. of N.Y. 385 U.S. 589 (1967). Nearly
two decades ago, it was said:
"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 upon which the government may not rely. It may not
deny a benefit to a person on a basis that infringes his constitutionally
protected interests - especially, his interest in freedom of speech. For if
the government could deny a benefit to a [500
U.S. 173, 213] person because of his constitutionally protected
speech or associations, his exercise of those freedoms would, in effect, be
penalized and inhibited. This would allow the government to "produce a
result which [it] could not command directly.'" Perry v. Sindermann, 408
U.S., at 597, quoting Speiser v. Randall, 357 U.S., at 526.
The majority attempts to circumvent this principle by emphasizing that Title
X physicians and counselors "remain free . . . to pursue abortion-related
activities when they are not acting under the auspices of the Title X project."
Ante at 198. "The regulations," the majority explains, "do not in any way
restrict the activities of those persons acting as private individuals." Ante,
at 198, 199. Under the majority's reasoning, the First Amendment could be read
to tolerate any governmental restriction upon an employee's speech so long as
that restriction is limited to the funded workplace. This is a dangerous
proposition, and one the Court has rightly rejected in the past.
In Abood, it was no answer to the petitioners' claim of compelled speech as a
condition upon public employment that their speech outside the workplace
remained unregulated by the State. Nor was the public employee's First Amendment
claim in Rankin v. McPherson, 483 U.S. 378 (1987), derogated because the
communication that her employer sought to punish occurred during business hours.
At the least, such conditions require courts to balance the speaker's interest
in the message against those of government in preventing its dissemination. Id.,
at 384; Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
In the cases at bar, the speaker's interest in the communication is both
clear and vital. In addressing the family planning needs of their clients, the
physicians and counselors who staff Title X projects seek to provide them with
the full range of information and options regarding their health and
reproductive freedom. Indeed, the legitimate expectations
[500 U.S. 173, 214] of the patient and the ethical responsibilities of
the medical profession demand no less. "The patient's right of self-decision can
be effectively exercised only if the patient possesses enough information to
enable an intelligent choice. . . . The physician has an ethical obligation to
help the patient make choices from among the therapeutic alternatives consistent
with good medical practice." Current Opinions, the Council on Ethical and
Judicial Affairs of the American Medical Association _ 8.08 (1989). See also
President's Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, Making Health Care Decisions 70 (1982);
American College of Obstetricians & Gynecologists, Standards for
Obstetric-Gynecologic Services 62 (7th ed. 1989). When a client becomes
pregnant, the full range of therapeutic alternatives includes the abortion
option, and Title X counselors' interest in providing this information is
The Government's articulated interest in distorting the doctor/patient
dialogue - ensuring that federal funds are not spent for a purpose outside the
scope of the program - falls far short of that necessary to justify the
suppression of truthful information and professional medical opinion regarding
constitutionally protected conduct.4 Moreover, the offending Regulation is not narrowly tailored to
serve this interest. For example, the governmental interest at stake could be
served by imposing rigorous bookkeeping standards to ensure financial separation
or adopting content-neutral rules for the balanced dissemination of family
planning and health information. See Massachusetts v. Secretary of Health &
Human Services, 899 F.2d 53, 74 (CA1 1990), cert. pending, No. 89-1929. By
failing to balance or even to consider the free speech interests claimed by
Title X physicians against the Government's asserted interest in suppressing the
speech, the Court falters in its duty to implement the protection
[500 U.S. 173, 215] that the First Amendment clearly provides for this
Finally, it is of no small significance that the speech the
Secretary would suppress is truthful information regarding constitutionally
protected conduct of vital importance to the listener. One can imagine no
legitimate governmental interest that might be served by suppressing such
information. Concededly, the abortion debate is among the most divisive and
contentious issues that our Nation has faced in recent years. "But freedom to
differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things
that touch the heart of the existing order." West Virginia Bd. of Ed. v.
Barnette, 319 U.S. 624, 642 (1943).
By far the most disturbing aspect of today's ruling is the
effect it will have on the Fifth Amendment rights of the women who, supposedly,
are beneficiaries of Title X programs. The majority rejects petitioners' Fifth
Amendment claims summarily. It relies primarily upon the decisions in Harris v.
McRae, 448 U.S. 297 (1980), and Webster v. Reproductive Health Services, 492
U.S. 490 (1989). There were dissents in those cases, and we continue to believe
that they were wrongly and unfortunately decided. Be that as it may, even if one
accepts as valid the Court's theorizing in those cases, the majority's reasoning
in the present cases is flawed.
Until today, the Court has allowed to stand only those restrictions upon
reproductive freedom that, while limiting the availability of abortion, have
left intact a woman's ability to decide without coercion whether she will
continue her pregnancy to term. Maher v. Roe, 432 U.S. 464 (1977), McRae, and
Webster are all to this effect. Today's decision abandons that principle, and
with disastrous results. [500 U.S. 173, 216]
Contrary to the majority's characterization, this is not a case in which
individuals seek government aid in exercising their fundamental rights. The
Fifth Amendment right asserted by petitioners is the right of a pregnant woman
to be free from affirmative governmental interference in her decision. Roe v.
Wade, 410 U.S. 113 (1973), and its progeny are not so much about a medical
procedure as they are about a woman's fundamental right to self-determination.
Those cases serve to vindicate the idea that "liberty," if it means anything,
must entail freedom from governmental domination in making the most intimate and
personal of decisions. See, e.g., Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 444 (1983) (governmental interest in ensuring that pregnant
women receive medically relevant information "will not justify abortion
regulations designed to influence the woman's informed choice between abortion
or childbirth"); Maher v. Roe, 432 U.S., at 473 (noting that the Court's
abortion cases "recognize a constitutionally protected interest `in making
certain kinds of important decisions' free from governmental compulsion,"
quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)); see also Harris v. McRae, 448
U.S., at 312; Thornburgh, 476 U.S., 747, 759; Roe v. Wade, 410 U.S., at 169-170
(Stewart, J., concurring). By suppressing medically pertinent information and
injecting a restrictive ideological message unrelated to considerations of
maternal health, the Government places formidable obstacles in the path of Title
X clients' freedom of choice and thereby violates their Fifth Amendment rights.
It is crystal clear that the aim of the challenged provisions - an aim the
majority cannot escape noticing - is not simply to ensure that federal funds are
not used to perform abortions, but to "reduce the incidence of abortion." 42 CFR
59.2 (1990) (in definition of "family planning"). As recounted above, the
Regulations require Title X physicians and counselors to provide information
pertaining only to childbirth, [500 U.S. 173,
217] to refer a pregnant woman for prenatal care irrespective of her
medical situation, and, upon direct inquiry, to respond that abortion is not an
"appropriate method" of family planning.
The undeniable message conveyed by this forced speech, and the one that the
Title X client will draw from it, is that abortion nearly always is an improper
medical option. Although her physician's words, in fact, are strictly controlled
by the Government, and wholly unrelated to her particular medical situation, the
Title X client will reasonably construe them as professional advice to forgo her
right to obtain an abortion. As would most rational patients, many of these
women will follow that perceived advice and carry their pregnancy to term,
despite their needs to the contrary and despite the safety of the abortion
procedure for the vast majority of them. Others, delayed by the Regulations'
mandatory prenatal referral, will be prevented from acquiring abortions during
the period in which the process is medically sound and constitutionally
In view of the inevitable effect of the Regulations, the majority's
conclusion that "[t]he difficulty that a woman encounters when a Title X project
does not provide abortion counseling or referral leaves her in no different
position than she would have been if the government had not enacted Title X,"
ante at 202, is insensitive and contrary to common human experience. Both the
purpose and result of the challenged Regulations are to deny women the ability
voluntarily to decide their procreative destiny. For these women, the Government
will have obliterated the freedom to choose as surely as if it had banned
abortions outright. The denial of this freedom is not a consequence of poverty,
but of the Government's ill-intentioned distortion of information it has chosen
to provide.5 [500 U.S. 173, 218]
The substantial obstacles to bodily self-determination that the Regulations
impose are doubly offensive because they are effected by manipulating the very
words spoken by physicians and counselors to their patients. In our society, the
doctor/patient dialogue embodies a unique relationship of trust. The specialized
nature of medical science and the emotional distress often attendant to
health-related decisions requires that patients place their complete confidence,
and often their very lives, in the hands of medical professionals. One seeks a
physician's aid not only for medication or diagnosis, but also for guidance,
professional judgment, and vital emotional support. Accordingly, each of us
attaches profound importance and authority to the words of advice spoken by the
It is for this reason that we have guarded so jealously the doctor/patient
dialogue from governmental intrusion. "[I]n Roe and subsequent cases, we have
"stressed repeatedly the central role of the physician, both in consulting with
the woman about whether or not to have an abortion, and in determining how any
abortion was to be carried out.'" Akron, 462 U.S., at 447 quoting Colautti v.
Franklin, 439 U.S. 379, 387 (1979). See also Thornburgh, 476 U.S., at 763. The
majority's approval of the Secretary's Regulations flies in the face of our
repeated warnings that regulations tending to "confine the attending physician
in an undesired and uncomfortable straitjacket in the practice of his
profession," cannot endure. Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 67, n. 8 (1976).
The majority attempts to distinguish our holdings in Akron and Thornburgh on
the post hoc basis that the governmental [500
U.S. 173, 219]
intrusions into the doctor/patient dialogue invalidated in those cases applied
to all physicians within a jurisdiction while the Regulations now before the
Court pertain to the narrow class of healthcare professionals employed at Title
X projects. Ante at 202. But the rights protected by the Constitution are
personal rights. Loving v. Virginia, 388 U.S. 1, 12 (1967); Shelley v. Kraemer,
334 U.S. 1, 22 (1948). And for the individual woman, the deprivation of liberty
by the Government is no less substantial because it affects few, rather than
many. It cannot be that an otherwise unconstitutional infringement of choice is
made lawful because it touches only some of the Nation's pregnant women, and not
all of them.
The manipulation of the doctor/patient dialogue achieved through the
Secretary's Regulations is clearly an effort "to deter a woman from making a
decision that, with her physician, is hers to make." Thornburgh, 476 U.S., at
759. As such, it violates the Fifth Amendment.6
In its haste further to restrict the right of every woman to
control her reproductive freedom and bodily integrity, the majority disregards
established principles of law and contorts this Court's decided cases to arrive
at its preordained result. The majority professes to leave undisturbed the free
speech protections upon which our society has come to rely, but one must wonder
what force the First Amendment retains if it is read to countenance the
deliberate manipulation by the Government [500 U.S. 173, 220] of the dialogue between a woman and
her physician. While technically leaving intact the fundamental right protected
by Roe v. Wade, the Court, "through a relentlessly formalistic catechism,"
McRae, 448 U.S., at 341 (MARSHALL, J., dissenting), once again has rendered the
right's substance nugatory. See Webster v. Reproductive Health Services, 492
U.S., at 537, 560 (opinions concurring in part and dissenting in part). This is
a course nearly as noxious as overruling Roe directly, for if a right is found
to be unenforceable, even against flagrant attempts by government to circumvent
it, then it ceases to be a right at all. This, I fear, may be the effect of
[Footnote 1] The majority states: "There
is no question but that the statutory prohibition contained in 1008 is
constitutional." Ante at 192. This statement simply begs the question. Were the
Court to read 1008 to prohibit only the actual performance of abortions with
Title X fund as, indeed, the Secretary did until February 2, 1988, see 53
Bed.Reg. 2923 (1988) - the provision would fall within the category of
restrictions that the Court upheld in Harris v. McRae, 448 U.S. 297 (1980), and
Maher v. Roe, 432 U.S. 464 (1977). By interpreting the statute to authorize the
regulation of abortion-related speech between physician and patient, however,
the Secretary, and now the Court, have rejected a constitutionally sound
construction in favor of one that is by no means clearly constitutional.
[Footnote 2] In addition to requiring
referral for prenatal care and adoption services, the Regulations permit general
health services such as physical examinations, screening for breast cancer,
treatment of gynecological problems, and treatment for sexually transmitted
diseases. 53 Fed. Reg. 2927 (1988). None of the latter are strictly preventive,
[Footnote 3] The majority attempts to
obscure the breadth of its decision through its curious contention that "the
Title X program regulations do not significantly impinge upon the doctor-patient
relationship." Ante at 200. That the doctor-patient relationship is
substantially burdened by a rule prohibiting the dissemination by the physician
of pertinent medical information is beyond serious dispute. This burden is
undiminished by the fact that the relationship at issue here is not an
"all-encompassing" one. A woman seeking the services of a Title X clinic has
every reason to expect, as do we all, that her physician will not withhold
relevant information regarding the [500 U.S. 173,
212] very purpose of her visit. To suggest otherwise is to engage in
uninformed fantasy. Further, to hold that the doctor-patient relationship is
somehow incomplete where a patient lacks the resources to seek comprehensive
health care from a single provider is to ignore the situation of a vast number
of Americans. As JUSTICE MARSHALL has noted in a different context: "It is
perfectly proper for judges to disagree about what the Constitution requires.
But it is disgraceful for an interpretation of the Constitution to be premised
upon unfounded assumptions about how people live. United States v. Kras, 409
U.S. 434, 460 (1973) (dissenting opinion).
[Footnote 4] It is to be noted that the
Secretary has made no claim that the Regulations at issue reflect any concern
for the health or welfare of Title X clients.
[Footnote 5] In the context of common
law tort liability, commentators have recognized: "If there is no duty to go to
the assistance of a person in difficulty or peril, there is at least a duty to
avoid any affirmative acts which make his [500
U.S. 173, 218]
situation worse. . . . The same is true, of course, of a physician who accepts a
charity patient. Such a defendant will then be liable for a failure to use
reasonable care for the protection of the plaintiffs interests. W. Keeton, D.
Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 56, p. 378
(5th ed. 1984) (footnotes omitted). This observation seems equally appropriate
to the cases at bar.
[Footnote 6] Significantly, the Court
interprets the challenged regulations to allow a Title X project to refer a
woman whose health would be seriously endangered by continued pregnancy to an
abortion provider. Ante at 195. To hold otherwise would be to adopt an
interpretation that would most certainly violate a patient's right to
substantive due process. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982);
Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983). The Solicitor
General at oral argument, however, afforded the regulations a far less
charitable interpretation. See Tr. of Oral Arg. 44-47.
JUSTICE STEVENS, dissenting.
In my opinion, the Court has not paid sufficient attention to the language of
the controlling statute or to the consistent interpretation accorded the statute
by the responsible cabinet officers during four different Presidencies and 18
The relevant text of the "Family Planning Services and Population Research
Act of 1970" has remained unchanged since its enactment. 84 Stat. 1504. The
preamble to the Act states that it was passed:
"To promote public health and welfare by expanding, improving, and better
coordinating the family planning services and population research activities
of the Federal Government, and for other purposes." Ibid.
The declaration of congressional purposes emphasizes the importance of
educating the public about family planning services. Thus, 2 of the Act states,
in part, that the purpose of the Act is:
"(1) to assist in making comprehensive voluntary family planning services
readily available to all persons desiring such services;
. . . . .
"(5) to develop and make readily available information (including
educational materials) on family planning and
[500 U.S. 173, 221]
population growth to all persons desiring such information." 42 U.S.C. 300
(Congressional Declaration of Purpose).
In contrast to the statutory emphasis on making relevant information readily
available to the public, the statute contains no suggestion that Congress
intended to authorize the suppression or censorship of any information by any
Government employee or by any grant recipient.
Section 6 of the Act authorizes the provision of federal funds to support the
establishment and operation of voluntary family planning projects. The section
also empowers the Secretary to promulgate regulations imposing conditions on
grant recipients to ensure that "such grants will be effectively utilized for
the purposes for which made." 300a-4(b). Not a word in the statute, however,
authorizes the Secretary to impose any restrictions on the dissemination of
truthful information or professional advice by grant recipients.
The word "prohibition" is used only once in the Act. Section 6, which adds to
the Public Health Service Act the new Title X, covering the subject of
population research and voluntary planning programs, includes the following
PROHIBITION OF ABORTION
"SEC. 1008. None of the funds appropriated under this title shall be used
in programs where abortion is a method of family planning. 84 Stat. 1508, 42
Read in the context of the entire statute, this prohibition is plainly
directed at conduct, rather than the dissemination of information or advice, by
potential grant recipients.
The original regulations promulgated in 1971 by the Secretary of Health,
Education and Welfare so interpreted the statute. This "`contemporaneous
construction of [the] statute by the men charged with the responsibility of
setting its machinery in motion'" is entitled to particular respect. See Power
Reactor Development Co. v. Electrical Workers,
[500 U.S. 173, 222] 367 U.S. 396, 408 (1961) (citation omitted); Udall
v. Tallman, 380 U.S. 1, 16 (1965); Aluminum Co. of America v. Central Lincoln
Peoples' Utility Dist., 467 U.S. 380, 390 (1984). The regulations described the
kind of services that grant recipients had to provide in order to be eligible
for federal funding, but they did not purport to regulate or restrict the kinds
of advice or information that recipients might make available to their clients.
Conforming to the language of the governing statute, the regulations provided
that "[t]he project will not provide abortions as a method of family planning."
42 CFR 59.5(a)(9) (1972) (emphasis added). Like the statute itself, the
regulations prohibited conduct, not speech.
The same is true of the regulations promulgated in 1986 by the Secretary of
Health and Human Services. They also prohibited grant recipients from performing
abortions, but did not purport to censor or mandate any kind of speech. See 42
CFR 59.1-59.13 (1986).
The entirely new approach adopted by the Secretary in 1988 was not, in my
view, authorized by the statute. The new regulations did not merely reflect a
change in a policy determination that the Secretary had been authorized by
Congress to make. Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Counsel,
Inc., 467 U.S. 837, 865 (1984). Rather, they represented an assumption of
policymaking responsibility that Congress had not delegated to the Secretary.
See id. at 842-843 ("If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress"). In a society that abhors
censorship and in which policymakers have traditionally placed the highest value
on the freedom to communicate, it is unrealistic to conclude that statutory
authority to regulate conduct implicitly authorized the Executive to regulate
Because I am convinced that the 1970 Act did not authorize the Secretary to
censor the speech of grant recipients or their
[500 U.S. 173, 223]
employees, I would hold the challenged regulations invalid and reverse the
judgment of the Court of Appeals.
Even if I thought the statute were ambiguous, however, I would reach the same
result for the reasons stated in JUSTICE O'CONNOR's dissenting opinion. As she
also explains, if a majority of the Court had reached this result, it would be
improper to comment on the constitutional issues that the parties have debated.
Because the majority has reached out to decide the constitutional questions,
however, I am persuaded that JUSTICE BLACKMUN is correct in concluding that the
majority's arguments merit a response. I am also persuaded that JUSTICE BLACKMUN
has correctly analyzed these issues. I have therefore joined Parts II and III of
JUSTICE O'CONNOR, dissenting.
"[W]here an otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to the
intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council, 485 U.S. 568, 575 (1988). JUSTICE
BLACKMUN has explained well why this longstanding canon of statutory
construction applies in this case, and I join Part I of his dissent. Part II
demonstrates why the challenged regulations, which constitute the
Secretary's interpretation of 1008 of the Public Health Service Act, 84
Stat. 1508, 42 U.S.C. 300a-6, "raise serious constitutional problems": the
regulations place content-based restrictions on the speech of Title X fund
recipients, restrictions directed precisely at speech concerning one of "the
most divisive and contentious issues that our Nation has faced in recent
years." Ante, at 215.
One may well conclude, as JUSTICE BLACKMUN does in Part II, that the
regulations are unconstitutional for this reason. I do not join Part II of the
dissent, however, for the same reason that I do not join Part III, in which
JUSTICE [500 U.S. 173, 224] BLACKMUN
concludes that the regulations are unconstitutional under the Fifth Amendment.
The canon of construction that JUSTICE BLACKMUN correctly applies here is
grounded in large part upon our time-honored practice of not reaching
constitutional questions unnecessarily. See DeBartolo, supra, at 575. "It is a
fundamental rule of judicial restraint . . . that this Court will not reach
constitutional questions in advance of the necessity of deciding them." Three
Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467
U.S. 138, 157 (1984). See also Alexander v. Louisiana, 405 U.S. 625, 633 (1972);
Burton v. United States, 196 U.S. 283, 295 (1905); Liverpool, New York and
Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885) (In
the exercise of its jurisdiction to pronounce unconstitutional laws of the
United States, this Court "has rigidly adhered" to the rule "never to anticipate
a question of constitutional law in advance of the necessity of deciding it").
This Court acts at the limits of its power when it invalidates a law on
constitutional grounds. In recognition of our place in the constitutional
scheme, we must act with "great gravity and delicacy" when telling a coordinate
branch that its actions are absolutely prohibited absent constitutional
amendment. Adkins v. Children's Hospital of District of Columbia, 261 U.S. 525,
544 (1923). See also Blodgett v. Holden, 275 U.S. 142, 147-148 (1927) (Holmes,
J., concurring). In this case, we need only tell the Secretary that his
regulations are not a reasonable interpretation of the statute; we need not tell
Congress that it cannot pass such legislation. If we rule solely on statutory
grounds, Congress retains the power to force the constitutional question by
legislating more explicitly. It may instead choose to do nothing. That decision
should be left to Congress; we should not tell Congress what it cannot do before
it has chosen to do it. It is enough in this case to conclude that neither the
language nor the history of 1008 compels the Secretary's interpretation,
[500 U.S. 173, 225] and that the interpretation raises serious First
Amendment concerns. On this basis alone, I would reverse the judgment of the
Court of Appeals and invalidate the challenged regulations. [500 U.S. 173, 226]
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