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the Body Politic
Vol. 01, No. 06 - June 1991, Page 2
Copyright © 1991, 1998 by the Body Politic Inc.
Rust vs. Sullivan: Excerpts
A: Did the Secretary exceed his authority by promulgating the new regulations?
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' express intent.
The broad language of Title X plainly allows the Secretary's construction of the statute. By its own terms, section 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 section 1008 in particular, referral, and advocacy within the Title X project, is impermissible.
(The Secretary) 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.
Justice Blackmun - 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.
Justice Stevens - 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. Rather, they represented an assumption of policymaking responsibility that Congress had not delegated to the Secretary. In a society that abhors censorship and in which policymakers have traditionally placed the highest value on freedom to communicate, it is unrealistic to conclude that statutory authority to regulate conduct implicitly authorized the Executive to regulate speech.
Justice O'Conner - It is enough in this case to conclude that neither the language nor the history of section 1008 compels the Secretary's interpretation, 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.
2) Program Integrity
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 to infer such an intent are highly generalized, and do not directly address the scope of section 1008.
Certainly the Secretary's interpretation of the statute that separate facilities are necessary, especially in light of the express prohibition of section 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.
Justice Stevens - 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." Not a word in the statute, however, authorizes the Secretary to impose any restriction on the dissemination of truthful information or professional advice by grant recipients."
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." Like the statute itself, the regulations prohibited conduct, not speech.
B: Are the regulations Constitutional?
1) First Amendment
[Employees] 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. Employees remain free, however, to pursue abortion-related activities when they are not acting under the auspices of the Title X project.
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...or declining the subsidy and financing their own unsubsidized program.
[Employees] 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. 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."
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.
[Doctors] It could be argued...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 doctor-patient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold.... The program does not provide post-conception medical care, and therefore a doctor's silence with regard to abortion cannot reasonable be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her. ...the general rule that the Government may choose not to subsidize speech applies with full force.
[Doctors] 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." 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 very purpose of her visit. To suggest otherwise is to engage in uninformed fantasy.
[Conclusion] The extensive litigation regarding governmental restrictions on abortion since our decision in Roe vs. Wade 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", 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.
[Conclusion] 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.... By failing to balance or even to consider the free speech interests claimed by Title X physicians...the Court falters in its duty to implement the protection that the First Amendment clearly provides for this important message.
2) Fifth Amendment
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. The Government has no affirmative duty to "commit any resources to facilitating abortions," Webster, -- 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.
The difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in different position than she would have been if the government had not enacted Title X.
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
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, McRae, and Webster are all to this effect. Today's decision abandons that principle with disastrous results.
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.
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...is insensitive and contrary to common human experience. Both the purpose and result of the challenged Regulations is 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 abortion 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.
...the rights protected by the Constitution are personal rights. 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 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 isAffirmed
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." As such. it violates the Fifth Amendment.
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. [emphasis added].
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