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the Body Politic
Vol. 01, No. 06 - June 1991, Page 13
Copyright © 1991, 1998 by the Body Politic Inc.

Rust vs. Sullivan: Comments


Legal Comments

Rachel Pine - ACLU lead counsel on Rust vs. Sullivan

As a lawyer involved in the case, Ms. Pine was told of the decision by the Supreme Court. When asked what she felt, Ms. Pine replied, "Not much. It's rather like a funeral. There is so much to do. You just work on the technicalities around the event."

She had harbored some hope. Justice Souter was an unknown quantity, and still is, because he expressed no independent views on the majority decision. When asked what surprised her most, Ms. Pine replied, "Nothing, really. It's hard to be surprised when you have worked on something as long as I have, and when you are used to dealing with the Supreme Court."

Now Ms. Pine and the ACLU will be intensifying efforts to overturn the "gag rule" at the national level, by supporting the Title X Pregnancy Counseling Act of 1991 (see Rust vs. Sullivan: Action on page 19). Ms. Pine believes there is a good possibility of the acts passage, but possibly not enough votes to override a Presidential veto.

In the next few weeks, Ms. Pine and the Reproductive Freedom Project of the ACLU will be doing an in-depth analysis which will address questions such as:


PPFA: Brief -- Legal Analysis of Rust v. Sullivan

The Court held first that the regulations did not conflict with the Title X statute, which prohibits Title X funds from being used in any program "where abortion is a method of family planning." The Court said the administration's interpretation of the statutory language to prohibit giving information about abortion and to require separation of abortion activities was a "reasonable one." Even though the rule was a reversal of 18 years of policies that had allowed options counseling and abortion referral in the Title X program, the Court said the Secretary made a reasoned decision to change the policy on the basis of a "shift in attitude toward the elimination of unborn children by abortion."

The Court further held that the regulations did not violate the First Amendment or the right to choose abortion. Rejecting arguments that the regulations improperly censored physician speech, interfered with the patient's right to know and impeded access to abortion, the Court said the government had no obligation to pay for the exercise of constitutional rights. According to the court, the government's mere decision not to fund the provision of information did not directly interfere with the rights of the doctors, the clinics or the patients, since providers are free to offer abortions and abortion-related information in separate programs, and women are free to seek information and services, albeit not at government expense. This holding completely ignores the fact that the regulations bar Title X programs from referring their patients to sources of uncensored advice, including a Title X recipient's own separately funded program. The holding also ignores the substantial financial costs of the requirements of separate physical facilities and staff.


Rhonda Copelon, Esq. "Now they've mangled the First Amendment"

Professor Copelon heard of the decision from one of her students at CUNY (The City University of New York) Law School where she teaches. She felt outrage but not the same emotional shock she experienced when the Court ruled in 1977 in Maher v. Roe that Medicaid could eliminate elective abortions. "That was like being punched in the stomach." Another hit was Harris v. McRae which she argued before the U.S. Supreme Court and which lopped off medically necessary abortions. That, Professor Copelon felt, "took cruelty to a new dimension." Webster v. Reproductive Health Services which upheld laws forbidding abortions to be performed in hospitals having any connection to the state, and now Rust, which imposed a gag rule, extends the mean injustice of these earlier decisions, further victimizing poor women."

"First they took away the right to abortions as part of comprehensive health care; now they have taken the right even to information that is an option. The lack of funding for abortion makes abortion unobtainable for many poor women, and makes clear that the right even to non-interference by the state is a privilege of wealth and not of personhood. The upholding of the gag rule in Rust is chilling in a different way in that it places a constitutional imprimatur on the power of the state to control ideas it doesn't like when people are dependent on public resources. This very effort underscores both the contempt for poor women and the religiosity of the anti-abortion movement."

"The court has opened the door to far-reaching censorship to wipe out the 'abortion heresy' in any institution or program that receives public funding or support. From Maher to McRae to Webster to Rust, it should be clear that if the poor are not secure in their rights, on one is. Perhaps we would not have allowed Reagan to transform the judiciary if we had reacted to Maher with the force we brought to Webster."

The assertion that a woman seeking help from the Title X facility will be no worse off after her visit or that the First Amendment is not violated is disingenuous at best because the new regulations mandate that the facility refer a pregnant patient to pre-natal care. This certainly gives the impression that the only medically valid outcome to a pregnancy is birth. Women using a Title X health provider in the future will not be able to even discuss abortion with the counselors let alone learn how to get one safely. Some women will not even realize it is a legal as well as a moral option.

"This decision is a serious invasion of the professional and ethical obligations to inform patients." Professor Copelon had held out some slim hope on this case for the new Justice Souter because he once served on a hospital board and had written an opinion acknowledging the obligation of an anti-abortion doctor under common law to advise a woman of the option of amniocentesis and abortion. His questions during oral arguments also suggested that he might respect the doctor at least. "Now we can only expect the worst from Souter and recognize that letting Justices like Kennedy and Souter slip by the confirmation process because they are less forthcoming about their extremism than someone like Bork is a cataclysmic error."

Professor Copelon mused that, "Perhaps the medical profession will join in the legislative battle to overturn Rust because it is the kind of invasion of professional privilege that doctors can't stand. At the same time that we call on them to react, let us remember that the real issue is not professional privilege but women's basic right to know and to control our own medical care. That's the source of any professional claim. We can't confuse our rights with theirs. They have ethical obligations to provide abortions, but as the heat increase and the memory of illegal abortions dims, how many will be there? We have a lot of work to do to keep abortion safe and available as well as legal."


Donna Lieberman, Esq. - NYCLU - "Unmitigated Disaster for All Women"

Reached at her office the morning of the decision, Ms. Lieberman stated her views on this "unmitigated disaster" of a Supreme Court ruling. "The Federal government is holding women hostage to its anti-choice agenda, and as a result, poor women will loose all reproductive health care services around the country."

According to Ms. Lieberman, "This cloud has no silver lining. We knew this Court was not friendly and Roe was fragile, at best. But here the Court has gone out of its way to undermine the First Amendment to further its anti-choice agenda."

Asked if there was any way around the decision, Ms. Lieberman said, "Demand that Congress right this wrong. Bush doesn't control Congress -- the Court, yes - but not Congress. Hold every Administration program hostage until the harm done is undone."

Ms. Lieberman also stated that, "This Supreme Court decision underscores how important it is for the New York State Court of Appeals to hear the Hope v. Perales case and give a favorable ruling so that the right to abortion is affirmed in our state."


Medical Comments

Dr. Irving Rust, Plaintiff

Dr. Rust, lead plaintiff in the Gag Rule case, heard of the Supreme Court decision in his car on the way to the Hub where he works in the South Bronx. When asked his feelings, Dr. Rust replied, "Really shocked and disappointed. I thought we had a good chance of winning. I had gone down to the Supreme Court for the hearing last Fall, which was a great experience in itself. Justice Souter's questions seemed to show an open mind and his experience on a hospital board gave me hope. Afterward, our lawyers said the questions didn't necessarily mean anything. But I still had hope."

The Supreme Court decision dismayed Dr. Rust, not only as a reproductive rights advocate, but as a physician. "I'm quite upset on three counts. First of all, on the constitutional aspect of free speech. I don't want anyone to 'gag' me in any aspect of my medicine or my life. You want to be able to feel you can speak your mind and tell the truth. Secondly, there is a deep privacy relationship of trust between a doctor and patient. This relationship has been attacked and frustrated by the Supreme Court decision. Then, there is the specter of the possible consequences of this ruling. I'm almost 60 years old -- old enough to remember what it was like for women before legal abortion. I know what women went through and I never want to see that again."

It is obvious that Dr. Rust is deeply saddened by this ruling, but when asked if the rest of the medical community is responding, he was less certain about the possible actions of his fellow physicians. "I don't see any movement in the medical community against this right now. Doctors as a class, tend to be very conservative and ego centric and many medical organizations are also conservative in their thinking. When asked what the medical community's response might be if Roe was overturned, Dr. Rust uttered an emphatic, "Oh my God! It would be terrible - something like prohibition. People wouldn't obey the law - it would undermine law and possibly bring in the criminal element. It might even cause a social upheaval like in the Civil Rights days because there are such strong feelings on both sides of this issue. This is a time when doctors might become activists again."

But abortion is legal for the moment, and right now, Dr. Rust has to cope with the reality of the enforcement of the "gag rules." The Hub, his South Bronx clinic, which serves some of the poorest women in America, will not accept Title X funds under these rules. Dr. Rust says, "We can't comply with the regs. We'll have to cut back on all areas, but try to keep the whole program together. We'll have to seek funds elsewhere. I got a letter with a $50 check from a couple in Brookline Massachusetts. I know there are more people like them."

Dr. Rust's final comments concerned Dr. Sullivan, Secretary of Health and Human Services. When asked if he had ever communicated with Dr. Sullivan, Dr. Rust replied, "No, I haven't. And I'm angry with Louis Sullivan. He is in a position of power and I believe he has an obligation to make a difference. Maybe I'll write him a letter." We'll check with Dr. Rust to see if there is a reply.


Political Comments

Assemblyman Richard Gottfried (D - 64), Chair, Assembly Health Committee

As Chair of the Assembly Health Committee, Richard Gottfried is deeply concerned about the implications for the "gag rule" decision in New York State. During an interview at the Capitol in early June, the Assemblyman voiced the conviction that abortion would remain legal in New York because we have such a strong pro-choice history in the state. The New York State Senate is marginally anti-choice, but the Assembly and his Health Committee is pro-choice. Assemblyman Gottfried cautioned, "Don't take anything for granted. The pro-choice community needs to keep up its advocacy. However, the New York courts are also apparently on our side for the time being, so we continue to be in good shape on the general issue of reproductive freedom."

When it comes to the funding aspects of the "gag rule", the Assemblyman was a little less encouraging. "For many years, we have been able to increase funding for family planning programs in New York. We were unable to do that this year, but the program wasn't really cut, either. In this budget year that is a triumph. However, since the New York State Department of Health is the actual grantee for the state, if they decline the Title X funds, it would be very difficult to find in this year's budget another 8 million dollars (for any service). People in and out of government have to come up with new funding mechanisms. I just can't hold out the promise that the state would find the money."

When asked his personal views on the ruling, Assemblyman Gottfried replied, "It's outrageous on three fronts. As a reproductive rights decision it has obvious bad consequences for choice at the national level. Then there are the First Amendment concerns. Not only is this a restriction on speech but it includes mandated speech. (Insisting that doctors refer all pregnant patients for pre-natal care). It is hard to imagine a U.S. Supreme Court taking that position. Of course, this has grave implications for patient autonomy and the autonomy of health care professionals. In America, health care providers take seriously the notion of a professional's responsibility and obligation to use professional judgment for their patient's benefit. Our legal profession has also gone a long way to protect patient autonomy. This decision is extremely dangerous for both issues, but it goes well beyond reproductive health care."

The Assemblyman praised the New York Courts for "standing up for patient autonomy under law." He ended the interview on a positive note by voicing the opinion that, "Legal protection for abortion in New York is stronger today than ever before. A Roe v. Wade law would win today in our court system."


Congressman Matthew F. McHugh (D)

People have the right to information about abortion, and the right to speak about it with others. I am also concerned that the administration's rules

could set a precedent barring federally funded health care facilities from discussing other lawful medical options or courses of treatment.


Activist's Comments

Polly Rothstein - WCLA

"We will not stand for the image of women on their knees begging for their rights", said Polly Rothstein, President of the Westchester Coalition for Legal Abortion. Ms. Rothstein, who has been a reproductive rights activist for years, learned of the decision while sitting at the computer in her office. An aide for Congressman Engle called about 10:30 and told her the news had just come over the radio - "We lost Rust". Ms. Rothstein then called Carol Reichert at Family Planning Advocates. "Everyone groaned."

Ms. Rothstein had little hope for the outcome of the case. She never believed that Justice Souter would rule pro-choice. "If he was on Meese's short list and good enough for Sununu, that was enough for me. Bush wouldn't nominate anyone to truly damage his standing with the Right Wing of his party."

According to Ms. Rothstein, this proves what she has maintained for years - this is a political issue. "We have got to elect a pro-choice majority. We have to take over the electoral arena and elect people who are committed to reproductive rights for all women. Pro-choice organizations must engage in increased activism in the political arena. Voter Identification Projects should be encouraged all over New York and the Nation. The Pro-Choice Resource Center of the WCLA stands ready to help."


Tanya Melich, President, Republican Family Committee

"OK -- It's war", was Ms. Melich's reaction to the decision in Rust. A call to Ms. Melich's New York office from the editor of the Body Politic prompted her secretary to call Ms. Melich in Maryland where she was preparing for her daughter's college graduation. At first, the decision just made her angry.

But now, the extreme nature of the decision in the case is actually a plus according to Ms. Melich. "There is no confusion about this being a middle of the road ruling. This isn't a wishy-washy decision. This is a Reagan Court and Reagan regulations. It's one thing for a government to censor a program, but now the Court has said the government can censor the speech of those administering and taking part in the program. This is the kind of thing that goes on in authoritarian countries. They've gone a little too far. Apparently Rehnquist has decided it's time to move the Right's agenda."

Ms. Melich remains optimistic that the rules can be overturned. She is urging all her members to immediately write their Congresspersons demanding support for the Title X Pregnancy Counseling Act (see page 19). She believes that, "Once the American people understand this, we'll get enormous support in Congress." She expects a Presidential veto, but thinks that in coalition with the Democrats this too could be overridden.


[ Top of article | Contents of this issue | Other online articles ]
This archive is hosted by
Political Research Associates on its Public Eye website
The material posted here is not current