Rust v. Sullivan

In 1970, Congress enacted Title X of the Public Health Service Act (the Act), which provided federal funding for family planning services. Section 1008 of the Act prohibited the use of Title X federal funding “for programs where abortion [was] a method of family planning.”

The Regulations to the Act (the Regulations), introduced by the Secretary for Health and Human Services (the Secretary), imposed the following three conditions on the grant of federal funds for Title X projects:

• Projects could 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”;
• Projects could not engage in activities that “encourage, promote or advocate abortion as a method of family planning”; and
• Projects must be organised to be “physically and financially separate” from prohibited abortion activities.

The Petitioners, Title X grantees and physicians, brought a case challenging the constitutional validity of the Act. They alleged that the Regulations exceeded the Secretary’s authority and were arbitrary and capricious. They also alleged that the Regulations infringed constitutionally protected rights, namely the right to free speech, and a woman’s right to choose whether to terminate her pregnancy.

The Court of Appeals affirmed the District Court’s grant of summary judgment, holding that the Regulations were a permissible construction of the statute and consistent with constitutional guarantees. The decision was appealed to the Supreme Court.

The Court held that the Regulations did not infringe a woman’s right to choose whether to terminate her pregnancy. The Court held that the federal government had no constitutional duty to subsidize an activity merely because it was constitutionally protected. In holding so, it cited Maher, 432 U.S. 464 (1977), McRae, 448 U.S. 297 (1980), and Webster, 492 U.S. 490 (1989). The Court stated that a “legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.” It further explained that 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 alternative program which seeks to deal with the problem in another way.”

The Court declared that the financial constraints on an indigent woman’s ability to enjoy the full range of constitutionally protected freedoms were not the product of governmental restrictions, but of her own indigency. It explained:

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, [] and Missouri's refusal to allow public employees to perform abortions in public hospitals [in Webster left] a pregnant woman with the same choices as if the State had chosen not to operate any public hospital, [] 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 Court further held that the Regulations did not infringe the right to free speech guaranteed under the First Amendment. The Petitioners asserted that the Regulations placed conditions on government subsidies that “impermissibly discriminate[ed] based on viewpoint because they prohibit[ed] all discussion about abortion as a lawful option . . . while compelling the clinic or counselor to provide information that promote[d] continuing a pregnancy to term.” However the Court held that the government had not discriminated on the basis of viewpoint in choosing to fund one activity to the exclusion of another. It stated that the government had not attempted to suppress a “dangerous idea," rather it simply “prohibit[ed] a project grantee or its employees from engaging in activities outside of the project's scope.” The Court explained that: “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 alternative goals, would render numerous Government programs constitutionally suspect.”

It added that the Regulations did not impinge on the doctor-patient relationship because: the doctor was not required to represent any opinion as his own that he did not in fact hold; the Title X program was not sufficiently all encompassing “so as to justify an expectation on the part of the patient of comprehensive medical advice”; and the doctor remained free to make clear to the patient that advice regarding abortion was beyond the scope of the program.

The Court held that the Regulations restricting abortion counselling, referral and advocacy were valid under Title X. The Court declared that the Regulations could permissibly be interpreted to include a restriction on abortion counselling, referral and advocacy, noting that the broad language of the Act allowed the Secretary’s construction of the statute. It explained that the plain language and legislative history of Section 1008 were ambiguous as to the intent of Congress, and that the Secretary’s construction should be deferred to on the basis that it was justified by a “reasoned analysis.” The Secretary’s analysis involved a determination that the new Regulations were better aligned with the original intent of the statute, were “justified by client experience under the prior policy,” and were “supported by a shift in attitude against the elimination of unborn children by abortion."

The Court also held that the Regulations mandating separate facilities for abortion activities were valid under Title X. The Court stated that the Secretary had based the separation requirement on Congress’ intent “that abortion not be a part of a Title X funded program.” It conceded that Congressional intent was ambiguous with respect to the Regulations, but that its intent was quite clear in this instance.

The Petitioners contended that the separation requirement frustrated the clearly expressed intent of Congress that Title X programs be an integral part of “a broader, comprehensive, health care system.” The court dismissed this view, stating that the intent of the statute was to “place a duty on state entities seeking federal funds,” and that it did not speak to an overall perspective on family planning services.

“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 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 the project's scope.” 500 U.S., p. 193-94.

“Abortion counseling as a ‘method of family planning’ is prohibited, and it does not seem that a medically necessitated abortion . . . would be the equivalent of its use as a ‘method of family planning.’ . . . 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.’ [] Section 59.5(b)(1) also requires Title X projects to provide ‘necessary referral to other medical facilities when medically indicated.’” 500 U.S., p. 195.

“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 . . . 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.” 500 U.S., p. 196.

“By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has . . . not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc . . .” 500 U.S., p. 198.

“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, [] and Missouri's refusal to allow public employees to perform abortions in public hospitals [in Webster left] a pregnant woman with the same choices as if the State had chosen not to operate any public hospital, [] 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.”  500 U.S., p. 201.