Subject:  RUST v. SULLIVAN, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



RUST et al. v. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES

certiorari to the united states court of appeals for the second circuit

No. 89-1391.  Argued October 30, 1990 -- Decided May 23, 1991 {1}

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.

Held:

    1. The regulations are a permissible construction of Title X.  Pp.
615.

    (a) Because MDRV 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 Resources Defense Council, Inc., 467 U. S.
837, 842-844.  Pp. 7-8.

    (b) Title X's broad language plainly allows the abortion counseling,
referral, and advocacy regulations.  Since the Title neither defines MDRV
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 MDRV 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. 8-11.

    (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 MDRV 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 nonTitle X funds.  The statements relied on are highly generalized and
do not directly address the scope of MDRV 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. 11-15.

    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 MDRV 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, 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. Rag land, 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 MDRV 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, 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. ---, ---, that question need not be
resolved here, since the Title X program regulations do not significantly
impinge on the doctor-patient relationship.  Pp. 15-24.

    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. ---, ---.  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, at ---.  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, and Thornburg 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, at 316.
Pp. 24-27.

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.  Stevens, J.,
and O'Connor, J., filed dissenting opinions.
------------------------------------------------------------------------------
1
    Together with No. 89-1392, New York et al. v. Sullivan, Secretary of
Health and Human Services, also on certiorari to the same court.





Subject: 89-1391 & 89-1392 -- OPINION, RUST v. SULLIVAN

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


Nos. 89-1391 and 89-1392


IRVING RUST, etc., et al., PETITIONERS
v.
89-1391
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


NEW YORK, et al., PETITIONERS
v.
89-1392
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


on writs of certiorari to the united states court of appeals for the second
circuit

[May 23, 1991]



    Chief Justice Rehnquist delivered the opinion of the Court.

    These cases concern a facial challenge to Department of Health and
Human Services (HHS) regulations which limit the ability of Title X fund
recipients to engage in abortionrelated 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.

I


A
    In 1970, Congress enacted Title X of the Public Health Service Act
(Act), 84 stat. 1506, as amended, 42 U. S. C. 15 300-300a-41, which
provides federal funding for familyplanning 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."  42 U. S.
C. MDRV 300(a).  Grants and contracts under Title X must "be made in
accordance with such regulations as the Secretary may promulgate."  42 U.
S. C. MDRV 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. MDRV 300a-6.
That restriction was intended to ensure that Title X funds would "be used
only to support preventive family 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 MDRV 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.  MDRV
59.8(a)(2).  Title X 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."  MDRV 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."  MDRV 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."  MDRV 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 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.  MDRV 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
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.
B
    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 MDRV 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 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,
the 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. --- (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
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.

II
    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.

A
    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 MDRV 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, MDRV 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 MDRV 1008 in particular, we are unable
to say that the Secretary's construction of the prohibition in MDRV 1008 to
require a ban on counseling, referral, and advocacy within the Title X
project, is impermissible.
    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 MDSU 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"); New York v.
Sullivan, 889 F. 2d 401, 407 (CA2 1989) (case below) ("Nothing in the
legislative history of Title X detracts" from the Secretary's construction
of MDRV 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}
    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
v. State Farm Mutual Automobile Ins. Co., 463 U. S. 29, 42 (1983), quoting
American Trucking Assns., Inc. v. Atchinson, T. & S. F. R. Co., 387 U. S.
397, 416 (1967); NLRB v. Curtin Matheson Scientific, Inc.,  494 U. S. ---
(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.
B
    We turn next to the "program integrity" requirements embodied at MDRV
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 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
regulations.
    The Secretary defends the separation requirements of MDRV 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 that:

"[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 MDRV 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 to infer such an intent are highly generalized, and
do not directly address the scope of MDRV 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."  MDRV 1002.  This
statement is, on its face, ambiguous as to Congress' intent in enacting
Title X and the prohibition of MDRV 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 MDRV
1008, the statements fall short of evidencing a congressional intent that
would render the Secretary's interpretation of the statute impermissible.
    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 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 MDRV 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 and 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 5.  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 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."  Jin Fuey Moy, supra, at 401.  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, 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.
III
    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., 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
MDRV 1008 is constitutional.  In Maher v. Roe, supra, 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 of public funds."  Id., at 474.  Here the
Government is exercising the authority it possesses under Maher and McRae
to subsidize family planning services which will lead to conception and
child birth, 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, 448 U. S., 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, 432 U. S., 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 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. MDRV 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 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 MDRV 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}
    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. MDRV 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).
    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 non
editorializing 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 MDRV
501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. MDRV 501(c)(3),
an affiliate to conduct its nonlobbying activities using tax-deductible
contribu tions, and at the same time establish, under MDRV 501(c)(4), a
separate affiliate to pursue its lobbying efforts without such
contributions.  Regan, supra, 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 the MDRV 501(c)(3) organization did
not subsidize the MDRV 501(c)(4) organization; otherwise, public funds
might be spent on an activity Congress chose not to subsidize."  Ibid.  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 abortionrelated
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 abortionrelated
activities when they are not acting under the auspices of the Title X
project.  The regulations, which govern solely 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 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, 110 S. Ct. 3115, 3119 (1990); Hague v.
CIO, 307 U. S. 496, 515 (1939)(opinion of Roberts, J.), or have been
"expressly dedicated to speech activity."  Kokinda, supra, 110 S. Ct., at
3119; 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
doctor-patient 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
postconception 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.
 
IV
    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 ---, 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 ---, (citation ommitted).  The Government has
no affirmative duty to "commit any resources to facilitating abortions,"
Webster, 492 U. S., at ---, 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 to operate any public hospitals," Webster, supra, at ---, 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 ---.  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 women considering terminating her
pregnancy through an 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

Affirmed.
 
 
 
 
 
 

------------------------------------------------------------------------------
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).

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. at 95.

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 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," Cardoza-Fonseca, 480 U. S., at 446-447, in resolving the
issue before us.

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 MDRV
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).

5
    Petitioners also contend that the regulations violate the First
Amendment by penalizing speech funded with non-Title X monies.  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, at 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.





Subject: 89-1391 & 89-1392 -- DISSENT, RUST v. SULLIVAN

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-1391 and 89-1392


IRVING RUST, etc., et al., PETITIONERS
v.
89-1391
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


NEW YORK, et al., PETITIONERS
v.
89-1392
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


on writs of certiorari to the united states court of appeals for the second
circuit

[May 23, 1991]



    Justice Blackmun, with whom Justice Marshall joins, with whom Justice
Stevens joins as to Parts II and 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.

I
    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
(1957).  Rather, in its zeal to address the constitutional issues, the
majority sidesteps this established canon of construction with the feeble
excuse that the challenged 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 15, quoting
United States v. Delaware and 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 15, 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).
    A divided panel of the Tenth Circuit found the Regulations to "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."
913 F. 2d, 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 New
York v. Sullivan, 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. MDRV 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 7, and that "the legislative
history is ambiguous" in this respect.  Ante, at 9.  Consequently, the
language of MDRV 1008 easily sustains a constitutionally trouble-free
interpretation. {1}
    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."  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 MDRV
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.

II
    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.

A
    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 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, 468 U. S., at 407 (Rehnquist, J., dissenting).  Cf. Arkansas
Writers' Project, Inc. v. Ragland, 481 U. S. 221, 237 (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. v. Public Service Comm'n of
New York, 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 (1972).
    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. MDRV 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, 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. MDRV 501's discrimination
between veterans' organizations and charitable organizations is not based
on the content of their speech."  Id., 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 well-being 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 MDRV
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.
MDRV 59.8(b)(4).  Both requirements are antithetical to 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."  MDRV 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."  MDRV 59.10(a)
(emphasis added).  The Regulations do not, however, proscribe or even
regulate anti-abortion 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 16.  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 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 non-ideological 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.  MDRV
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}

B
    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 22.
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
Board of Education, 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, 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 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. 513, 526 (1958).


    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 22.  "The regulations," the majority
explains, "do not in any way restrict the activities of those persons
acting as private individuals."  Ibid.  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 familyplanning 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 of
the patient and the ethical responsibilities of the medical profession
demand no less.  "The patient's right of selfdecision 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 MDRV 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
compelling.
    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 that the First Amendment clearly provides for this important
message.

C
    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 Board of
Education v. Barnette, 319 U. S. 624, 642 (1943).

III
    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.
    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., at 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 MDRV 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, 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 protected.
    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 25, 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 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}
    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
physician.
    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 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 25.  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}

IV
    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 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 and 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 today's decision.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    The majority states: "There is no question but that the statutory
prohibition contained in MDRV 1008 is constitutional."  Ante, at 16.  This
statement simply begs the question.  Were the Court to read MDRV 1008 to
prohibit only the actual performance of abortions with Title X funds -- as,
indeed, the Secretary did until February 2, 1988, see 53 Fed. 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.

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, preconceptional
services.

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 24.
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.  Further, to hold that the
doctor-patient relationship is somehow incomplete where a patient lacks the
resources to seek comprehensive healthcare 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).

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.

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 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
plaintiff's interests."  P. Keeton et al., Prosser and Keeton on the Law of
Torts 378 (5th ed. 1984) (footnotes omitted).  This observation seems
equally appropriate to the cases at bar.

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 18-19.
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.





Subject: 89-1391 & 89-1392 -- DISSENT, RUST v. SULLIVAN

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-1391 and 89-1392



IRVING RUST, etc., et al., PETITIONERS
v.
89-1391
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES



NEW YORK, et al., PETITIONERS
v.
89-1392
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


on writs of certiorari to the united states court of appeals for the second
circuit

[May 23, 1991]



    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 years.
    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, MDRV 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 population growth to all
persons desiring such information."  42 U. S. C. MDRV 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."  MDRV
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 provision:

"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 U. S. C.  MDRV 300a-6.


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
responsiblity of setting its machinery in motion' " is entitled to
particular respect.  See Power Reactor Development Co. v. Electrical
Workers, 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 District, 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 MDRV 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 15 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 speech.
    Because I am convinced that the 1970 Act did not authorize the
Secretary to censor the speech of grant recipients or their 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 his opinion.

------------------------------------------------------------------------------




Subject: 89-1391 & 89-1392 -- DISSENT, RUST v. SULLIVAN

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-1391 and 89-1392



IRVING RUST, etc., et al., PETITIONERS
v.
89-1391
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES



NEW YORK, et al., PETITIONERS
v.
89-1392
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


on writs of certiorari to the united states court of appeals for the second
circuit

[May 23, 1991]



    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 long-standing 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 MDRV 1008 of the Public Health Service Act,
84 Stat. 1508, 42 U. S. C. MDRV 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 12.
    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 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 DeBar
tolo, 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., con curring).  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 MDRV 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.


------------------------------------------------------------------------------
