Title X of the Public Health Service Act authorizes the U.S. Department of Health and Human Services (HHS) to fund a range of family planning services but prohibits the use of Title X funds in programs where abortion is a method of family planning. In 1988, HHS promulgated new regulations prohibiting projects receiving Title X funding from referring pregnant women to abortion providers, even upon specific request. The regulations also prohibit these entities from engaging in activities advocating for the availability of abortion through lobbying, distributing materials, or participating in litigation.
In Rust v. Sullivan, a majority of the U.S. Supreme Court rejected claims that these regulations violated the First Amendment free speech rights of Title X fund recipients, their staffs, and their patients by conditioning the receipt of government funds on the expression of specific viewpoints. The Court also held that the regulations did not interfere with the Fifth Amendment substantive due process rights of Title X clients to choose to terminate a pregnancy.
In raising these First and Fifth Amendment claims, the challengers sought to invoke the principle that the government may not condition a benefit on the requirement that the recipient relinquish a constitutional right, nor penalize a person for exercising a constitutional right (Regan v. Taxation with Representation of Washington ). This unconstitutional conditions doctrine has not been consistently applied by the Supreme Court. The Court has sought to draw a line between content-based regulation of speech, which the Court has held unconstitutional (Legal Services Corporation v. Velazquez ), and cases in which the government has refused to subsidize the exercise of a constitutional right to engage in a constitutionally protected activity, such as speech or obtaining an abortion (Harris v. McRae ). Writing for the Rust majority, Chief Justice Rehnquist stated that through the Title X regulatory prohibitions on referrals for abortion, the government was not discriminating on the basis of viewpoint, but choosing to fund one activity and not others. The Court has subsequently described Rust as involving the government using private speakers to transmit specific information pertaining to a government program. Under such circumstances, the government may say what it wants (Rosenberger v. Rector of the University of Virginia ). In upholding these restraints on speech, Rust is inconsistent with traditional notions of free exchange of information between patients and health care professionals and contributes to the confused state of the unconstitutional conditions doctrine.
If one views the funding conditions at issue in Rust as the government funding some services and not others, the Court’s decision seems consistent with the cases in which the Supreme Court consistently has concluded that federal or state governments may constitutionally implement a value judgment of discouraging abortion by funding childbirth-related health care services while declining to fund abortion services. In these cases, the Supreme Court has stated that a government decision not to subsidize the exercise of a fundamental right does not infringe the right (Harris v. McRae , Maher v. Roe ).
RENE´ E M. LANDERS
References and Further Reading
Cases and Statutes Cited
See also Abortion; Birth Control; Chemerinsky, Erwin; Content-Based Regulation of Speech; Due Process of Law (V and XIV); Government Funding of Speech; Government Speech; Harris v. McRae, 448 U.S. 297 (1980); Privacy; Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Unconstitutional Conditions