Gag Rule

In an effort to provide low-income women in the United States with greater access to family planning advice from skilled health care and social service professionals, Congress passed—and President Richard Nixon signed into law—the Public Health Service Act of 1970. To help assist in its implementation, Title X of the act authorized the secretary of Health and Human Services 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’’ (Rust v. Sullivan, 500 U.S. 173, 1991). However, Title X prohibited the secretary from making grants that fund ‘‘programs where abortion is a method of family planning’’ and enabled him to enact rules and regulations to ensure that this and other aspects of the provision were followed by Title X grantees.

In 1988, acting pursuant to Title X’s delegation of authority, the secretary of Health and Human Services published detailed regulations (subsequently labeled the ‘‘gag order’’ by their detractors) designed to eliminate the possibility of federal funds being used by Title X grantees to engage in, or counsel clients about the use of, abortion procedures as a form of family planning. According to the regulations, while working within the confines of a federally subsidized project, the employees of a Title X service provider were prohibited from counseling clients or disseminating material to clients about abortion; lobbying or litigating for policies that would make abortion more widely available; employing speakers to discuss the benefits of abortion; paying dues to organizations that promote abortion; or referring pregnant women to abortion providers. The regulations proved to be quite controversial, and in Rust v. Sullivan (1991), the U.S. Supreme Court was faced with a challenge to their legality.

Chief Justice William Rehnquist, writing in Rust, noted that the 1988 HHS regulations ‘‘reverse[d] a long-standing agency policy that permitted nondirective counseling and referral for abortion, and thus represented a sharp break from the department’s prior construction of the statute.’’ The Rust Court explained how the regulations emphasized Title X’s focus on preconception aspects of family planning (as opposed to postconception issues like prenatal care, childbirth, and pregnancy). Title X grantees were not supposed to provide pregnant women directly with health care services or advice. Instead, the regulations held that all ‘‘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’’’ (Rust).

Moreover, in keeping with its nonpromotion of abortion philosophy, the new HHS regulatory scheme held that the list of service providers could not be biased in favor of providers that perform or advocate abortion as a family planning option and that a pregnant woman could not be referred to an abortion provider—even if that was her specific request. Finally, the regulations required that grantees be able to demonstrate a clear separation between their projects subsidized by federal monies and their nonsubsidized projects involving abortion. A provider could attempt to comply with this requirement by using separate budget and accounting systems, different personnel, and distinct physical facilities and equipment for its abortion-related and non-abortion-related projects.

The Rust challengers—a group of doctors suing on behalf of themselves and their patients—argued that the secretary’s regulations violated the congressional intent behind Title X. In particular, they argued that Congress’s goal in writing Title X’s ban on projects using abortion as a ‘‘method of family planning’’ was to prohibit Title X grantees from using federal money to perform—as opposed to counsel clients about— abortions. However, the Supreme Court rejected this contention and instead affirmed the lower court’s conclusion that judges must give significant deference to a federal agency that has been delegated significant regulatory authority, and that the agency’s new rules were based on a reasonable and legitimate interpretation of the statute and its legislative intent. The fact that the new regulations constituted a ‘‘sharp break’’ from past interpretations of the statute did not trouble the Court; the majority explained that expert administrators need to be provided ample leeway to modify and improve agency rules.

The challengers also believed that the new HHS regulations violated several aspects of the U.S. Constitution. First, they asserted that the regulations impinged to an unacceptable degree on a woman’s constitutional right to obtain an abortion. The Court rejected this idea by drawing on those precedents in which it had upheld state laws that prohibited the use of government money, employees, or facilities in the performance of abortions (see Maher v. Roe, 432 U.S. 464, 1977; Harris v. McCrae, 448 U.S. 297, 1980; Webster v. Reproductive Health Services, 492 U.S. 490, 1989). In those cases the Court held that the laws being challenged did not erect barriers to a pregnant woman’s right to obtain an abortion that did not exist prior to their enactment. For example, a poor woman who could not afford an abortion prior to the enactment of these laws would be just as likely not to be able to afford one afterward. The Rust majority held that the new HHS regulations were analogous by arguing that 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.’’

Since the new regulations prohibited doctors from providing all pertinent information to their patients, the Rust challengers argued that they constituted an unwarranted governmental intrusion into the doctor– patient relationship. This, in turn, infringed upon the fundamental constitutional right to make personal medical decisions free from governmental interference— a right that is enhanced if the medical decision pertains to a procedure that, like abortion, has been categorized as a fundamental constitutional right. For legal authority the challengers cited Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

In those decisions the Court struck down state regulations that required health care personnel to inform each patient who considered having an abortion about the potential health risks of abortion vis-a`- vis childbirth; the nature of the abortion procedure being contemplated; the status and potential viability of the patient’s fetus; the presence of state assistance for prenatal, childbirth, and neonatal care; and the availability of printed materials discussing the gestation of fetuses. The states argued in both cases that they were merely attempting to provide women with all pertinent information necessary for them to make rational decisions that would best fit their individual circumstances. Nevertheless, the Court held that the laws unjustifiably interfered with the constitutional right of women to obtain abortions.

The Rust majority, however, did not believe that the Secretary’s regulations posed the same problems as the regulations involved in Akron and Thornburgh. Specifically, the majority drew attention to the fact that the Akron and Thornburgh regulations applied to all women and their respective health care providers within each state’s respective jurisdiction. In contrast, the HHS regulations only apply to women seeking family planning advice from an agency operating pursuant to a Title X grant. Women are free to seek alternative family planning advice—free from Title X constraints—from providers who are not in any way associated with Title X or who have erected a firewall between their Title X projects and their other family planning programs.

As the majority in Rust explained, 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.’’ The petitioners countered by arguing that the regulations violate the constitutional rights of poor women since they will often find it impossible to afford family planning assistance outside of clinics subsidized with Title X funds. The majority rejected this idea by again emphasizing that poor women are ‘‘in no worse position than if Congress had never enacted Title X.’’

Another argument proffered by the Rust petitioners was that the secretary’s regulations violated free-speech principles of the First Amendment. As the Rust majority explained:

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.’’

The majority rejected this claim by explaining that employees of family planning clinics that accept Title X funds do not forfeit their ability to engage in discussion of abortion in contexts outside of Title X projects. Moreover, it explained that clinics are not coerced by the government to seek and accept Title X funds; if a clinic’s staff does not want to be constrained in how it counsels patients, then it should not apply for a Title X grant.

Drawing again on its decisions in Maher (Maher v. Roe, 432 U.S. 464, 1977) and Harris, the majority concluded that the government’s legitimate interest in protecting fetal life justified family planning policies that did not promote abortion. The First Amendment does not require that the government act neutrally by giving all family planning methods equal recognition. Such a principle would be hard to contain, the Court argued, because all government laws are viewpoint biased in the sense that they reflect the government’s decision to select and promote a single policy option (and that option’s corresponding views about proper behavior) from what is typically an infinite menu of alternatives. The government would be forced to give up passing laws and thereby close its doors if the Court were to enforce such a broad principle.

One can reasonably argue that employees of family planning agencies who are participating in the implementation of a legitimate government program should not have the ability to articulate views that directly conflict with (and potentially undermine) that program’s policy goals. Just as the government can limit what its employees are allowed to say in their capacity as government employees (see Connick v. Myers, 461 U.S. 138, 1983), it should also be allowed to regulate what a family planning agency’s employees can say while they are working within the confines of a Title X project. Although the majority did not expressly employ this reasoning, it did imply that personnel working on Title X projects take on the status of ‘‘quasigovernment’’ employees, with many of the potential speech constraints that that status sanctions.

In 1992, President George H. W. Bush lifted the counseling and referral bans on doctors working in the context of Title X programs—the bans were left in effect for other employees working for Title X providers (see National Family Planning and Reproductive Health Association, Inc. v. Sullivan, 1992). However, on January 22, 1993, the newly inaugurated President Clinton suspended the regulations and asked the secretary of Health and Human Services to start the rulemaking process in order to have them permanently replaced. This was eventually accomplished on July, 3, 2000, when the Department of Health and Human Services published new regulations nearly identical to the pre-1988 regulations. These regulations granted Title X service providers the authority to offer their clients nondirective counseling and referral advice about all aspects of family planning— including abortion. The regulations continue to remain in effect as of the time of this writing.

MARK KEMPER

Cases and Statutes Cited

  • Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)
  • Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961)
  • Harris v. McCrae, 448 U.S. 297 (1980)
  • Maher v. Roe, 432 U.S. 464 (1977)
  • National Family Planning and Reproductive Health Association, Inc. v. Sullivan Rust v. Sullivan, 500 U.S. 173 (1991)
  • Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986)
  • Webster v. Reproductive Health Services, 492 U.S. 490 (1989)

See also Sunday Closing Cases and Laws

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