Rust v. Sullivan

Rust v. Sullivan
Supreme Court of the United States
Argued October 30, 1990 Decided May 23, 1991
Full case name	Irving Rust, et al., Petitioners v. Louis W. Sullivan, Secretary of Health and Human Services; New York, et al., Petitioners v. Louis W. Sullivan, Secretary of Health and Human Services
Citations	500 U.S. 173 (more) 111 S. Ct. 1759; 114 L. Ed. 2d 233; 1991 U.S. LEXIS 2908; 59 U.S.L.W. 4451; 91 Cal. Daily Op. Service 3713; 91 Daily Journal DAR 6006
Case history
Prior	Summary judgment for defendant, 690 F. Supp. 1261 (S.D.N.Y. 1988); affirmed, 889 F.2d 401 (2d Cir. 1989).
Holding
Health and Human Services regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion were a permissible construction of Title X of the Act, nor did they violate the First or Fifth Amendments.
Court membership
Chief Justice William Rehnquist Associate Justices Byron White · Thurgood Marshall Harry Blackmun · John P. Stevens Sandra Day O'Connor · Antonin Scalia Anthony Kennedy · David Souter
Case opinions
Majority	Rehnquist, joined by White, Scalia, Kennedy, Souter
Dissent	Blackmun, joined by Marshall; Stevens (parts II, III); O'Connor (part I)
Dissent	Stevens
Dissent	O'Connor
Laws applied
U.S. Const. amends. I, V; Public Health Service Act, 42 U.S.C. §§ 300–300a-8

Rust v. Sullivan, 500 U.S. 173 (1991), was a case in the United States Supreme Court that upheld Department of Health and Human Services regulations prohibiting employees in federally funded family-planning facilities from counseling a patient on abortion.^[1] The department had removed all family planning programs that involving abortions. Physicians and clinics challenged this decision within the Supreme Court, arguing that the First Amendment was violated due to the implementation of this new policy. The Supreme Court, by a 5–4 verdict, allowed the regulation to go into effect, holding that the regulation was a reasonable interpretation of the Public Health Service Act, and that the First Amendment is not violated when the government merely chooses to "fund one activity to the exclusion of another."^[1]

Background

Facts of dispute

When Congress passed Title X of the Public Health Service Act in 1970 it prohibited the use of federal funds "in programs where abortion is a method of family planning." The regulation implementing the law interpreted this to mean that Title X clinics would not provide abortions themselves.^[2]

For around 20 years Title X clinics were permitted to provide referrals and abortion counseling to pregnant patients until the Secretary of Health and Human Services proposed new regulations in 1987 instructing physicians to tell patients requesting information about abortion that the clinic did not consider abortion "an acceptable method of family planning".^[3][4]

Under the new regulations publicly-funded clinics were not allowed to offer any abortion counseling and could not make referrals to licensed abortion providers. The new regulations also required that Title X clinics be "physically and financially separate" from facilities that provide abortion counseling.^[5] Around 4,000 Title X clinics serving 4.3 million mostly low-income patients were effected.^[6]

Procedural history

These regulations were challenged by the recipients of Title X funds on the grounds that they exceeded the Congressional intent of the statute and violated the free speech rights of doctors counseling patients.^[7]

The family planning clinics requested declaratory judgements in federal courts. before the rules went into effect.^[8]

The petitioner Irving Rust was the directory of a family planning clinic. Reagan's term had ended while the first federal appeals were still being decided. President George H. W. Bush decided to keep the new regulations. His administration's Health and Human Services Secretary Louis Wade Sullivan became was the respondent in the case.^[9]

Circuit courts were divided. Two courts of appeal ruled the regulations were unconstitutional. The Court of Appeals for the Second Circuit upheld the regulations. The Second Circuit decision was appealed to the Supreme Court.^[10]

Supreme Court

Justice David Souter had just recently been appointed to the Court in 1991 when Justice William Brennan left the court. Rust v. Sullivan was his first abortion case. He voted with the majority to uphold the new regulations in a 5-4 decision. Justice Sandra Day O'Connor dissented.^[11]

Briefs

Petitioners argued that the government could not impose unconstitutional conditions on the receipt of public benefits: "The government cannot exact adherence to any orthodoxy through the imposition of viewpoint-based conditions on its largess".^[12]

The government's position was that the "the government is not obligated to provide the means to exercise" the abortion right.^[13]

Opinion of the Court

Chief Justice Rehnquist wrote the majority opinion, which was joined by Justices White, Scalia, Kennedy, and Souter. The court ruled that "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."^[14] The court found that "Title X of the Public Health Service Act of 1970 may be read to bar not only abortions but also abortion counseling." Rehnquist wrote for the majority in finding that the regulations were based upon a permissible interpretation of the statute under the Chevron test, that they did not violate First Amendment free speech rights, and that they did not violate the right of women to terminate a pregnancy as established in Roe v. Wade under the Fifth Amendment substantive due process doctrine.

In the dissenting opinion, Justice Blackmun said "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. 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."^[15] Justices Marshall, Stevens, and O’Connor joined Blackmun's dissenting opinion. Stevens wrote separately that "not a word in the statute...authorizes the (HHS) Secretary to impose any restrictions on the dissemination of truthful information or professional advice by grant recipients."

Reasoning

Section 1008 of the Public Health Service Act specified 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 requiring, inter alia, that recipients of the federal funding (1) not engage in any counseling regarding abortion as a method for family planning; and (2) maintain an objective integrity and independence from abortion activities by the use of separate facilities, personnel, and accounting records.

The Court held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments.

(1) The regulations were a permissible construction of Title X. The regulations did 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. Section 1008's abortion prohibition was constitutional because the government might make a value judgment favoring childbirth over abortion and implement that judgment by using subsidies of public funds. Maher v. Roe, 432 U.S. 464, 474 (1977). The use of public subsidies by the government was not rendered “discrimination” simply by the government's favoring one viewpoint over another.

(2) The Secretary's construction of Title X must be accorded substantial deference by this Court because: (a) HHS was the agency charged with administering Title X, and (b) the Court could not look to § 1008 of Title X for interpretation. Section 1008 was ambiguous because it did not speak directly to abortion issues regarding counseling, and did not provide any guidance as to what was meant by “program integrity”. Moreover, the title neither defined § 1008's "method of family planning" phrase, nor enumerated what types of medical and counseling services were entitled to funding. The Secretary's construction of § 1008 would not be disturbed since (a) it was a plausible construction of the statute's plain language, (b) it did not conflict with Congress' expressed intent, and (c) the legislative history either was ambiguous as to Congress' intent on those issues or supported the Secretary's interpretation. The legislative history demonstrated that Congress had intended that Title X funds be kept separate and distinct from abortion-related activities. An agency must be given ample latitude to adapt its rules to changing circumstances. Thus, an interpretation that was different from previous interpretations deserved deference if it complimented the changes in circumstances. The Secretary's change of interpretation was amply supported by a "reasoned analysis" as the new regulations were more in keeping with Title X's original intent, which was supported by the testimony of client experience under the prior policy.

(3) The Doctors' argument, that if the Government chooses to subsidize one viewpoint over a subject (here, abortion), then it must also balance that viewpoint by subsidizing its opposite, had clearly been rejected by the Court. Comparing, e.g., Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983). 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. F.C.C. v. League of Women Voters of California, 468 U.S. 364, 400 (1984); Regan, 461 U.S. at 546, distinguished.

(4) 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 (comparing, e.g., United States v. Kokinda, 497 U.S. 720, 726 (1990)), that question need not be resolved, since the Title X program's regulations did not significantly impinge on the doctor-patient relationship.

(5) The regulations did not violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. The government had no constitutional duty to subsidize an activity merely because it was constitutionally protected, and might validly choose to allocate public funds for medical services relating to childbirth but not to abortion. Webster v. Reproductive Health Services, 492 U.S. 490, 510 (1989). Such allocation placed no governmental obstacle in the path of a woman wishing to terminate her pregnancy, and left her with the same choices as if the Government had chosen not to fund family planning services at all. See Harris v. McRae (1980). Nor did the regulations place restrictions on the patient/doctor dialogue which violated a woman's right to make an informed and voluntary choice under City of Akron v. Akron Center for Reproductive Health (1983) and Thornburgh v. American College of Obstetricians and Gynecologists (1986). A doctor's ability to provide abortion-related information and a woman's right to receive such information remained unfettered outside the context of the Title X project.

Aftermath

Congress quickly passed an amendment to Title X that said publicly-funded clinics should be permitted to make referrals to licensed abortion providers when requested by a pregnant patient. President Bush did not delay in vetoing this legislation. The House narrowly failed to override the veto, so the regulations remained in effect.^[16]

The Supreme Court had signaled their disapproval of any application of the regulations that would prevent a doctor from providing a patient with a referral for a medically needed abortion. Taking this into account, President Bush amended the regulations to allow a health exception to the family planning policy so that physicians could refer patients for abortions when it would prevent serious medical harm to the patient. However, the Bush administration did not follow the proper administrative procedures required for issuing new regulations. As a result, Bush's changes were declared void by the Court of Appeals for the D.C. Circuit.^[17]

It was an election year and the Bush White House did not have time to put any new policy in place; Bill Clinton was elected in the 1992 Presidential Election. Eliminating the Title X "gag rule" had been a campaign promise and the regulations were promptly reversed as one of the first official acts of the new administration in January 1993.^[18] Around 75,000 people protested in Washington D.C. on the day the regulations were reversed. People from all over the United States carried signs and wore stickers with non-partisan statements like "In Your Heart You Know It's Wrong" and "The Natural Choice is Life". ^[19]

See also

• List of United States Supreme Court cases, volume 500
• List of United States Supreme Court cases
• Lists of United States Supreme Court cases by volume
• List of United States Supreme Court cases by the Rehnquist Court

Further reading

• Fitzpatrick, Michael (1992). "Rust Corrodes: The First Amendment Implications of Rust v. Sullivan". Stanford Law Review. 45 (1). Stanford Law Review, Vol. 45, No. 1: 185–227. doi:10.2307/1228987. JSTOR 1228987. PMID 10183813.
• Kagan, Elena (1992). "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion". The Supreme Court Review. 1992. The Supreme Court Review, Vol. 1992: 29–77. doi:10.1086/scr.1992.3109667. JSTOR 3109667. S2CID 140422540.
• Leedes, G. C. (1991). "The discourse ethics alternative to Rust v. Sullivan". University of Richmond Law Review. 26 (1): 87–143. PMID 11659547.

References

External links

• Text of Rust v. Sullivan, 500 U.S. 173 (1991) is available from: Cornell  Justia  Library of Congress