Query string values:


Rust v. Sullivan (1991)

In Depth


Title X of the Public Health Services Act provides grants for family planning services.  Section 1008 of the Act specifies that none of the federal funds appropriated under Title X "shall be used in programs where abortion is a method of family planning."  In 1988, the Secretary of Health and Human Services issued new regulations that, among others things, prohibited Title X family planning projects from engaging in counseling concerning, referrals for and activities advocating abortion as a means of family planning, and requiring 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 went into effect, plaintiffs, Title X grantees and physicians who supervise Title X funds, filed several lawsuits in federal district court against defendant, the Secretary of HHS, alleging that the regulations were not authorized by Title X and were unconstitutional on their face, and seeking declaratory and injunctive relief against their enforcement.  The cases were consolidated for disposition.  The district court upheld the regulations and the court of appeals affirmed.  The Supreme Court thereafter granted the plaintiffs' petition for review.

The Regulations Under Review

Title X, which was enacted in 1970, provides federal funding for family-planning services.  The Act authorizes the Secretary of HHS to "make grants to and enter into contracts with public or nonpublic 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. § 300(a).  Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate."  Id. § 300a-4(a).  Section 1008 of the Act provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning."  Id. § 300a-6.  That restriction was intended to ensure that Title X funds would "be used only to support preventative 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).

The regulations promulgated by the Secretary of Health and Human Services were designed to provide " 'clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a means of family planning."  53 Fed. Reg. 2923-24 (1988).  The regulations clarified, 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 "preconceptional counseling, education, and general reproductive health care," and expressly excluded "pregnancy care (including obstetric or prenatal care)."  42 CFR § 59.2 (1989).  The regulations were intended to "focus the emphasis of the Title X program on its traditional mission:  The provision of preventative 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 placed three conditions on the grant of federal funds for Title X projects:

First, the regulations specified 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).  Title X is limited to preconceptional services.  Accordingly, 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.  Id. § 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 mother and unborn child." Id.  Under the regulations issued by the Secretary of HHS, the list could 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."  Id § 59.8(a)(3).  The Title X project was expressly prohibited from referring a pregnant woman to an abortion provider, even upon her specific request.  One permitted response to such a request was to inform the woman  that "the project does not consider abortion to be an appropriate method of family planning and therefore does not counsel or refer for abortion." Id. § 59.8(b)(5).

Second, the regulations broadly prohibited a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning."  42 CFR § 59.10(a).  Forbidden activities included 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 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 method of family planning as a substantial part of its activities. Id.

Third, the regulations required that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.  42 CFR § 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." Id.  The regulations provided 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.  Id.

The Court's Holding

By a vote of five-to-four, the Supreme Court affirmed the judgment of the court of appeals upholding the challenged regulations.

The Court's Reasoning

Chief Justice Rehnquist wrote the majority opinion for the Court.  In Part II of his opinion, Chief Justice Rehnquist rejected the plaintiffs' argument that the Secretary's regulations were not authorized by Title X. Rust, 500 U.S. at 183-91.  Chief Justice Rehnquist noted that the plain language of § 1008-that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a means of family planning"-was ambiguous and "does not speak directly to the issues of counseling, referral, advocacy, or program identity."  Id. at 184.  Under these circumstances, where the language of a statute is silent or ambiguous, the question for the court is whether the agency's answer is based upon a permissible construction of the statute.  Id. Based upon the broad directives provided by Congress in Title X in general and by § 1008 in particular, the Court was unable to conclude that the Secretary's construction of the prohibition in § 1008 to require a ban on counseling, referral and advocacy within the Title X project was impermissible.  Id.  The Court also determined that the "program integrity" requirements embodied in the Secretary's regulations (§ 59.9), mandating separate facilities, personnel and records were not inconsistent with the plain language of Title X. Id. at 187.  The program integrity requirements "are based on a permissible construction of the statute and are not inconsistent with congressional intent."  Id. at 188.

The Court next turned to plaintiffs' constitutional arguments.  Plaintiffs argued that the regulations violated the First Amendment because they impermissibly discriminated on the basis of viewpoint-prohibiting discussion about abortion but mandating information promoting childbirth.  Rust, 500 U.S. at 192.  The Court rejected this argument.  Chief Justice Rehnquist pointed out that the statute prohibiting the use of Title X funds to pay for abortion (§ 1008) was constitutional.  Id. at 192-93.  The challenged regulations simply implemented the statute "by prohibiting counseling, referral, and the provision of information regarding abortion as a method of family planning," and were "designed to ensure that the limits of the federal program are observed."  Id. at 193.  Plaintiffs' argument could be distilled to the position that "if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights."  Id. at 194.  The Court, however, has repeatedly rejected that proposition.  Id. (citing cases).  Thus, "when the  Government appropriates public funds to establish a program it is entitled to define the limits of that program."  Id. at 194.

The Court also rejected plaintiffs' alternative First Amendment claim that the challenged regulations "condition the receipt of a benefit, in these cases Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling." Rust, 500 U.S. at 196.  This claim was unavailing because "the Government is not denying a benefit to anyone, but is instead simply insisting that public funds be spend for the purposes for which they were authorized." Id.  Moreover, the 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."  Id. The regulations were aimed at Title X projects, not Title X grantees, who remain free "to perform abortions, provide abortion-related services, and engage in abortion advocacy" so long as those activities were conducted "through programs that are separate and independent from the project that receives Title X funds." Id. "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."  Id. at 198.  Nor do the challenged 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 abortion-related 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; bu the limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority.

Id. at 198-99.

Finally, the Court turned to plaintiffs' argument that the regulations violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy.  Chief Justice Rehnquist quickly disposed of this argument on the basis of the Court's decisions upholding statutes restricting the use of public funds or public facilities for the performance of abortions.  Rust, 500 U.S. at 201-03 (citing Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 279 (1980), and Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (for a summary of the constitutional issues decided in Maher, Harris and Webster, please see the summaries for those cases)).  "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."  Id. at 201 (citation and internal quotation marks omitted).

Concluding his opinion for the Court, Chief Justice Rehnquist stated that the Secretary's regulations "are a permissible construction of Title X and do not violate either the First or Fifth Amendments to the Constitution."  Rust, 500 U.S. at 203.

Justice Blackmun, in an opinion in which Justice Marshall concurred in full and in which Justices Stevens and O'Connor concurred in part, dissented.  Justice Blackmun first argued that the Secretary's regulations raised serious constitutional questions which the Court should have avoided by holding that they were not authorized by Title X.  Rust, 500 U.S. at 204-07 (Blackmun, J., dissenting).  He next argued that the regulations, if authorized by Title X, constituted "viewpoint-based suppression of speech" that was imposed as "a condition upon the acceptance of public funds," id. at 207, in violation of the First Amendment rights of the Title X project grantees, physicians and staff.  Id. at 207-15.  Finally, Justice Blackmun argued that the regulations, if authorized by Title X, infringed upon the Fifth Amendment rights of women seeking medical services from Title X grantees.  Id. at 215-19.

Justice Stevens wrote a short dissenting opinion in which he took issue with the Court's interpretation of Title X's prohibition (§ 1008) on the use of funds for abortion.  Rust, 500 U.S. at 220-23 (Stevens, J., dissenting).  In Justice Stevens' view, the prohibition was aimed solely at conduct, not speech.  Accordingly, the Secretary's regulations went far beyond what § 1008 prohibited and were not authorized by statute.  Id. at 221-23.  Justice Stevens also joined those parts of Justice Blackmun's opinion in which he discussed the constitutional issues.

Justice O'Connor also wrote a short dissenting opinion.  Without joining that part of Justice Blackmun's dissent in which he discussed the constitutional issues, Justice O'Connor would have reversed the court of appeals solely on the basis that the Secretary's regulations were not authorized by Title X.  Rust, 500 U.S. at 223-25 (O'Connor, J., dissenting).


Following his inauguration in January 1993, President Clinton rescinded the Title X regulations that had been upheld in Rust v. Sullivan.  The regulations have never been reinstated.

EndRoe.org Copyright © 2018 NCHLA