RUST v. SULLIVAN 500 U.S. 173 (1991)

Congress, by means of Title X of the Public Health Service Act, provides for federal funding for family planning services. In 1988, the U.S. Department of Health and Human Services (HHS) issued new regulations that required subsidized clinics to refrain from advising their patients with respect to abortion. Private clinics and doctors employed at these clinics brought actions claiming that this limitation to concededly important speech violated the first amendment. To resolve a split among the federal appeals courts, the Supreme Court granted certiorari. Ina5–4 decision, the Court held that the "no abortion counseling" condition did not violate the freedom of speech.

The no-abortion-speech limitation was first challenged on grounds of statutory interpretation. The plaintiffs, on the basis of considerable authority, argued that given the importance of the First Amendment an administrative agency, such as HHS, could not be vested with a power to limit speech except by clear and explicit authorization by Congress and that no such "clear statement" had been made for HHS. A majority of the Court, however, applied a different rule of construction, that of a deference to an agency's own interpretation of its enabling act. While agreeing that the necessary statutory authorization was "ambiguous," the majority opinion in Rust v. Sullivan, authored by Chief Justice william h. rehnquist, nonetheless concluded that HHS's interpretation (that it had been delegated the power) was a "plausible" and thus "permissible" construction of the act.

The next issue was whether the statute so construed—as authorizing HHS to condition its subsidies on the recipients refraining from speech about abortion—was constitutional. The majority held that it was, for at least two reasons. One reason centered on choice. The clinics were not forced to refrain from speaking; they might simply refuse the federal funds and then speak of abortion as they wished. Therefore, the right of the clinics to speak had not been taken; rather, they had of their own free choice given it up.

Otherwise, the Court emphasized the restricted scope of the no-abortion-counseling provision. The provision applied only to the clinic (and to that part of it financed by Title X funds); it did not apply to individuals in their speech outside the Title X project. As said by the majority, "[clinic] employees remain free to pursue abortion-related activities when they are not acting under the auspices of the Title X project." Yet, for a number of women, the subsidized, low-cost Title X projects were likely the only viable and accessible forum for counseling with respect to their pregnancy. Therefore, any availability of clinic doctors outside these clinics was, to these people, not an effective source of information about abortion.

William T. Mayton
(2000)