Today in 1991: The Supreme Court upholds regulations prohibiting federal fund recipients from advocating abortions

May 23, 2014

Today in Legal HistoryIn recent years, the Supreme Court has seemingly taken a particular interest in protecting rights to freedom of speech enshrined by the First Amendment, as exemplified by its 2010 Citizens United v. Federal Election Commission decision and McCutcheon v. Federal Election Commission, decided in April of this year.

Both Citizens United and McCutcheon struck down federal campaign finance limits, invoking the First Amendment’s free speech rights as justification, and overruled 1990 and 2003 Court rulings in the process.

Just over two decades ago, though, the Supreme Court wasn’t quite so expansive in its views on freedom of speech.  For example, in Rust v. Sullivan, decided 23 years ago today, upheld regulations that prohibited organizations receiving special federal funds from “engaging in abortion counseling, referral, and activities advocating abortion,” specifically finding that such regulations did not run afoul of the First Amendment’s free speech protections.

Title X of the 1970 Public Health Service Act provides federal funding for family-planning services provided by public or nonprofit private entities.  Section 1008 of the Act, however, provides that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”

In 1988, Republican-appointed Secretary of Health and Human Services Otis R. Bowen promulgated new regulations that attached three principal conditions on the grant of federal funds for Title X projects: first, 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.” Second, the regulations broadly prohibit a Title X project from engaging in activities that “encourage, promote or advocate abortion as a method of family planning.”  Finally, the regulations require that Title X projects be organized so that they are “physically and financially separate” from prohibited abortion activities.

A group of individuals consisting of Title X grantees and doctors who supervise Title X funds sued the Department of Health and Human Services (HHS) on the grounds that the regulations violated the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers.

The challengers lost at the district court and appeals court levels, and the Supreme Court agreed to review the case.

In a five to four vote, the Court affirmed the appeals court, finding that none of the regulations violated the Constitution.

In regards to the free speech claims, the majority reasoned that the government may choose to fund a program dedicated to advance certain viewpoints to the detriment of others without running afoul of the First Amendment.  Otherwise, the majority said, other programs, such as the National Endowment for Democracy, would be constitutionally suspect because the government didn’t also “fund a program to encourage competing lines of political philosophy such as communism and fascism.”

As to the argument that the regulations violated a woman’s Fifth Amendment right to choose whether to terminate her pregnancy, the Court “reaffirmed the long-recognized principle that ‘the Due Process Clauses generally confer no affirmative right to governmental aid.’”

In spite of the current Court’s newfound appreciation for freedom of speech, it’s unlikely that the result would have been any different if Rust were decided today – largely because the Court conservative majority’s views on abortion.

Whether the Court’s expansive free speech views spread beyond campaign spending remains to be seen, but it does appear unlikely that the holding of Rust will remain undisturbed for the foreseeable future.