U.S. Supreme Court

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

500 U.S. 173

RUST ET AL. v. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Nos. 89-1391

Argued October 30, 1990

Decided May 23, 1991

Section 1008 of the Public Health Service Act specifies 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 that, inter alia, prohibit Title X projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require 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 could be applied, petitioners - Title X grantees and doctors who supervise Title X funds - filed suits, which were consolidated, challenging the regulations' facial validity and seeking declaratory and injunctive relief to prevent their implementation. In affirming the District Court's grant of summary judgment to the Secretary, the Court of Appeals held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments.

Held:

1. The regulations are a permissible construction of Title X. Pp. 183-191.

(a) Because 1008 is ambiguous, in that it does not speak directly to the issues of abortion counseling, referral, and advocacy, or to "program integrity," the Secretary's construction must be accorded substantial deference as the interpretation of the agency charged with administering the statute, and may not be disturbed as an abuse of discretion if it reflects a plausible construction of the statute's plain language and does not otherwise conflict with Congress' expressed intent. Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc.,  467 U.S. 837, 842 -844. P. 184.

(b) Title X's broad language plainly allows the abortion counseling, referral, and advocacy regulations. Since the Title neither defines

1008's "method of family planning" phrase nor enumerates what types of medical and counseling services are entitled to funding, it cannot be said that the Secretary's construction of the 1008 prohibition to require a ban on such activities within Title X projects is impermissible. Moreover, since the legislative history is ambiguous as to Congress' intent on these issues, this Court will defer to the Secretary's expertise. Petitioners' contention, that the regulations are entitled to little or no deference because they reverse the Secretary's longstanding policy permitting nondirective counseling and referral for abortion, is rejected. Because an agency must be given ample latitude to adapt its rules to changing circumstances, a revised interpretation may deserve deference. The Secretary's change of interpretation is amply supported by a "reasoned analysis" indicating that the new regulations are more in keeping with the statute's original intent, are justified by client experience under the prior policy, and accord with a shift in attitude against the "elimination of unborn children by abortion." Pp. 184-187.

(c) The regulations' "program integrity" requirements are not inconsistent with Title X's plain language. The Secretary's view, that the requirements are necessary to ensure that Title X grantees apply federal funds only to authorized purposes and avoid creating the appearance of governmental support for abortion-related activities, is not unreasonable in light of 1008's express prohibitory language and is entitled to deference. Petitioners' contention is unpersuasive that the requirements frustrate Congress' intent, clearly expressed in the Act and the legislative history, that Title X programs be an integral part of a broader, comprehensive, health care system that envisions the efficient use of non-Title X funds. The statements relied on are highly generalized and do not directly address the scope of 1008 and, therefore, cannot form the basis for enjoining the regulations. Indeed, the legislative history demonstrates that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. Moreover, there is no need to invalidate the regulations in order to save the statute from unconstitutionality, since petitioners' constitutional arguments do not carry the day. Pp. 187-191.

2. The regulations do 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. There is no question but that 1008's prohibition is constitutional, since the Government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds. Maher v. Roe,  432 U.S. 464, 474 . In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another. Similarly,

in implementing the statutory prohibition by forbidding counseling, referral, and the provision of information regarding abortion as a method of family planning, the regulations simply ensure that appropriated funds are not used for activities, including speech, that are outside the federal program's scope. Arkansas Writers' Project, Inc. v. Ragland,  481 U.S. 221 , distinguished. Petitioners' view that, if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights, has been soundly rejected. See, e.g., Regan v. Taxation with Representation of Wash.,  461 U.S. 540 . On their face, the regulations cannot be read, as petitioners contend, to bar abortion referral or counseling where a woman's life is placed in imminent peril by her pregnancy, since it does not seem that such counseling could be considered a "method of family planning" under 1008, and since provisions of the regulations themselves contemplate that a Title X project could engage in otherwise prohibited abortion-related activities in such circumstances. Nor can the regulations' restrictions on the subsidization of abortion-related speech be held to unconstitutionally condition the receipt of a benefit, Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. 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. FCC v. League of Women Voters of Cal.,  468 U.S. 364, 400 ; Regan, supra, 461 U.S., at 546, distinguished. 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, cf., e.g., United States v. Kokinda,  497 U.S. 720, 726 , that question need not be resolved here, since the Title X program regulations do not significantly impinge on the doctor-patient relationship. Pp. 192-200.

3. The regulations do not violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected, and may 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 . That allocation places no governmental obstacle in the path of a woman wishing to terminate her pregnancy, and leaves her with the same choices as if the Government had chosen not to fund family planning services at all. See, e.g., Harris v. McRae,  448 U.S. 297, 315 , 317; Webster, supra, 509. Nor do the regulations place restrictions on the patient-doctor dialogue which violate a woman's right to make an informed and voluntary choice under Akron v. Akron Center for Reproductive Health, Inc.,  462 U.S. 416 ,

and Thornburgh v. American College of Obstetricians and Gynecologists,  476 U.S. 747 . Unlike the laws invalidated in those cases, which required all doctors to provide all pregnant patients contemplating abortion with specific antiabortion information, here, a doctor's ability to provide, and a woman's right to receive, abortion-related information remains unfettered outside the context of the Title X project. The fact that most Title X clients may be effectively precluded by indigency from seeing a health care provider for abortion-related services does not affect the outcome here, since the financial constraints on such a woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions, but of her indigency. McRae, supra, 448 U.S., at 316. Pp. 201-203.

 889 F.2d 401, affirmed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, KENNEDY, SCALIA, and SOUTER, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J., joined; in Part I of which O'CONNOR, J., joined; and in Parts II and III of which STEVENS, J., joined, post, p. 203. STEVENS, J., post, p. 220, and O'CONNOR, J., filed dissenting opinions, post, p. 223. [500 U.S. 177]

Laurence H. Tribe argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 89-1391 were Kathleen M. Sullivan, Rachael N. Pine, Janet Benshoof, Lynn Paltrow, Kathryn Kolbert, Steven R. Shapiro, Norman Siegel, Arthur Eisenberg, Roger K. Evans, Laurie R. Rockett, and Peter J. Rubin. Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, Suzanne M. Lynn and Sanford M. Cohen, Assistant Attorneys General, Victor A. Kovner, Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and Hillary Weisman filed briefs for petitioners in No. 89-1392.

Solicitor General Starr argued the cause and filed a brief for respondent in both cases. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Jeffrey P. Minear, Anthony J. Steinmeyer, Lowell V. Sturgill, Jr., and Joel Mangel.Fn

Fn

Briefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by David D. Cole, James M. Shannon, Attorney General of Massachusetts, and Ruth A. Bourquin, Assistant Attorney General; for Anthony J. Celebrezze, Jr., Attorney General of Ohio,

et al. by Mr. Celebrezze, pro se, Suzanne E. Mohr and Jack W. Decker, Assistant Attorneys General, and Rita S. Eppler, Douglas B. Baily, Attorney General of Alaska, John K. Van de Kamp, Attorney General of California, Clarine Nardi Riddle, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Herbert O. Reid, Sr., Corporation Counsel for the District of Columbia, James E. Tierney, Attorney General of Maine, Hubert H. Humphrey III, Attorney General of Minnesota, Robert M. Spire, Attorney General of Nebraska, Robert J. Del Tufo, Attorney General of New Jersey, Dave Frohnmayer, Attorney General of Oregon, Jim Mattox, Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of Vermont, and Mary Sue Terry, Attorney General of Virginia; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Ann E. Allen, Kirk B. Johnson, Laurie R. Rockett, Joel I. Klein, and Jack R. Bierig; for the American Library Association et al. by Bruce J. Ennis, Jr., and David W. Ogden; for the American Public Health Association et al. by Larry M. Lavinsky, Charles S. Sims, Michele M. Ovesey, and Nadine Taub; for the Association of the Bar of the City of New York by Conrad K. Harper, Janice Goodman, and Diane S. Wilner; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers and Charles Stephen Ralston; for the National Association of Women Lawyers et al. by James F. Fitzpatrick, L. Hope O'Keeffe, and Walter Dellinger; for the Planned Parenthood Federation of America et al. by Dara Klassel, Eve W. Paul, and Barbara E. Otten; for Twenty-Two Biomedical Ethicists by Michael E. Fine and Douglas W. Smith; and for Representative Patricia Schroeder et al. by David M. Becker.

Briefs of amici curiae urging affirmance were filed for the American Academy of Medical Ethics by Carolyn B. Kuhl; for the Association of American Physicians and Surgeons by Clarke D. Forsythe and Kent Masterson Brown; for Feminists for Life of America et al. by Edward R. Grant; for the Knights of Columbus by Carl A. Anderson; for the Rutherford Institute et al. by Wm. Charles Bundren, John W. Whitehead, A. Eric Johnston, David E. Morris, Stephen E. Hurst, Joseph P. Secola, Thomas S. Neuberger, J. Brian Heller, Thomas W. Strahan, William Bonner, Larry Crain, and James Knicely; for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris; and for Senator Gordon J. Humphrey et al. by James Bopp, Jr., and Richard E. Coleson.

Briefs of amici curiae were filed for the American Life League, Inc., et al. by Robert L. Sassone; for the Catholics United for Life et al. by Thomas

Patrick Monaghan, Jay Alan Sekulow, Walter M. Weber, Thomas A. Glessner, Charles E. Rice, and Michael J. Laird; for the NOW Legal Defense and Education Fund et al. by John H. Hall, Sarah E. Burns, and Alison Wetherfield; and for the National Right to Life Committee Inc. et al. by James Bopp, Jr., and Richard E. Coleson.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

These cases concern a facial challenge to Department of Health and Human Services (HHS) regulations which limit

the ability of Title X fund recipients to engage in abortion-related activities. The United States Court of Appeals for the Second Circuit upheld the regulations, finding them to be a permissible construction of the statute, as well as consistent with the First and Fifth Amendments of the Constitution. We granted certiorari to resolve a split among the Courts of Appeals.[^{Footnote 1} ] We affirm.

I

A

In 1970, Congress enacted Title X of the Public Health Service Act (Act), 84 stat. 1506, as amended, 42 U.S.C. 300-300a-6, which provides federal funding for family planning services. The Act authorizes the Secretary 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." 300(a). Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate." 300a-4. 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." 42 U.S.C. 300a-6. That restriction was intended to ensure that Title X funds would "be used only to support preventive 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).

In 1988, the Secretary promulgated new regulations designed to provide "`clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning." 53 Fed. Reg. 2923-2924 (1988). The regulations clarify, 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 "preconceptual counseling, education, and general reproductive health care," and expressly exclude "pregnancy care (including obstetric or prenatal care)." 42 CFR 59.2 (1989).[^{Footnote 2} ] The regulations "focus the emphasis of the Title X program on its traditional mission: the provision of preventive 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 attach three principal conditions on the grant of federal funds for Title X projects. First, the regulations specify 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). Because Title X is limited to preconceptional services, 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. 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 the mother and the unborn child." Ibid. The list may 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." 59.8(a)(3). The Title X project is expressly prohibited from referring a pregnant woman to an abortion provider, even upon specific request. One permissible response to such an inquiry is that "the project does not consider abortion an appropriate method of family planning, and therefore does not counsel or refer for abortion." 59.8(b)(5).

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." 59.10(a). Forbidden activities include 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 of 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. Ibid.

Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities. 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." Ibid. The regulations

provide 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. Ibid.

B.

Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. Respondent is the Secretary of the Department of Health and Human Services. After the regulations had been promulgated, but before they had been applied, petitioners filed two separate actions, later consolidated, challenging the facial validity of the regulations and seeking declaratory and injunctive relief to prevent implementation of the regulations. Petitioners challenged the regulations on the grounds that they were not authorized by Title X and that they violate the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers. After initially granting the petitioners a preliminary injunction, the District Court rejected petitioners' statutory and constitutional challenges to the regulations and granted summary judgment in favor of the Secretary. New York v. Bowen, 690 F.Supp. 1261 (SDNY 1988).

A panel of the Court of Appeals for the Second Circuit affirmed.  889 F.2d 401 (1989). Applying this Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,  467 U.S. 837, 842 -843 (1984), the Court of Appeals determined that the regulations were a permissible construction of the statute that legitimately effectuated Congressional intent. The court rejected as "highly strained," petitioners' contention that the plain language of 1008 forbids Title X projects only from performing abortions. The court reasoned that "it would be wholly anomalous to read Section 1008 to mean that a program that merely counsels, but does not perform, abortions does not include abortion as a `method of family planning.'" 889 F.2d at 407. "[T]he natural

construction of . . . the term `method of family planning' includes counseling concerning abortion." Ibid. The court found this construction consistent with the legislative history, and observed that "[a]ppellants' contrary view of the legislative history is based entirely on highly generalized statements about the expansive scope of the family planning services" that "do not specifically mention counseling concerning abortion as an intended service of Title X projects" and that "surely cannot be read to trump a section of the statute that specifically excludes it." Id., at 407-408.

Turning to petitioners' constitutional challenges to the regulations, he Court of Appeals rejected petitioners' Fifth Amendment challenge. It held that the regulations do not impermissibly burden a woman's right to an abortion, because the "government may validly choose to favor childbirth over abortion and to implement that choice by funding medical services relating to childbirth but not those relating to abortion." Id., at 410. Finding that the prohibition on the performance of abortions upheld by the Court in Webster v. Reproductive Health Services,  492 U.S. 490 (1989), was "substantially greater in impact than the regulations challenged in the instant matter," 889 F.2d at 411, the court concluded that the regulations "create[d] no affirmative legal barriers to access to abortion." Ibid., citing Webster v. Reproductive Health Services.

The court likewise found that the "Secretary's implementation of Congress's decision not to fund abortion counseling, referral or advocacy also does not, under applicable Supreme Court precedent, constitute a facial violation of the First Amendment rights of health care providers or of women." 889 F.2d at 412. The court explained that under Regan v. Taxation With Representation of Wash.,  461 U.S. 540 (1983), the Government has no obligation to subsidize even the exercise of fundamental rights, including "speech rights." The court also held that the regulations do not violate the First Amendment by "condition[ing] receipt of a benefit on the

relinquishment of constitutional rights," because Title X grantees and their employees "remain free to say whatever they wish about abortion outside the Title X project." 889 F.2d at 412. Finally, the court rejected petitioners' contention that the regulations "facially discriminate on the basis of the viewpoint of the speech involved." Id., at 414.

II

We begin by pointing out the posture of the cases before us. Petitioners are challenging the facial validity of the regulations. Thus, we are concerned only with the question whether, on their face, the regulations are both authorized by the Act, and can be construed in such a manner that they can be applied to a set of individuals without infringing upon constitutionally protected rights. Petitioners face a heavy burden in seeking to have the regulations invalidated as facially unconstitutional. " A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [the regulations] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [them] wholly invalid." United States v. Salerno,  481 U.S. 739, 745 (1987).

We turn first to petitioners' contention that the regulations exceed the Secretary's authority under Title X, and are arbitrary and capricious. We begin with an examination of the regulations concerning abortion counseling, referral, and advocacy, which every Court of Appeals has found to be authorized by the statute, and then turn to the "program integrity requirement," with respect to which the courts below have adopted conflicting positions. We then address petitioner's claim that the regulations must be struck down because they raise a substantial constitutional question.

A

We need not dwell on the plain language of the statute, because we agree with every court to have addressed the issue that the language is ambiguous. The language of 1008 - that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning" - does not speak directly to the issues of counseling, referral, advocacy, or program integrity. If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S., at 842-843.

The Secretary's construction of Title X may not be disturbed as an abuse of discretion if it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' expressed intent. Ibid. In determining whether a construction is permissible, "[t]he court need not conclude that the agency construction was the only one it could permissibly have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id., at 843, n. 11. Rather, substantial deference is accorded to the interpretation of the authorizing statute by the agency authorized with administering it. Id., at 844.

The broad language of Title X plainly allows the Secretary's construction of the statute. By its own terms, 1008 prohibits the use of Title X funds "in programs where abortion is a method of family planning." Title X does not define the term "method of family planning," nor does it enumerate what types of medical and counseling services are entitled to Title X funding. Based on the broad directives provided by Congress in Title X in general and 1008 in particular, we are unable to say that the Secretary's construction of the prohibition in 1008 to require a ban on counseling, referral, and advocacy within the Title X project is impermissible.

The District Courts and Courts of Appeals that have examined the legislative history have all found, at least with regard to the Act's counseling, ref