TIME: Almanac 1993/TIME Almanac 1993.iso/time/060391/0603100.000

Text File | 1992-08-28 | 8.0 KB | 169 lines

                                                                                NATION, Page 16

SUPREME COURT

Gagging the Clinics


The Justices did not disturb the constitutional right to an
abortion but made it illegal to discuss the procedure in federally
funded centers

By JILL SMOLOWE -- With reporting by Tom Curry/Chicago and Julie
Johnson/Washington

"Government . . . may validly choose to fund childbirth over
abortion."

    -- CHIEF JUSTICE WILLIAM REHNQUIST, THE MAJORITY OPINION

"This is a course nearly as noxious as overruling Roe directly..."

    -- JUSTICE HARRY BLACKMUN, IN DISSENT



    When politicians, both Democrats and Republicans, latched
on to the abortion issue as the sort of emotional question that
extracts votes and campaign funds from true believers, they
unleashed a venomous public argument. That debate heated up
again last week in the wake of a highly divisive Supreme Court
decision. The Justices upheld a federal regulation, conceived by
the Reagan Administration three years ago to assuage
conservative constituents, that bans discussion of abortion in
federally funded health clinics.

    The court's ruling in Rust v. Sullivan made little medical
or intellectual or moral sense. It does not forbid women to
seek abortion counseling and referrals. But it narrows -- and
in some cases may even eliminate -- access to such services for
many poor and low-income women who cannot afford private
medical advice, thereby placing informed choice beyond their
reach. "For these women," Justice Harry Blackmun warned in a
harsh dissenting opinion, "the government will have obliterated
the freedom to choose as surely as if it had banned abortions
outright." The court's action set pro- and anti-abortion
advocates at one another again, arguing the merits of the
decision itself and predicting fearfully or hopefully that the
court will next go the full distance and outlaw abortion
altogether.

    The court's 5-to-4 vote forces the thousands of clinics
that get aid from Washington under Title X of the Public Health
Service Act to make a stark choice: either halt their
abortion-counseling and -referral services or forgo federal
funds, at a time when most clinics are strapped for cash. Until
last week, the 1988 regulations -- which bar such clinics from
offering either spoken instruction or printed materials that
"encourage, promote or advocate abortion" -- were not enforced,
pending the outcome of legal challenges.

    While the ruling does not directly threaten the
fundamental right to an abortion granted under the 1973 Roe v.
Wade decision, the court divided over the practical consequences
for the 4 million women who rely on Title X funding. In his
majority opinion, Chief Justice William Rehnquist contended that
the ban on abortion counseling leaves a woman "in no different
position than she would have been if the government had not
enacted Title X." Black mun, who had penned the Roe decision,
differed sharply, pointing to the 1988 regulation that requires
clinic staff members to answer all abortion inquiries with the
words "The project does not consider abortion an appropriate
method of family planning." He warned that a patient will
construe this message "as professional advice to forgo her right
to obtain an abortion."

    The vote that stirred the most notice was the tie-breaking
yea cast by David Souter, the court's newest Justice.
Pro-choice advocates had earlier been encouraged by Souter's
sharp questioning of U.S. Solicitor General Kenneth Starr during
oral arguments in the Rust case last fall. "The physician cannot
perform a normal professional responsibility," Souter had said.
"You are telling us ((that the government)) in effect may
preclude professional speech." Yet last week Souter concurred
in a majority opinion based on that very reasoning. Since the
ruling did not directly address the question of a woman's right
to an abortion, it does not accurately presage how Souter will
tilt in any future challenge to Roe. Still, anti-abortion
advocates feel they have found a friend in Souter. "We are
delighted that President Bush's first appointee voted with the
majority," said Douglas Johnson, of the National Right to Life
Committee. Pro-choice advocates regard last week's holding in
Rust as an ominous harbinger of decisions to come. "Justice
Souter showed his true colors today," said Judith Lichtman,
president of the Women's Legal Defense Fund, adding that the Roe
ruling was in "immediate peril."

    Some believe that the First Amendment may be endangered as
well. Faye Wattleton, president of the Planned Parenthood
Federation of America, which operates nearly 900 clinics in 49
states, called the decision to halt abortion counseling "an
unimaginable blow to free speech." From Capitol Hill came
rumblings that liberty of expression had been, as Democratic
Congressman Ron Wyden of Oregon put it, "thrown into the trash
can." But the toughest counterpunch was landed by Blackmun, who
charged the court with "viewpoint-based suppression of speech."

    The ruling also raised disturbing concerns about medical
ethics. Alexander Sanger, president of Planned Parenthood of New
York City, said the 1988 regulations amount to
"government-enforced malpractice" by violating "the most basic
principles of health care: telling patients the truth, the whole
truth, about their condition and their options." Within hours
of the Rust decision, Sanger announced that the Planned
Parenthood clinic in the South Bronx, where petitioner Dr.
Irving Rust serves as medical director, will give up Title X
funds and continue to advise women on their full range of
options.

    In practical terms, what will be the effect of the Rust
decision? In the clinics, constitutional questions are reduced
to basics: Where can I get an abortion? How much will it cost?
"We are literally, totally, utterly gagged," says Amy Die nesch,
executive director of Planned Parenthood in the Chicago area.
"Women won't have help being referred to a reputable or safe
provider." Moreover, clinics that choose to give up federal
funds may have to cut staff and curtail hours. Warns Tom Kring
of the California Regional Family Planning Council: "The
cutbacks may force women seeking first-trimester abortions into
waiting longer and longer," an outcome that poses greater
medical risks. Some counselors fear that the people in the poor
neighborhoods served by Title X clinics will misunderstand the
message of the latest court ruling. Many women may conclude that
all counseling services have been halted. As a result, they may
stop visiting the centers and receiving preventive care -- a
primary goal of Title X funding. Brenda Alston, 29, who is a
patient at Rust's clinic, had a succinct response for the
Justices: "No need in coming if you can't talk about the things
you want to."

    Another result of the decision could be the further
exaggeration of a two-tiered health-care system: one that
provides affluent women with the full range of options and
offers poor women either skewed information or a range of
services severely constrained by funding limitations. "A double
standard of medical care is now not only legal," argues Sanger,
"but mandatory in this country." Wattleton asserts that the
congressional intent behind Title X was to "help needy women,
not victimize them by subjecting them to second-class health
care."

    Pro-choice advocates hope that Congress will step forward
and strike down the 1988 regulations. Earlier this year,
Congressmen Wyden of Oregon and John Porter, an Illinois
Republican, introduced legislation designed to do just that.
Prospects for their bill were enhanced by the House's passage
last week of a defense-spending package that would allow U.S.
servicewomen to obtain abortions in overseas military hospitals
at their own expense. But even if Congress did pass the
Wyden-Porter bill, it would face an almost certain Bush veto and
another protracted political battle that would promise to carry
into the 1992 elections.