The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_1391/89_1391.d1

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Subject: 89-1391 & 89-1392 -- DISSENT, RUST v. SULLIVAN




    SUPREME COURT OF THE UNITED STATES


Nos. 89-1391 and 89-1392


IRVING RUST, etc., et al., PETITIONERS
v.
89-1391
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


NEW YORK, et al., PETITIONERS
v.
89-1392
LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES


on writs of certiorari to the united states court of appeals for the second
circuit

[May 23, 1991]



    Justice Blackmun, with whom Justice Marshall joins, with whom Justice
Stevens joins as to Parts II and III, and with whom Justice O'Connor joins
as to Part I, dissenting.
    Casting aside established principles of statutory construction and
administrative jurisprudence, the majority in these cases today
unnecessarily passes upon important questions of constitutional law.  In so
doing, the Court, for the first time, upholds viewpoint-based suppression
of speech solely because it is imposed on those dependent upon the
Government for economic support.  Under essentially the same rationale, the
majority upholds direct regulation of dialogue between a pregnant woman and
her physician when that regulation has both the purpose and the effect of
manipulating her decision as to the continuance of her pregnancy.  I
conclude that the Secretary's regulation of referral, advocacy, and
counseling activities exceeds his statutory authority, and, also, that the
Regulations violate the First and Fifth Amendments of our Constitution.
Accordingly, I dissent and would reverse the divided-vote judgment of the
Court of Appeals.

I
    The majority does not dispute that "[f]ederal statutes are to be so
construed as to avoid serious doubt of their constitutionality."
Machinists v. Street, 367 U. S. 740, 749 (1961).  See also Hooper v.
California, 155 U. S. 648, 657 (1895); Crowell v. Benson, 285 U. S. 22, 62
(1932); United States v. Security Industrial Bank, 459 U. S. 70, 78 (1982).
Nor does the majority deny that this principle is fully applicable to cases
such as the instant one, in which a plausible but constitutionally suspect
statutory interpretation is embodied in an administrative regulation.  See
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction
Trades Council, 485 U. S. 568, 575 (1988); NLRB v. Catholic Bishop of
Chicago, 440 U. S. 490 (1979); Kent v. Dulles, 357 U. S. 116, 129-130
(1957).  Rather, in its zeal to address the constitutional issues, the
majority sidesteps this established canon of construction with the feeble
excuse that the challenged Regulations "do not raise the sort of `grave and
doubtful constitutional questions,' . . . that would lead us to assume
Congress did not intend to authorize their issuance."  Ante, at 15, quoting
United States v. Delaware and Hudson Co., 213 U. S. 366, 408 (1909).
    This facile response to the intractable problem the Court addresses
today is disingenuous at best.  Whether or not one believes that these
Regulations are valid, it avoids reality to contend that they do not give
rise to serious constitutional questions.  The canon is applicable to this
case not because "it was likely that [the Regulations] . . . would be
challenged on constitutional grounds," ante, at 15, but because the
question squarely presented by the Regulations -- the extent to which the
Government may attach an otherwise unconstitutional condition to the
receipt of a public benefit -- implicates a troubled area of our
jurisprudence in which a court ought not entangle itself unnecessarily.
See, e. g., Epstein, Unconstitutional Conditions, State Power, and the
Limits of Consent, 102 Harv. L. Rev. 4, 6 (1988) (describing this problem
as "the basic structural issue that for over a hundred years has bedeviled
courts and commentators alike . . . ."); Sullivan, Unconstitutional
Conditions, 102 Harv. L. Rev. 1413, 1415-1416 (1989) (observing that this
Court's unconstitutional conditions cases "seem a minefield to be traversed
gingerly").
    As is discussed in Parts II and III, infra, the Regulations impose
viewpoint-based restrictions upon protected speech and are aimed at a
woman's decision whether to continue or terminate her pregnancy.  In both
respects, they implicate core constitutional values.  This verity is
evidenced by the fact that two of the three Courts of Appeals that have
entertained challenges to the Regulations have invalidated them on
constitutional grounds.  See Massachusetts v. Secretary of Health and Human
Services, 899 F. 2d 53 (CA1 1990); Planned Parenthood Federation of America
v. Sullivan, 913 F. 2d 1492 (CA10 1990).
    A divided panel of the Tenth Circuit found the Regulations to "fal[l]
squarely within the prohibition in Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S. 747 (1986), and City of Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), against
intrusion into the advice a woman requests from or is given by her doctor."
913 F. 2d, at 1501.  The First Circuit, en banc with one judge dissenting,
found the Regulations to violate both the privacy rights of Title X
patients and the First Amendment rights of Title X grantees.  See also New
York v. Sullivan, 889 F. 2d 401, 415 (CA2 1989) (Kearse, J., dissenting in
part).  That a bare majority of this Court today reaches a different result
does not change the fact that the constitutional questions raised by the
Regulations are both grave and doubtful.
    Nor is this a case in which the statutory language itself requires us
to address a constitutional question.  Section 1008 of the Public Health
Service Act, 84 Stat. 1508, 42 U. S. C. MDRV 300a-6, provides simply: "None
of the funds appropriated under this title shall be used in programs where
abortion is a method of family planning."  The majority concedes that this
language "does not speak directly to the issues of counseling, referral,
advocacy, or program integrity," ante, at 7, and that "the legislative
history is ambiguous" in this respect.  Ante, at 9.  Consequently, the
language of MDRV 1008 easily sustains a constitutionally trouble-free
interpretation. {1}
    Thus, this is not a situation in which "the intention of Congress is
revealed too distinctly to permit us to ignore it because of mere
misgivings as to power."  Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379
(1933).  Indeed, it would appear that our duty to avoid passing
unnecessarily upon important constitutional questions is strongest where,
as here, the language of the statute is decidedly ambiguous.  It is both
logical and eminently prudent to assume that when Congress intends to press
the limits of constitutionality in its enactments, it will express that
intent in explicit and unambiguous terms.  See Sunstein, Law and
Administration After Chevron, 90 Colum. L. Rev. 2071, 2113 (1990) ("It is
thus implausible that, after Chevron, agency interpretations of ambiguous
statutes will prevail even if the consequence of those interpretations is
to produce invalidity or to raise serious constitutional doubts").
    Because I conclude that a plainly constitutional construction of MDRV
1008 "is not only `fairly possible' but entirely reasonable," Machinists,
367 U. S., at 750, I would reverse the judgment of the Court of Appeals on
this ground without deciding the constitutionality of the Secretary's
Regulations.

II
    I also strongly disagree with the majority's disposition of
petitioners' constitutional claims, and because I feel that a response
thereto is indicated, I move on to that issue.

A
    Until today, the Court never has upheld viewpoint-based suppression of
speech simply because that suppression was a condition upon the acceptance
of public funds.  Whatever may be the Government's power to condition the
receipt of its largess upon the relinquishment of constitutional rights, it
surely does not extend to a condition that suppresses the recipient's
cherished freedom of speech based solely upon the content or viewpoint of
that speech.  Speiser v. Randall, 357 U. S. 513, 518-519 (1958) ("To deny
an exemption to claimants who engage in certain forms of speech is in
effect to penalize them for such speech. . . .  The denial is `frankly
aimed at the suppression of dangerous ideas,' " quoting American
Communications Assn. v. Douds, 339 U. S. 382, 402 (1950)).  See Cammarano
v. United States, 358 U. S. 498, 513 (1959).  See also League of Women
Voters, 468 U. S., at 407 (Rehnquist, J., dissenting).  Cf. Arkansas
Writers' Project, Inc. v. Ragland, 481 U. S. 221, 237 (Scalia, J.,
dissenting).  This rule is a sound one, for, as the Court often has noted:
" `A regulation of speech that is motivated by nothing more than a desire
to curtail expression of a particular point of view on controversial issues
of general interest is the purest example of a "law . . . abridging the
freedom of speech, or of the press." ' "  League of Women Voters, 468 U.
S., at 383-384, quoting Consolidated Edison Co. v. Public Service Comm'n of
New York, 447 U. S. 530, 546 (1980) (Stevens, J., concurring in judgment).
"[A]bove all else, the First Amendment means that government has no power
to restrict expression because of its message, its ideas, its subject
matter, or its content."  Police Department of Chicago v. Mosley, 408 U. S.
92, 95 (1972).
    Nothing in the Court's opinion in Regan v. Taxation With Representation
of Washington, 461 U. S. 540 (1983), can be said to challenge this
long-settled understanding.  In Regan, the Court upheld a content-neutral
provision of the Internal Revenue Code, 26 U. S. C. MDRV 501(c)(3), that
disallowed a particular tax-exempt status to organizations that
"attempt[ed] to influence legislation," while affording such status to
veterans' organizations irrespective of their lobbying activities.  Finding
the case controlled by Cammarano, supra, the Court explained: "The case
would be different if Congress were to discriminate invidiously in its
subsidies in such a way as to " `ai[m] at the suppression of dangerous
ideas.' " . . .  We find no indication that the statute was intended to
suppress any ideas or any demonstration that it has had that effect."  461
U. S., at 548, quoting Cammarano, 358 U. S., at 513, in turn quoting
Speiser, 357 U. S., at 519.  The separate concurrence in Regan joined the
Court's opinion precisely "[b]ecause 26 U. S. C. MDRV 501's discrimination
between veterans' organizations and charitable organizations is not based
on the content of their speech."  Id., at 551.
    It cannot seriously be disputed that the counseling and referral
provisions at issue in the present cases constitute content-based
regulation of speech.  Title X grantees may provide counseling and referral
regarding any of a wide range of family planning and other topics, save
abortion.  Cf. Consolidated Edison Co., 447 U. S., at 537 ("The First
Amendment's hostility to content-based regulation extends not only to
restrictions on particular viewpoints, but also to prohibition of public
discussion of an entire topic"); Boos v. Barry, 485 U. S. 312, 319 (1988)
(opinion of O'Connor, J.) (same).
    The Regulations are also clearly viewpoint-based.  While suppressing
speech favorable to abortion with one hand, the Secretary compels
anti-abortion speech with the other.  For example, the Department of Health
and Human Services' own description of the Regulations makes plain that
"Title X projects are required to facilitate access to prenatal care and
social services, including adoption services, that might be needed by the
pregnant client to promote her well-being and that of her child, while
making it abundantly clear that the project is not permitted to promote
abortion by facilitating access to abortion through the referral process."
53 Fed. Reg. 2927 (1988) (emphasis added).
    Moreover, the Regulations command that a project refer for prenatal
care each woman diagnosed as pregnant, irrespective of the woman's
expressed desire to continue or terminate her pregnancy.  42 CFR MDRV
59.8(a)(2) (1990).  If a client asks directly about abortion, a Title X
physician or counselor is required to say, in essence, that the project
does not consider abortion to be an appropriate method of family planning.
MDRV 59.8(b)(4).  Both requirements are antithetical to the First
Amendment.  See Wooley v. Maynard, 430 U. S. 705, 714 (1977).
    The Regulations pertaining to "advocacy" are even more explicitly
viewpoint-based.  These provide: "A Title X project may not encourage,
promote or advocate abortion as a method of family planning."  MDRV 59.10
(emphasis added).  They explain: "This requirement prohibits actions to
assist women to obtain abortions or increase the availability or
accessibility of abortion for family planning purposes."  MDRV 59.10(a)
(emphasis added).  The Regulations do not, however, proscribe or even
regulate anti-abortion advocacy.  These are clearly restrictions aimed at
the suppression of "dangerous ideas."
    Remarkably, the majority concludes that "the Government has not
discriminated on the basis of viewpoint; it has merely chosen to fund one
activity to the exclusion of another."  Ante, at 16.  But the majority's
claim that the Regulations merely limit a Title X project's speech to
preventive or preconceptional services, ibid., rings hollow in light of the
broad range of non-preventive services that the Regulations authorize Title
X projects to provide. {2}  By refusing to fund those family-planning
projects that advocate abortion because they advocate abortion, the
Government plainly has targeted a particular viewpoint.  Cf. Ward v. Rock
Against Racism, 491 U. S. 781 (1989).  The majority's reliance on the fact
that the Regulations pertain solely to funding decisions simply begs the
question.  Clearly, there are some bases upon which government may not rest
its decision to fund or not to fund.  For example, the Members of the
majority surely would agree that government may not base its decision to
support an activity upon considerations of race.  See, e. g., Yick Wo v.
Hopkins, 118 U. S. 356 (1886).  As demonstrated above, our cases make clear
that ideological viewpoint is a similarly repugnant ground upon which to
base funding decisions.
    The majority's reliance upon Regan in this connection is also
misplaced.  That case stands for the proposition that government has no
obligation to subsidize a private party's efforts to petition the
legislature regarding its views.  Thus, if the challenged Regulations were
confined to non-ideological limitations upon the use of Title X funds for
lobbying activities, there would exist no violation of the First Amendment.
The advocacy Regulations at issue here, however, are not limited to
lobbying but extend to all speech having the effect of encouraging,
promoting, or advocating abortion as a method of family planning.  MDRV
59.10(a).  Thus, in addition to their impermissible focus upon the
viewpoint of regulated speech, the provisions intrude upon a wide range of
communicative conduct, including the very words spoken to a woman by her
physician.  By manipulating the content of the doctor/patient dialogue, the
Regulations upheld today force each of the petitioners "to be an instrument
for fostering public adherence to an ideological point of view [he or she]
finds unacceptable."  Wooley v. Maynard, 430 U. S., at 715.  This type of
intrusive, ideologically based regulation of speech goes far beyond the
narrow lobbying limitations approved in Regan, and cannot be justified
simply because it is a condition upon the receipt of a governmental
benefit. {3}

B
    The Court concludes that the challenged Regulations do not violate the
First Amendment rights of Title X staff members because any limitation of
the employees' freedom of expression is simply a consequence of their
decision to accept employment at a federally funded project.  Ante, at 22.
But it has never been sufficient to justify an otherwise unconstitutional
condition upon public employment that the employee may escape the condition
by relinquishing his or her job.  It is beyond question "that a government
may not require an individual to relinquish rights guaranteed him by the
First Amendment as a condition of public employment."  Abood v. Detroit
Board of Education, 431 U. S. 209, 234 (1977), citing Elrod v. Burns, 427
U. S. 347, 357-360 (1976), and cases cited therein; Perry v. Sindermann,
408 U. S. 593 (1972); Keyishian v. Board of Regents, 385 U. S. 589 (1967).
Nearly two decades ago, it was said:


    "For at least a quarter-century, this Court has made clear that even
though a person has no `right' to a valuable governmental benefit and even
though the government may deny him the benefit for any number of reasons,
there are some reasons upon which the government may not rely.  It may not
deny a benefit to a person on a basis that infringes his constitutionally
protected interests -- especially, his interest in freedom of speech.  For
if the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those
freedoms would in effect be penalized and inhibited.  This would allow the
government to `produce a result which [it] could not command directly.' "
Perry v. Sindermann, 408 U. S., at 597, quoting Speiser v. Randall, 357 U.
S. 513, 526 (1958).


    The majority attempts to circumvent this principle by emphasizing that
Title X physicians and counselors "remain free . . . to pursue
abortion-related activities when they are not acting under the auspices of
the Title X project."  Ante, at 22.  "The regulations," the majority
explains, "do not in any way restrict the activities of those persons
acting as private individuals."  Ibid.  Under the majority's reasoning, the
First Amendment could be read to tolerate any governmental restriction upon
an employee's speech so long as that restriction is limited to the funded
workplace.  This is a dangerous proposition, and one the Court has rightly
rejected in the past.
    In Abood, it was no answer to the petitioners' claim of compelled
speech as a condition upon public employment that their speech outside the
workplace remained unregulated by the State.  Nor was the public employee's
First Amendment claim in Rankin v. McPherson, 483 U. S. 378 (1987),
derogated because the communication that her employer sought to punish
occurred during business hours.  At the least, such conditions require
courts to balance the speaker's interest in the message against those of
government in preventing its dissemination.  Id., at 384; Pickering v.
Board of Education, 391 U. S. 563, 568 (1968).
    In the cases at bar, the speaker's interest in the communication is
both clear and vital.  In addressing the familyplanning needs of their
clients, the physicians and counselors who staff Title X projects seek to
provide them with the full range of information and options regarding their
health and reproductive freedom.  Indeed, the legitimate expectations of
the patient and the ethical responsibilities of the medical profession
demand no less.  "The patient's right of selfdecision can be effectively
exercised only if the patient possesses enough information to enable an
intelligent choice. . . .  The physician has an ethical obligation to help
the patient make choices from among the therapeutic alternatives consistent
with good medical practice."  Current Opinions, the Council on Ethical and
Judicial Affairs of the American Medical Association MDRV 8.08 (1989).  See
also President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Making Health Care Decisions 70
(1982); American College of Obstetricians & Gynecologists, Standards for
Obstetric-Gynecologic Services 62 (7th ed. 1989).  When a client becomes
pregnant, the full range of therapeutic alternatives includes the abortion
option, and Title X counselors' interest in providing this information is
compelling.
    The Government's articulated interest in distorting the doctor/patient
dialogue -- ensuring that federal funds are not spent for a purpose outside
the scope of the program -- falls far short of that necessary to justify
the suppression of truthful information and professional medical opinion
regarding constitutionally protected conduct. {4}  Moreover, the offending
Regulation is not narrowly tailored to serve this interest.  For example,
the governmental interest at stake could be served by imposing rigorous
bookkeeping standards to ensure financial separation or adopting
content-neutral rules for the balanced dissemination of family-planning and
health information.  See Massachusetts v. Secretary of Health & Human
Services, 899 F. 2d 53, 74 (CA1 1990), cert. pending, No. 89-1929.  By
failing to balance or even to consider the free speech interests claimed by
Title X physicians against the Government's asserted interest in
suppressing the speech, the Court falters in its duty to implement the
protection that the First Amendment clearly provides for this important
message.

C
    Finally, it is of no small significance that the speech the Secretary
would suppress is truthful information regarding constitutionally protected
conduct of vital importance to the listener.  One can imagine no legitimate
governmental interest that might be served by suppressing such information.
Concededly, the abortion debate is among the most divisive and contentious
issues that our Nation has faced in recent years.  "But freedom to differ
is not limited to things that do not matter much.  That would be a mere
shadow of freedom.  The test of its substance is the right to differ as to
things that touch the heart of the existing order."  West Virginia Board of
Education v. Barnette, 319 U. S. 624, 642 (1943).

III
    By far the most disturbing aspect of today's ruling is the effect it
will have on the Fifth Amendment rights of the women who, supposedly, are
beneficiaries of Title X programs.  The majority rejects petitioners' Fifth
Amendment claims summarily.  It relies primarily upon the decisions in
Harris v. McRae, 448 U. S. 297 (1980), and Webster v. Reproductive Health
Services, 492 U. S. 490 (1989).  There were dissents in those cases, and we
continue to believe that they were wrongly and unfortunately decided.  Be
that as it may, even if one accepts as valid the Court's theorizing in
those cases, the majority's reasoning in the present cases is flawed.
    Until today, the Court has allowed to stand only those restrictions
upon reproductive freedom that, while limiting the availability of
abortion, have left intact a woman's ability to decide without coercion
whether she will continue her pregnancy to term.  Maher v. Roe, 432 U. S.
464 (1977), McRae, and Webster are all to this effect.  Today's decision
abandons that principle, and with disastrous results.
    Contrary to the majority's characterization, this is not a case in
which individuals seek government aid in exercising their fundamental
rights.  The Fifth Amendment right asserted by petitioners is the right of
a pregnant woman to be free from affirmative governmental interference in
her decision.  Roe v. Wade, 410 U. S. 113 (1973), and its progeny are not
so much about a medical procedure as they are about a woman's fundamental
right to self-determination.  Those cases serve to vindicate the idea that
"liberty," if it means anything, must entail freedom from governmental
domination in making the most intimate and personal of decisions.  See, e.
g., Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 444
(1983) (governmental interest in ensuring that pregnant women receive
medically relevant information "will not justify abortion regulations
designed to influence the woman's informed choice between abortion or
childbirth"); Maher v. Roe, 432 U. S., at 473 (noting that the Court's
abortion cases "recognize a constitutionally protected interest `in making
certain kinds of important decisions' free from governmental compulsion,"
quoting Whalen v. Roe, 429 U. S. 589, 599 (1977)); see also Harris v.
McRae, 448 U. S., at 312; Thornburgh, 476 U. S., at 759; Roe v. Wade, 410
U. S., at 169-170 (Stewart, J., concurring).  By suppressing medically
pertinent information and injecting a restrictive ideological message
unrelated to considerations of maternal health, the Government places
formidable obstacles in the path of Title X clients' freedom of choice and
thereby violates their Fifth Amendment rights.
    It is crystal-clear that the aim of the challenged provisions -- an aim
the majority cannot escape noticing -- is not simply to ensure that federal
funds are not used to perform abortions, but to "reduce the incidence of
abortion."  42 CFR MDRV 59.2 (1990) (in definition of "family planning").
As recounted above, the Regulations require Title X physicians and
counselors to provide information pertaining only to childbirth, to refer a
pregnant woman for prenatal care irrespective of her medical situation,
and, upon direct inquiry, to respond that abortion is not an "appropriate
method" of family planning.
    The undeniable message conveyed by this forced speech, and the one that
the Title X client will draw from it, is that abortion nearly always is an
improper medical option.  Although her physician's words, in fact, are
strictly controlled by the Government and wholly unrelated to her
particular medical situation, the Title X client will reasonably construe
them as professional advice to forgo her right to obtain an abortion.  As
would most rational patients, many of these women will follow that
perceived advice and carry their pregnancy to term, despite their needs to
the contrary and despite the safety of the abortion procedure for the vast
majority of them.  Others, delayed by the Regulations' mandatory prenatal
referral, will be prevented from acquiring abortions during the period in
which the process is medically sound and constitutionally protected.
    In view of the inevitable effect of the Regulations, the majority's
conclusion that "[t]he difficulty that a woman encounters when a Title X
project does not provide abortion counseling or referral leaves her in no
different position than she would have been if the government had not
enacted Title X," ante, at 25, is insensitive and contrary to common human
experience.  Both the purpose and result of the challenged Regulations is
to deny women the ability voluntarily to decide their procreative destiny.
For these women, the Government will have obliterated the freedom to choose
as surely as if it had banned abortions outright.  The denial of this
freedom is not a consequence of poverty but of the Government's
ill-intentioned distortion of information it has chosen to provide. {5}
    The substantial obstacles to bodily self-determination that the
Regulations impose are doubly offensive because they are effected by
manipulating the very words spoken by physicians and counselors to their
patients.  In our society, the doctor/patient dialogue embodies a unique
relationship of trust.  The specialized nature of medical science and the
emotional distress often attendant to health-related decisions requires
that patients place their complete confidence, and often their very lives,
in the hands of medical professionals.  One seeks a physician's aid not
only for medication or diagnosis, but also for guidance, professional
judgment, and vital emotional support.  Accordingly, each of us attaches
profound importance and authority to the words of advice spoken by the
physician.
    It is for this reason that we have guarded so jealously the
doctor/patient dialogue from governmental intrusion.  "[I]n Roe and
subsequent cases we have `stressed repeatedly the central role of the
physician, both in consulting with the woman about whether or not to have
an abortion, and in determining how any abortion was to be carried out.' "
Akron, 462 U. S., at 447, quoting Colautti v. Franklin, 439 U. S. 379, 387
(1979).  See also Thornburgh, 476 U. S., at 763.  The majority's approval
of the Secretary's Regulations flies in the face of our repeated warnings
that regulations tending to "confine the attending physician in an
undesired and uncomfortable straitjacket in the practice of his
profession," cannot endure.  Planned Parenthood of Central Mo. v. Danforth,
428 U. S. 52, 67, n. 8 (1976).
    The majority attempts to distinguish our holdings in Akron and
Thornburgh on the post-hoc basis that the governmental intrusions into the
doctor/patient dialogue invalidated in those cases applied to all
physicians within a jurisdiction while the Regulations now before the Court
pertain to the narrow class of healthcare professionals employed at Title X
projects.  Ante, at 25.  But the rights protected by the Constitution are
personal rights.  Loving v. Virginia, 388 U. S. 1, 12 (1967); Shelley v.
Kraemer, 334 U. S. 1, 22 (1948).  And for the individual woman, the
deprivation of liberty by the Government is no less substantial because it
affects few rather than many.  It cannot be that an otherwise
unconstitutional infringement of choice is made lawful because it touches
only some of the Nation's pregnant women and not all of them.
    The manipulation of the doctor/patient dialogue achieved through the
Secretary's Regulations is clearly an effort "to deter a woman from making
a decision that, with her physician, is hers to make."  Thornburgh, 476 U.
S., at 759.  As such, it violates the Fifth Amendment. {6}

IV
    In its haste further to restrict the right of every woman to control
her reproductive freedom and bodily integrity, the majority disregards
established principles of law and contorts this Court's decided cases to
arrive at its preordained result.  The majority professes to leave
undisturbed the free speech protections upon which our society has come to
rely, but one must wonder what force the First Amendment retains if it is
read to countenance the deliberate manipulation by the Government of the
dialogue between a woman and her physician.  While technically leaving
intact the fundamental right protected by Roe v. Wade, the Court, "through
a relentlessly formalistic catechism," McRae, 448 U. S., at 341 (Marshall,
J., dissenting), once again has rendered the right's substance nugatory.
See Webster v. Reproductive Health Services, 492 U. S., at 537 and 560
(opinions concurring in part and dissenting in part).  This is a course
nearly as noxious as overruling Roe directly, for if a right is found to be
unenforceable, even against flagrant attempts by government to circumvent
it, then it ceases to be a right at all.  This, I fear, may be the effect
of today's decision.







------------------------------------------------------------------------------
1
    The majority states: "There is no question but that the statutory
prohibition contained in MDRV 1008 is constitutional."  Ante, at 16.  This
statement simply begs the question.  Were the Court to read MDRV 1008 to
prohibit only the actual performance of abortions with Title X funds -- as,
indeed, the Secretary did until February 2, 1988, see 53 Fed. Reg. 2923
(1988) -- the provision would fall within the category of restrictions that
the Court upheld in Harris v. McRae, 448 U. S. 297 (1980), and Maher v.
Roe, 432 U. S. 464 (1977).  By interpreting the statute to authorize the
regulation of abortion-related speech between physician and patient,
however, the Secretary, and now the Court, have rejected a constitutionally
sound construction in favor of one that is by no means clearly
constitutional.

2
    In addition to requiring referral for prenatal care and adoption
services, the Regulations permit general health services such as physical
examinations, screening for breast cancer, treatment of gynecological
problems, and treatment for sexually transmitted diseases.  53 Fed. Reg.
2927 (1988).  None of the latter are strictly preventive, preconceptional
services.

3
    The majority attempts to obscure the breadth of its decision through
its curious contention that "the Title X program regulations do not
significantly impinge upon the doctor-patient relationship."  Ante, at 24.
That the doctor-patient relationship is substantially burdened by a rule
prohibiting the dissemination by the physician of pertinent medical
information is beyond serious dispute.  This burden is undiminished by the
fact that the relationship at issue here is not an "all-encompassing" one.
A woman seeking the services of a Title X clinic has every reason to
expect, as do we all, that her physician will not withhold relevant
information regarding the very purpose of her visit.  To suggest otherwise
is to engage in uninformed fantasy.  Further, to hold that the
doctor-patient relationship is somehow incomplete where a patient lacks the
resources to seek comprehensive healthcare from a single provider is to
ignore the situation of a vast number of Americans.  As Justice Marshall
has noted in a different context: "It is perfectly proper for judges to
disagree about what the Constitution requires.  But it is disgraceful for
an interpretation of the Constitution to be premised upon unfounded
assumptions about how people live."  United States v. Kras, 409 U. S. 434,
460 (1973) (dissenting opinion).

4
    It is to be noted that the Secretary has made no claim that the
Regulations at issue reflect any concern for the health or welfare of Title
X clients.

5
    In the context of common-law tort liability, commentators have
recognized: "If there is no duty to go to the assistance of a person in
difficulty or peril, there is at least a duty to avoid any affirmative acts
which make his situation worse. . . .  The same is true, of course, of a
physician who accepts a charity patient.  Such a defendant will then be
liable for a failure to use reasonable care for the protection of the
plaintiff's interests."  P. Keeton et al., Prosser and Keeton on the Law of
Torts 378 (5th ed. 1984) (footnotes omitted).  This observation seems
equally appropriate to the cases at bar.

6
    Significantly, the Court interprets the challenged regulations to allow
a Title X project to refer a woman whose health would be seriously
endangered by continued pregnancy to an abortion provider.  Ante, at 18-19.
To hold otherwise would be to adopt an interpretation that would most
certainly violate a patient's right to substantive due process.  See, e.
g., Youngberg v. Romeo, 457 U. S. 307 (1982); Revere v. Massachusetts
General Hospital, 463 U. S. 239 (1983).  The Solicitor General at oral
argument, however, afforded the Regulations a far less charitable
interpretation.  See Tr. of Oral Arg. 44-47.