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




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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]



    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 abortionrelated 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. {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. 15 300-300a-41, which
provides federal funding for familyplanning 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."  42 U. S.
C. MDRV 300(a).  Grants and contracts under Title X must "be made in
accordance with such regulations as the Secretary may promulgate."  42 U.
S. C. MDRV 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. MDRV 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 MDRV 59.2
(1989). {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.  MDRV
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."  MDRV 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."  MDRV 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."  MDRV 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 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.  MDRV 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 MDRV 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,
the 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. --- (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 MDRV 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, MDRV 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 MDRV 1008 in particular, we are unable
to say that the Secretary's construction of the prohibition in MDRV 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, referral, and advocacy provisions, that the legislative history
is ambiguous with respect to Congress' intent in enacting Title X and the
prohibition of MDSU 1008.  Massachusetts v. Sullivan, 899 F. 2d 53, 62 (CA1
1990) ("Congress has not addressed specifically the question of the scope
of the abortion prohibition.  The language of the statute and the
legislative history can support either of the litigants' positions");
Planned Parenthood Federation of America v. Sullivan, 913 F. 2d 1492, 1497
(CA10 1990) ("[T]he contemporaneous legislative history does not address
whether clinics receiving Title X funds can engage in nondirective
counseling including the abortion option and referrals"); New York v.
Sullivan, 889 F. 2d 401, 407 (CA2 1989) (case below) ("Nothing in the
legislative history of Title X detracts" from the Secretary's construction
of MDRV 1008).  We join these courts in holding that the legislative
history is ambiguous and fails to shed light on relevant congressional
intent.  At no time did Congress directly address the issues of abortion
counseling, referral, or advocacy.  The parties' attempts to characterize
highly generalized, conflicting statements in the legislative history into
accurate revelations of congressional intent are unavailing. {3}
    When we find, as we do here, that the legislative history is ambiguous
and unenlightening on the matters with respect to which the regulations
deal, we customarily defer to the expertise of the agency.  Petitioners
argue, however, that the regulations are entitled to little or no deference
because they "reverse a longstanding agency policy that permitted
nondirective counseling and referral for abortion," Brief for Petitioners
in No. 89-1392, p. 20, and thus represent a sharp beak from the Secretary's
prior construction of the statute.  Petitioners argue that the agency's
prior consistent interpretation of Section 1008 to permit nondirective
counseling and to encourage coordination with local and state family
planning services is entitled to substantial weight.
    This Court has rejected the argument that an agency's interpretation
"is not entitled to deference because it represents a sharp break with
prior interpretations" of the statute in question.  Chevron, 467 U. S., at
862.  In Chevron, we held that a revised interpretation deserves deference
because "[a]n initial agency interpretation is not instantly carved in
stone" and "the agency, to engage in informed rulemaking, must consider
varying interpretations and the wisdom of its policy on a continuing
basis."  Id., at 863-864.  An agency is not required to " `establish rules
of conduct to last forever,' " Motor Vehicle Mfrs. Assn. of United States
v. State Farm Mutual Automobile Ins. Co., 463 U. S. 29, 42 (1983), quoting
American Trucking Assns., Inc. v. Atchinson, T. & S. F. R. Co., 387 U. S.
397, 416 (1967); NLRB v. Curtin Matheson Scientific, Inc.,  494 U. S. ---
(1990), but rather "must be given ample latitude to `adapt [its] rules and
policies to the demands of changing circumstances.' "  Motor Vehicle Mfrs.,
supra, at 42, quoting Permian Basin Area Rate Cases, 390 U. S. 747, 784
(1968).
    We find that the Secretary amply justified his change of interpretation
with a "reasoned analysis."  Motor Vehicle Mfrs., supra, at 42.  The
Secretary explained that the regulations are a result of his determination,
in the wake of the critical reports of the General Accounting Office (GAO)
and the Office of the Inspector General (OIG), that prior policy failed to
implement properly the statute and that it was necessary to provide "clear
and operational guidance to grantees to preserve the distinction between
Title X programs and abortion as a method of family planning."  53 Fed.
Reg. 2923-2924 (1988).  He also determined that the new regulations are
more in keeping with the original intent of the statute, are justified by
client experience under the prior policy, and are supported by a shift in
attitude against the "elimination of unborn children by abortion."  We
believe that these justifications are sufficient to support the Secretary's
revised approach.  Having concluded that the plain language and legislative
history are ambiguous as to Congress' intent in enacting Title X, we must
defer to the Secretary's permissible construction of the statute.
B
    We turn next to the "program integrity" requirements embodied at MDRV
59.9 of the regulations, mandating separate facilities, personnel, and
records.  These requirements are not inconsistent with the plain language
of Title X.  Petitioners contend, however, that they are based on an
impermissible construction of the statute because they frustrate the
clearly expressed intent of Congress that Title X programs be an integral
part of a broader, comprehensive, health-care system.  They argue that this
integration is impermissibly burdened because the efficient use of
non-Title X funds by Title X grantees will be adversely affected by the
regulations.
    The Secretary defends the separation requirements of MDRV 59.9 on the
grounds that they are necessary to assure that Title X grantees apply
federal funds only to federally authorized purposes and that grantees avoid
creating the appearance that the government is supporting abortion-related
activities.  The program integrity regulations were promulgated in direct
response to the observations in the GAO and OIG reports that "[b]ecause the
distinction between the recipient's title X and other activities may not be
easily recognized, the public can get the impression that Federal funds are
being improperly used for abortion activities."  App. 85.  The Secretary
concluded that:

"[M]eeting the requirement of section 1008 mandates that Title X programs
be organized so that they are physically and financially separate from
other activities which are prohibited from inclusion in a Title X program.
Having a program that is separate from such activities is a necessary
predicate to any determination that abortion is not being included as a
method of family planning in the Title X program."  53 Fed. Reg. 2940
(1988).


The Secretary further argues that the separation requirements do not
represent a deviation from past policy because the agency has consistently
taken the position that MDRV 1008 requires some degree of physical and
financial separation between Title X projects and abortion-related
activities.
    We agree that the program integrity requirements are based on a
permissible construction of the statute and are not inconsistent with
Congressional intent.  As noted, the legislative history is clear about
very little, and program integrity is no exception.  The statements relied
upon by the petitioners to infer such an intent are highly generalized, and
do not directly address the scope of MDRV 1008.
    For example, the cornerstone of the conclusion that in Title X Congress
intended a comprehensive, integrated system of family planning services is
the statement in the statute requiring state health authorities applying
for Title X funds to submit "a state plan for a coordinated and
comprehensive program of family planning services."  MDRV 1002.  This
statement is, on its face, ambiguous as to Congress' intent in enacting
Title X and the prohibition of MDRV 1008.  Placed in context, the statement
merely requires that a State health authority submit a plan for a
"coordinated and comprehensive program of family planning services" in
order to be eligible for Title X funds.  By its own terms, the language
evinces Congress' intent to place a duty on state entities seeking federal
funds; it does not speak either to an overall view of family planning
services or to the Secretary's responsibility for implementing the statute.
Likewise, the statement in the original House Report on Title X that the
Act was "not intended to interfere with or limit programs conducted in
accordance with State or local laws" and supported through non-Title X
funds is equally unclear.  H. R. Conf. Rep. No. 91-1667, pp. 8 -- 9 (1970).
This language directly follows the statement that it is the "intent of both
Houses that the funds authorized under this legislation be used only to
support preventive family planning services . . . . The conferees have
adopted the language contained in section 1008, which prohibits the use of
such funds for abortion, in order to make this intent clear." Id., at 8.
When placed in context and read in light of the express prohibition of MDRV
1008, the statements fall short of evidencing a congressional intent that
would render the Secretary's interpretation of the statute impermissible.
    While the petitioners' interpretation of the legislative history may be
a permissible one, it is by no means the only one, and it is certainly not
the one found by the Secretary.  It is well established that legislative
history which does not demonstrate a clear and certain congressional intent
cannot form the basis for enjoining the regulations.  See Motor Vehicle
Mfrs., 463 U. S., at 42.  The Secretary based the need for the separation
requirements "squarely on the congressional intent that abortion not be a
part of a Title X funded program."  52 Fed. Reg. 33212 (1987).  Indeed, if
one thing is clear from the legislative history, it is that Congress
intended that Title X funds be kept separate and distinct from
abortion-related activities.  It is undisputed that Title X was intended to
provide primarily prepregnancy preventive services.  Certainly the
Secretary's interpretation of the statute that separate facilities are
necessary, especially in light of the express prohibition of MDRV 1008,
cannot be judged unreasonable.  Accordingly, we defer to the Secretary's
reasoned determination that the program integrity requirements are
necessary to implement the prohibition.
    Petitioners also contend that the regulations must be invalidated
because they raise serious questions of constitutional law.  They rely on
Edward J. Debartolo Corp. v. Florida Gulf Coast Building and Construction
Trades Council, 485 U. S. 568 (1988), and NLRB v. Catholic Bishop of
Chicago, 440 U. S. 490 (1979), which hold that "an Act of Congress ought
not to be construed to violate the Constitution if any other possible
construction remains available.  Id., at 5.  Under this canon of statutory
construction, "[t]he elementary rule is that every reasonable construction
must be resorted to in order to save a statute from unconstitutionality."
Debartolo Corp., supra, at 575 (emphasis added) quoting Hooper v.
California, 155 U. S. 648, 657 (1895)).
    The principle enunciated in Hooper v. California, supra, and subsequent
cases, is a categorical one: "as between two possible interpretations of a
statute, by one of which it would be unconstitutional and by the other
valid, our plain duty is to adopt that which will save the Act."  Blodgett
v. Holden, 275 U. S. 142, 148 (1927) (opinion of Holmes, J.).  This
principle is based at least in part on the fact that a decision to declare
an act of Congress unconstitutional "is the gravest and most delicate duty
that this Court is called on to perform."  Id.  Following Hooper, supra,
cases such as United States v. Delaware and Hudson Co., 213 U. S. 366, 408,
and United States v. Jin Fuey Moy, 241 U. S. 394, 401, developed the
corollary doctrine that "[a] statute must be construed, if fairly possible,
so as to avoid not only the conclusion that it is unconstitutional but also
grave doubts upon that score."  Jin Fuey Moy, supra, at 401.  This canon is
followed out of respect for Congress, which we assume legislates in the
light of constitutional limitations.  FTC v. American Tobacco Co., 264 U.
S. 298, 305-307 (1924).  It is qualified by the proposition that "avoidance
of a difficulty will not be pressed to the point of disingenuous evasion."
Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933).
    Here Congress forbade the use of appropriated funds in programs where
abortion is a method of family planning.  It authorized the Secretary to
promulgate regulations implementing this provision.  The extensive
litigation regarding governmental restrictions on abortion since our
decision in Roe v. Wade, 410 U. S. 113 (1973), suggests that it was likely
that any set of regulations promulgated by the Secretary -- other than the
ones in force prior to 1988 and found by him to be relatively toothless and
ineffectual -- would be challenged on constitutional grounds.  While we do
not think that the constitutional arguments made by petitioners in this
case are without some force, in Part III, infra, we hold that they do not
carry the day.  Applying the canon of construction under discussion as best
we can, we hold that the regulations promulgated by the Secretary do not
raise the sort of "grave and doubtful constitutional questions," Delaware
and Hudson Co., supra, at 408, that would lead us to assume Congress did
not intend to authorize their issuance.  Therefore, we need not invalidate
the regulations in order to save the statute from unconstitutionality.
III
    Petitioners contend that the regulations violate the First Amendment by
impermissibly discriminating based on viewpoint because they prohibit "all
discussion about abortion as a lawful option -- including counseling,
referral, and the provision of neutral and accurate information about
ending a pregnancy -- while compelling the clinic or counselor to provide
information that promotes continuing a pregnancy to term."  Brief for
Petitioners in No. 89-1391, p. 11.  They assert that the regulations
violate the "free speech rights of private health care organizations that
receive Title X funds, of their staff, and of their patients" by
impermissibly imposing "viewpoint-discriminatory conditions on government
subsidies" and thus penaliz[e] speech funded with non-Title X monies."
Id., at 13, 14, 24.  Because "Title X continues to fund speech ancillary to
pregnancy testing in a manner that is not evenhanded with respect to views
and information about abortion, it invidiously discriminates on the basis
of viewpoint."  Id., at 18.  Relying on Regan v. Taxation With
Representation of Wash., and Arkansas Writers Project, Inc. v. Ragland, 481
U. S. 221, 234 (1987), petitioners also assert that while the Government
may place certain conditions on the receipt of federal subsidies, it may
not "discriminate invidiously in its subsidies in such a way as to `ai[m]
at the suppression of dangerous ideas.' "  Regan, supra, at 548 (quoting
Cammarano v. United States, 358 U. S. 498, 513 (1959)).
    There is no question but that the statutory prohibition contained in
MDRV 1008 is constitutional.  In Maher v. Roe, supra, we upheld a state
welfare regulation under which Medicaid recipients received payments for
services related to childbirth, but not for nontherapeutic abortions.  The
Court rejected the claim that this unequal subsidization worked a violation
of the Constitution.  We held that the government may "make a value
judgment favoring childbirth over abortion, and . . . implement that
judgment by the allocation of public funds."  Id., at 474.  Here the
Government is exercising the authority it possesses under Maher and McRae
to subsidize family planning services which will lead to conception and
child birth, and declining to "promote or encourage abortion."  The
Government can, without violating the Constitution, selectively fund a
program to encourage certain activities it believes to be in the public
interest, without at the same time funding an alternate program which seeks
to deal with the problem in another way.  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 the other.  "[A] legislature's decision
not to subsidize the exercise of a fundamental right does not infringe the
right."  Regan, supra, at 549.  See also, Buckley v. Valeo, 424 U. S. 1
(1976); Cammarano v. United States, supra.  "A refusal to fund protected
activity, without more, cannot be equated with the imposition of a
`penalty' on that activity."  McRae, 448 U. S., at 317, n. 19.  "There is a
basic difference between direct state interference with a protected
activity and state encouragement of an alternative activity consonant with
legislative policy."  Maher, 432 U. S., at 475.
    The challenged regulations implement the statutory prohibition by
prohibiting counseling, referral, and the provision of information
regarding abortion as a method of family planning.  They are designed to
ensure that the limits of the federal program are observed.  The Title X
program is designed not for prenatal care, but to encourage family
planning.  A doctor who wished to offer prenatal care to a project patient
who became pregnant could properly be prohibited from doing so because such
service is outside the scope of the federally funded program.  The
regulations prohibiting abortion counseling and referral are of the same
ilk; "no funds appropriated for the project may be used in programs where
abortion is a method of family planning," and a doctor employed by the
project may be prohibited in the course of his project duties from
counseling abortion or referring for abortion.  This is not a case of the
Government "suppressing a dangerous idea," but of a prohibition on a
project grantee or its employees from engaging in activities outside of its
scope.
    To hold that the Government unconstitutionally discriminates on the
basis of viewpoint when it chooses to fund a program dedicated to advance
certain permissible goals, because the program in advancing those goals
necessarily discourages alternate goals, would render numerous government
programs constitutionally suspect.  When Congress established a National
Endowment for Democracy to encourage other countries to adopt democratic
principles, 22 U. S. C. MDRV 4411(b), it was not constitutionally required
to fund a program to encourage competing lines of political philosophy such
as Communism and Fascism.  Petitioners' assertions ultimately boil down to
the position that if the government chooses to subsidize one protected
right, it must subsidize analogous counterpart rights.  But the Court has
soundly rejected that proposition.  Regan v. Taxation With Representation
of Wash., supra; Maher v. Roe, supra; Harris v. McRae, supra.  Within far
broader limits than petitioners are willing to concede, when the government
appropriates public funds to establish a program it is entitled to define
the limits of that program.
    We believe that petitioners' reliance upon our decision in Arkansas
Writers Project, supra, is misplaced.  That case involved a state sales tax
which discriminated between magazines on the basis of their content.
Relying on this fact, and on the fact that the tax "targets a small group
within the press," contrary to our decision in Minneapolis Star & Tribune
Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 (1983), the Court held
the tax invalid.  But we have here not the case of a general law singling
out a disfavored group on the basis of speech content, but a case of the
Government refusing to fund activities, including speech, which are
specifically excluded from the scope of the project funded.
    Petitioners rely heavily on their claim that the regulations would not,
in the circumstance of a medical emergency, permit a Title X project to
refer a woman whose pregnancy places her life in imminent peril to a
provider of abortions or abortion-related services.  This case, of course,
involves only a facial challenge to the regulations, and we do not have
before us any application by the Secretary to a specific fact situation.
On their face, we do not read the regulations to bar abortion referral or
counseling in such circumstances.  Abortion counseling as a "method of
family planning" is prohibited, and it does not seem that a medically
necessitated abortion in such circumstances would be the equivalent of its
use as a "method of family planning."  Neither MDRV 1008 nor the specific
restrictions of the regulations would apply.  Moreover, the regulations
themselves contemplate that a Title X project would be permitted to engage
in otherwise prohibited abortion-related activity in such circumstances.
Section 59.8(a)(2) provides a specific exemption for emergency care and
requires Title X recipients "to refer the client immediately to an
appropriate provider of emergency medical services."  42 CFR 59.8(a)(2)
(1989).  Section 59.5(b)(1) also requires Title X projects to provide
"necessary referral to other medical facilities when medically indicated."
{4}
    Petitioners also contend that the restrictions on the subsidization of
abortion-related speech contained in the regulations are impermissible
because they condition the receipt of a benefit, in this case Title X
funding, on the relinquishment of a constitutional right, the right to
engage in abortion advocacy and counseling.  Relying on Perry v.
Sindermann, 408 U. S. 593, 597 (1972), and FCC v. League of Women Voters of
Cal. 468 U. S. 364 (1984), petitioners argue that "even though the
government may deny [a] . . . 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."
Perry, supra, at 597.
    Petitioners' reliance on these cases is unavailing, however, because
here the government is not denying a benefit to anyone, but is instead
simply insisting that public funds be spent for the purposes for which they
were authorized.  The Secretary's regulations do not force the Title X
grantee to give up abortion-related speech; they merely require that the
grantee keep such activities separate and distinct from Title X activities.
Title X expressly distinguishes between a Title X grantee and a Title X
project.  The grantee, which normally is a health care organization, may
receive funds from a variety of sources for a variety of purposes.  Brief
for Petitioners in No. 89-1391, pp. 3, n. 5, 13.  The grantee receives
Title X funds, however, for the specific and limited purpose of
establishing and operating a Title X project.  42 U. S. C. MDRV 300(a).
The regulations govern the scope of the Title X project's activities, and
leave the grantee unfettered in its other activities.  The Title X grantee
can continue to perform abortions, provide abortion-related services, and
engage in abortion advocacy; it simply is required to conduct those
activities through programs that are separate and independent from the
project that receives Title X funds.  42 CFR 59.9 (1989).
    In contrast, our "unconstitutional conditions" cases involve situations
in which the government has placed a condition on the recipient of the
subsidy rather that on a particular program or service, thus effectively
prohibiting the recipient from engaging in the protected conduct outside
the scope of the federally funded program.  In FCC v. League of Women
Voters of Cal., we invalidated a federal law providing that noncommercial
television and radio stations that receive federal grants may not "engage
in editorializing."  Under that law, a recipient of federal funds was
"barred absolutely from all editorializing" because it "is not able to
segregate its activities according to the source of its funding" and thus
"has no way of limiting the use of its federal funds to all
noneditorializing activities."  The effect of the law was that "a
noncommercial educational station that receives only 1% of its overall
income from [federal] grants is barred absolutely from all editorializing"
and "barred from using even wholly private funds to finance its editorial
activity."  468 U. S., at 400.  We expressly recognized, however, that were
Congress to permit the recipient stations to "establish `affiliate'
organizations which could then use the station's facilities to editorialize
with nonfederal funds, such a statutory mechanism would plainly be valid."
Ibid.  Such a scheme would permit the station "to make known its views on
matters of public importance through its nonfederally funded,
editorializing affiliate without losing federal grants for its non
editorializing broadcast activities."  Ibid.
    Similarly, in Regan we held that Congress could, in the exercise of its
spending power, reasonably refuse to subsidize the lobbying activities of
tax-exempt charitable organizations by prohibiting such organizations from
using tax-deductible contributions to support their lobbying efforts.  In
so holding, we explained that such organizations remained free "to receive
deductible contributions to support . . . nonlobbying activit[ies]."  461
U. S., at 545.  Thus, a charitable organization could create, under MDRV
501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. MDRV 501(c)(3),
an affiliate to conduct its nonlobbying activities using tax-deductible
contribu tions, and at the same time establish, under MDRV 501(c)(4), a
separate affiliate to pursue its lobbying efforts without such
contributions.  Regan, supra, at 544.  Given that alternative, the Court
concluded that "Congress has not infringed any First Amendment rights or
regulated any First Amendment activity[; it] has simply chosen not to pay
for [appellee's] lobbying."  Id., at 546.  We also noted that appellee
"would, of course, have to ensure that the MDRV 501(c)(3) organization did
not subsidize the MDRV 501(c)(4) organization; otherwise, public funds
might be spent on an activity Congress chose not to subsidize."  Ibid.  The
condition that federal funds will be used only to further the purposes of a
grant does not violate constitutional rights.  "Congress could, for
example, grant funds to an organization dedicated to combating teenage drug
abuse, but condition the grant by providing that none of the money received
from Congress should be used to lobby state legislatures."  See id., at
548.
    By requiring that the Title X grantee engage in abortionrelated
activity separately from activity receiving federal funding, Congress has,
consistent with our teachings in League of Women Voters and Regan, not
denied it the right to engage in abortion-related activities.  Congress has
merely refused to fund such activities out of the public fisc, and the
Secretary has simply required a certain degree of separation from the Title
X project in order to ensure the integrity of the federally funded
program.
    The same principles apply to petitioners' claim that the regulations
abridge the free speech rights of the grantee's staff.  Individuals who are
voluntarily employed for a Title X project must perform their duties in
accordance with the regulation's restrictions on abortion counseling and
referral.  The employees remain free, however, to pursue abortionrelated
activities when they are not acting under the auspices of the Title X
project.  The regulations, which govern solely the scope of the Title X
project's activities, do not in any way restrict the activities of those
persons acting as private individuals.  The employees' freedom of
expression is limited during the time that they actually work for the
project; but this limitation is a consequence of their decision to accept
employment in a project, the scope of which is permissibly restricted by
the funding authority. {5}
    This is not to suggest that funding by the Government, even when
coupled with the freedom of the fund recipients to speak outside the scope
of the Government-funded project, is invariably sufficient to justify
government control over the content of expression.  For example, this Court
has recognized that the existence of a Government "subsidy," in the form of
Government-owned property, does not justify the restriction of speech in
areas that have "been traditionally open to the public for expressive
activity," United States v. Kokinda, 110 S. Ct. 3115, 3119 (1990); Hague v.
CIO, 307 U. S. 496, 515 (1939)(opinion of Roberts, J.), or have been
"expressly dedicated to speech activity."  Kokinda, supra, 110 S. Ct., at
3119; Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37,
45 (1983).  Similarly, we have recognized that the university is a
traditional sphere of free expression so fundamental to the functioning of
our society that the Government's ability to control speech within that
sphere by means of conditions attached to the expenditure of Government
funds is restricted by the vagueness and overbreadth doctrines of the First
Amendment, Keyishian v. Board of Regents, 385 U. S. 589, 603, 605-606
(1967).  It could be argued by analogy that traditional relationships such
as that between doctor and patient should enjoy protection under the First
Amendment from government regulation, even when subsidized by the
Government.  We need not resolve that question here, however, because the
Title X program regulations do not significantly impinge upon the
doctor-patient relationship.  Nothing in them requires a doctor to
represent as his own any opinion that he does not in fact hold.  Nor is the
doctor-patient relationship established by the Title X program sufficiently
all-encompassing so as to justify an expectation on the part of the patient
of comprehensive medical advice.  The program does not provide
postconception medical care, and therefore a doctor's silence with regard
to abortion cannot reasonably be thought to mislead a client into thinking
that the doctor does not consider abortion an appropriate option for her.
The doctor is always free to make clear that advice regarding abortion is
simply beyond the scope of the program.  In these circumstances, the
general rule that the Government may choose not to subsidize speech applies
with full force.

IV
    We turn now to petitioners' argument that the regulations violate a
woman's Fifth Amendment right to choose whether to terminate her pregnancy.
We recently reaffirmed the long-recognized principle that " `the Due
Process Clauses generally confer no affirmative right to governmental aid,
even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.' "
Webster, 492 U. S., at ---, quoting DeShaney v. Winnebago County Dept. of
Social Services, 489 U. S. 189, 196 (1989).  The Government has no
constitutional duty to subsidize an activity merely because the activity is
constitutionally protected and may validly choose to fund childbirth over
abortion and " `implement that judgment by the allocation of public funds'
" for medical services relating to childbirth but not to those relating to
abortion.  Webster, supra, at ---, (citation ommitted).  The Government has
no affirmative duty to "commit any resources to facilitating abortions,"
Webster, 492 U. S., at ---, and its decision to fund childbirth but not
abortion "places no governmental obstacle in the path of a woman who
chooses to terminate her pregnancy, but rather, by means of unequal
subsidization of abortion and other medical services, encourages
alternative activity deemed in the public interest."  McRae, 448 U. S., at
315.
    That the regulations do not impermissibly burden a woman's Fifth
Amendment rights is evident from the line of cases beginning with Maher and
McRae and culminating in our most recent decision in Webster.  Just as
Congress' refusal to fund abortions in McRae left "an indigent woman with
at least the same range of choice in deciding whether to obtain a medically
necessary abortion as she would have had if Congress had chosen to
subsidize no health care costs at all," 448 U. S., at 317, and "Missouri's
refusal to allow public employees to perform abortions in public hospitals
leaves a pregnant woman with the same choices as if the State had chosen
not to operate any public hospitals," Webster, supra, at ---, Congress'
refusal to fund abortion counseling and advocacy leaves a pregnant woman
with the same choices as if the government had chosen not to fund
family-planning services at all.  The 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.
    In Webster we stated that "[h]aving held that the State's refusal [in
Maher] to fund abortions does not violate Roe v. Wade, it strains logic to
reach a contrary result for the use of public facilities and employees."
492 U. S., at ---.  It similarly would strain logic, in light of the more
extreme restrictions in those cases, to find that the mere decision to
exclude abortion-related services from a federally funded pre-conceptual
family planning program, is unconstitutional.
    Petitioners also argue that by impermissibly infringing on the
doctor/patient relationship and depriving a Title X client of information
concerning abortion as a method of family planning, the regulations violate
a woman's Fifth Amendment right to medical self-determination and to make
informed medical decisions free of government-imposed harm. They argue that
under our decisions in Akron v. Akron Center for Reproductive Health, Inc.,
462 U. S. 416 (1983), and Thornburg v. American College of Obstetricians
and Gynecologists, 476 U. S. 747 (1986), the government cannot interfere
with a woman's right to make an informed and voluntary choice by placing
restrictions on the patient/doctor dialogue.
    In Akron, we invalidated a city ordinance requiring all physicians to
make specified statements to the patient prior to performing an abortion in
order to ensure that the woman's consent was "truly informed."  462 U. S.,
at 423.  Similarly, in Thornburg, we struck down a state statute mandating
that a list of agencies offering alternatives to abortion and a description
of fetal development be provided to every women considering terminating her
pregnancy through an abortion.  Critical to our decisions in Akron and
Thornburg to invalidate a governmental intrusion into the patient/doctor
dialogue was the fact that the laws in both cases required all doctors
within their respective jurisdictions to provide all pregnant patients
contemplating an abortion a litany of information, regardless of whether
the patient sought the information or whether the doctor thought the
information necessary to the patient's decision.  Under the Secretary's
regulations, however, a doctor's ability to provide, and a woman's right to
receive, information concerning abortion and abortion-related services
outside the context of the Title X project remains unfettered.  It would
undoubtedly be easier for a woman seeking an abortion if she could receive
information about abortion from a Title X project, but the Constitution
does not require that the Government distort the scope of its mandated
program in order to provide that information.
    Petitioners contend, however, that most Title X clients are effectively
precluded by indigency and poverty from seeing a health care provider who
will provide abortion-related services.  But once again, even these Title X
clients are in no worse position than if Congress had never enacted Title
X.  "The financial constraints that restrict an indigent woman's ability to
enjoy the full range of constitutionally protected freedom of choice are
the product not of governmental restrictions on access to abortion, but
rather of her indigency."  McRae, supra, at 316.
    The Secretary's regulations are a permissible construction of Title X
and do not violate either the First or Fifth Amendments to the
Constitution.  Accordingly, the judgment of the Court of Appeals is

Affirmed.







------------------------------------------------------------------------------
1
    Both the First Circuit and the Tenth Circuit have invalidated the
regulations, primarily 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).

2
    "Most clients of title X-sponsored clinics are not pregnant and
generally receive only physical examinations, education on contraceptive
methods, and services related to birth control."  General Accounting Office
Report, App. at 95.

3
    For instance, the Secretary relies on the following passage of the
House Report as evidence that the regulations are consistent with
legislative intent:

    "It is, and has been, the intent of both Houses that the funds
authorized under this legislation be used only to support preventive family
planning services, population research, infertility services, and other
related medical, informational, and educational activities.  The conferees
have adopted the language contained in section 1008, which prohibits the
use of such funds for abortion, in order to make this intent clear."  H. R.
Conf. Rep. No. 91-1667, p. 8 (1970).

Petitioners, however, point to language in the statement of purpose in the
House Report preceding the passage of Title X stressing the importance of
supplying both family planning information and a full range of family
planning information and of developing a comprehensive and coordinated
program.  Petitioners also rely on the Senate Report, which states:

"The committee does not view family planning as merely a euphemism for
birth control.  It is properly a part of comprehensive health care and
should consist of much more than the dispensation of contraceptive devices.
. . . [A] successful family planning program must contain . . . [m]edical
services, including consultation examination, prescription, and continuing
supervision, supplies, instruction, and referral to other medical services
as needed."  S. Rep. No. 91-1004, p. 10 (1970).

These directly conflicting statements of legislative intent demonstrate
amply the inadequacies of the "traditional tools of statutory
construction," Cardoza-Fonseca, 480 U. S., at 446-447, in resolving the
issue before us.

4
    We also find that, on their face, the regulations are narrowly tailored
to fit Congress' intent in Title X that federal funds not be used to
"promote or advocate" abortion as a "method of family planning."  The
regulations are designed to ensure compliance with the prohibition of MDRV
1008 that none of the funds appropriated under Title X be used in a program
where abortion is a method of family planning.  We have recognized that
Congress' power to allocate funds for public purposes includes an ancillary
power to ensure that those funds are properly applied to the prescribed
use.  See South Dakota v. Dole, 483 U. S. 203, 207-209 (1987) (upholding
against Tenth Amendment challenge requirement that States raise drinking
age as condition to receipt of federal highway funds); Buckley v. Valeo,
424 U. S. 1, 99 (1976).

5
    Petitioners also contend that the regulations violate the First
Amendment by penalizing speech funded with non-Title X monies.  They argue
that since Title X requires that grant recipients contribute to the
financing of Title X projects through the use of matching funds and
grant-related income, the regulation's restrictions on abortion counseling
and advocacy penalize privately funded speech.
    We find this argument flawed for several reasons.  First, Title X
subsidies are just that, subsidies.  The recipient is in no way compelled
to operate a Title X project; to avoid the force of the regulations, it can
simply decline the subsidy.  See Grove City College v. Bell, 465 U. S. 555,
575 (1984) (petitioner's First Amendment rights not violated because it
"may terminate its participation in the [federal] program and thus avoid
the requirements of [the federal program]").  By accepting Title X funds, a
recipient voluntarily consents to any restrictions placed on any matching
funds or grant-related income.  Potential grant recipients can choose
between accepting Title X funds -- subject to the Government's conditions
that they provide matching funds and forgo abortion counseling and referral
in the Title X project -- or declining the subsidy and financing their own
unsubsidized program.  We have never held that the Government violates the
First Amendment simply by offering that choice.  Second, the Secretary's
regulations apply only to Title X programs.  A recipient is therefore able
to "limi[t] the use of its federal funds to [Title X] activities."  FCC v.
League of Women Voters of Cal., 468 U. S. 364, at 400 (1984).  It is in no
way "barred from using even wholly private funds to finance" its
pro-abortion activities outside the Title X program.  Ibid.  The
regulations are limited to Title X funds; the recipient remains free to use
private, non-Title X funds to finance abortion-related activities.