Rust v. Sullivan

RUST et al. v. SULLIVAN, OF HEALTH SECRETARY

AND HUMAN SERVICES Argued May 23, No. 89-1391. October 1990 Decided 1991* Sullivan, *Together 89-1392, with et Secretary New York al. v. No. Services, Health and Human also certiorari to the same court. Court, White, opinion Rehnquist, J., in which C. delivered JJ., Blackmun, J., Kennedy, Souter, joined. filed a dis- Scalia, Marshall, J., joined, in Parts II and III opinion, in which senting O’Connor, J., Stevens, J., joined, joined, and in Part I of which which J., J., O’Connor, SteveNS, p. post, p. p. post, post, 203. dissenting opinions. filed argued petitioners in both H. Tribe cause

Laurence petitioners in 89-1391 him briefs for No. With on the cases. Pine, Sullivan, N. Janet Ben- M. Rachael were Kathleen Kathryn Shapiro, Lynn Paltrow, Kolbert, R. Steven shoof, Siegel, Eisenberg, Roger Evans, K. Laurie Arthur Norman Attorney Abrams, Rockett, Peter Rubin. Robert R. J. Sherwood, General, Peter York, O. Solicitor General of New Lynn Attor- Cohen, M. M. and Assistant Suzanne Sanford neys Koerner, Kovner, Leonard Lorna Victor A. J. General, Hillary Goodman, Rubin, filed and Weisman Bade Gail petitioners in 89-1392. for No. briefs argued a brief the cause and filed General Starr Solicitor respondent him were cases. With on the brief both for Deputy Attorney Gerson, Gen General Solicitor Assistant Anthony Steinmeyer, Jeffrey Roberts, Minear, P. J. eral † Mangel. Sturgill, Jr., and V. Joel Lowell †Briefs urging were filed for the Common amici curiae reversal of Cole, Shannon, At by D. James M. et al. David wealth of Massachusetts Massachusetts, Bourquin, Attor and Ruth A. Assistant torney of General Ohio, General; Celebrezze, Jr., Attorney of Anthony General ney for J. Rehnquist opinion Chief Justice delivered the of Court. challenge Department

These cases concern a facial of (HHS) regulations and Health Human Services limit which Celebrezze, se, by Decker, pro et al. Mr. E. Mohr Suzanne and Jack W. General, Attorneys Eppler, Douglas Baily, Assistant and Rita S. B. Attor- Alaska, ney Attorney of John K. de Kamp, General Van General Califor- Riddle, nia, Attorney Connecticut, Clarine Nardi General Charles M. III, Reid, Attorney Delaware, Sr., Oberly Corpora- General of Herbert O. Columbia, Tierney, Attorney tion for the District Counsel James E. III, Maine, Humphrey Attorney General Hubert H. General of Minne- sota, Nebraska, Spire, Attorney Tufo, Robert M. General of Robert J. Del Attorney Jersey, Frohnmayer, Attorney General New Dave General of Mattox, Texas, Oregon, Attorney Jim L. Jeffrey Amestoy, General of At- Vermont, Mary Terry, torney Attorney General of and Sue General of Vir- ginia; College Gynecologists by for American of Obstetricians and et al. Allen, Johnson, Rockett, Phillips, Carter G. Ann E. Kirk B. Laurie R. Klein, Bierig; Library Joel I. and R. for Jack the American et Association Ennis, Jr., by al. Ogden; Bruce J. and David W. for the American Public Sims, by Larry Lavinsky, et al. Health Association M. Charles S. Michele Taub; Ovesey, City M. and Nadine for the Association of the Bar of Goodman, by Wilner; K. Harper, New York Conrad Janice and Diane S. Fund, Inc., Legal for by the NAACP Defense and Educational et al. Julius Ralston; Stephen LeVonne Chambers and Charles for the National Associ- Lawyers by Fitzpatrick, O'Keeffe, Women Hope ation of et al. James F. L. Dellinger; and Walter for the Planned Parenthood Federation of America Klassel, Paid, by Often; Twenty- et al. Dara Eve W. and Barbara E. for Smith; by Two Biomedical Ethicists Michael E. Douglas Fine and W. and by Representative for Patricia et Schroeder al. David M. Becker. of amici urging Briefs curiae affirmance were filed for the American Knhl;

Academy by Carolyn of Medical Ethics B. for the Association Physicians by Forsythe Surgeons American Clarke D. Kent Broivn; by for Masterson Feminists Life of America et al. R. Edward Anderson; Grant; Knights by for the of Columbus Carl A. for The Ruther- Whitehead, Bundren, by ford Institute et al. Wm. A. Charles John W. Morris, Hurst, Johnston, Secóla, E. Stephen Joseph Eric David E. P. Heller, Strahan, Neuberger, Thomas S. J. Brian Thomas W. William Bonner, Crain, Larry Knicely; and James for the United States Catholic Harris; Chopko E. H. Phillip Conference Mark and for Senator Jr., Humphrey by Bopp, Gordon J. et al. James and Richard E. Coleson. Inc., of filed League, Briefs amici curiae were for the American Life Sassone; by by et al. Robert L. for Catholics for et al. United Life Thomas 178 recipients ability engage abortion- Title X fund Appeals for States

related activities. United Court regulations, upheld finding to be them Circuit Second permissible consistent of the statute as as construction well and Fifth Amendments to the Constitution. with the First split among granted the Courts certiorari to resolve a We Appeals.1 We affirm.

I A X of the Public Health enacted Title (Act), amended, as U. S. C. Act 84 Stat. Service family- funding §§300 provides which federal 300a-6, Secretary planning authorizes the services. The Act public grants or non- enter into contracts “make to and with oper- profit private in the establishment and entities assist family voluntary planning projects which shall offer a ation of family planning range acceptable meth- and effective broad 300(a). § contracts under Grants and ods and services.” with such as Title X must “be made accordance §300a-4(a). Secretary may promulgate.” Section provides ap- “[n]one of the funds Act, however, programs propriated subchapter shall be used in under this family planning.” 42 U. S. C. is a method where abortion was to ensure that Title 300a-6. That restriction intended family support preventive only X funds “be used would Seknloiv, Weber, M. Thomas A. Monaghan, Jay Alan Walter Patrick Glessner, Rice, Laird; Legal De- Michael J. for the NOW Charles E. Bums, Hall, by et H. Sarah E. Education Fund al. John fense and Wetherfield; Right to Life Inc. and for the National Committee Alison Jr., Bopp, Richard E. Coleson. et al. James regu and the Tenth Circuit have invalidated the the First Circuit Both lations, primarily grounds. See Massachusetts v. Secre on constitutional (CA1 1990); Services, tary F. 2d 53 Planned Health and Human (CA10 Sullivan, F. 2d Federation America Parenthood 1990). infertility planning population services, services, research, medical, and other related and educational informational, ac- (1970). Rep. p. 91-1667, H. R. Conf. tivities.” No. Secretary regulations promulgated new de- “ provide guidance’ grant- signed operational ‘clear and preserve about how to between Title ees the distinction programs family planning.” X and abortion as a method (1988). Reg. regulations clarify, 53 Fed. 2923-2924 The through “family planning,” definition the term only support Title X intended funds “to used preventive family planning Rep. R.H. Conf. services.” added). (emphasis p. Accordingly, 91-1667, No. Title X “preconeeptional counseling, services are limited to educa- general reproductive expressly tion, care,” and health and “pregnancy (including prenatal care exclude care).” obstetric or (1989).2 §59.2 regulations

42 CFR The “focus the emphasis program X of the Title omits traditional mission: provision preventive family planning specifi- The services cally designed to enable individuals to determine the number spacing clarifying pregnant children, their while prenatal appropriate must be care women referred serv- Reg. 53 Fed. ices.” principal attach three conditions on the

grant projects. regula- First, of federal for Title X funds specify project may provide X tions ing concerning that a “Title counsel- family plan-

the use of abortion as a method of ning provide family or referral abortion as method of 59.8(a)(1) (1989). § planning.” 42 CFR Because Title X preconeeptional program is limited to services, the does not Only in furnish services related to childbirth. the con- program pregnant of a X text referral out Title is a 59.8(a)(2). given woman transitional information. Title X-sponsored pregnant gener “Most clients of title clinics are not examinations, ally only physical contraceptive receive education meth ods, Accounting birth services related to control.” General OfficeRe port, App. 95. every appropriate

projects pregnant “for client must refer prenatal by furnishing list available and/or social services providers promote the welfare of mother and unborn indirectly may not be used to encour- child.” Ibid. list by weighing age promote of re- as the list abortion, “such providers perform which health care abor- ferrals favor of providers by including health care tions, on the list referral provision providers principal is the' of abor- whose business excluding providers provide by who do tions, available providers by ‘steering’ offer abor- clients who abortions, or 59.8(a)(3). § family planning.” Title a tion as method referring pregnant expressly prohibited project a X from is upon specific request. provider, even woman an abortion permissible response inquiry is that “the to such an One appropriate project an not consider abortion method does family planning not counsel or refer for and therefore does ” 59.8(b)(5). abortion. broadly prohibit regulations project a Title X

Second, the “encourage, promote engaging in or advo- from activities §59.10(a). family planning.” as a method of cate abortion lobbying legislation that include for Forbidden activities availability a method of would of abortion as increase family disseminating planning, developing materials ad- family providing vocating planning, as a method of abortion family planning, speakers promote a abortion as method way any using legal a to make abortion as action available family any group planning, paying and method of dues family planning as a method of as sub- advocates abortion part Ibid. stantial of its activities. projects regulations require X be or-

Third, that Title they financially separate” “physically ganized and so that §59.9. prohibited activities. To be deemed from abortion financially project separate, physically “a X must Title independence prohibited objective integrity and from have an separation bookkeeping of Title X funds activities. Mere regulations is not sufficient.” Ibid. The from other-monies Secretary provide for the to con- a list of nonexclusive factors conducting case-by-case objective determination of sider independence, separate integrity and such as the existence of accounting separate personnel, degree records and and the physical separation project prohib- facilities of the from Ibid. ited activities.

B grantees supervise are Title and doctors who Petitioners suing pa- XTitle funds on behalf of themselves and their Secretary Respondent After the tients. HHS. they regulations promulgated, before had had been but been petitioners separate applied, actions, filed two later consoli- challenging validity dated, the facial declaratory injunctive prevent imple- seeking relief to regulations. challenged Petitioners mentation regulations they grounds that were not on the authorized they X violate the First and Fifth Amendment Title and that rights rights of Title X clients and the First Amendment initially providers. granting petitioners Title X health After rejected petition- preliminary injunction, the District Court statutory challenges regulations ers’ and constitutional to the summary Secretary. granted judgment in favor of 1988). (SDNY Supp. Bowen, New York v. 690 F. panel Appeals A for the af- of the Court of Second Circuit (1989). Applying firmed. 889 F. 2d this Court’s deci- A. sion in Inc. v. Natural Resources Chevron U. S. Defense (1984), Council, Inc., 842-843 the Court of Appeals regulations permissible determined that the were a legitimately statute that construction of the effectuated con- rejected gressional “highly strained,” intent. The court as plain petitioners’ language contention that the of 1008 for- projects only performing X bids Title from abortions. The wholly court that “it would be anomalous to read reasoned merely program mean that a Section 1008 to counsels perform but does not abortions does not include abortion as ” family planning.’ “[T]he 2d, 889 F. at 407. nat- ‘method of family planning’ of. . the term ‘method construction . ural concerning counseling Ibid. court abortion.” includes history legislative with the construction consistent found this legisla- “[appellants’ contrary view of the observed that entirely highly generalized history state- is based tive planning scope family expansive serv- ments about concerning counseling specifically mention that “do not ices” projects” and that of Title as an intended service abortion “surely trump statute that a section cannot be read specifically it.” at 407-408. Id., excludes challenges

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

The court likewise found counseling, Congress’s not to fund decision abortion tion of Supreme applicable advocacy not, under also does referral precedent, of the First constitute facial violation Court providers rights or of women.” of health care Amendment Regan explained court that under 2d, F. at 412. The (1983), Representation Wash., 461 U. S. 540 with Taxation obligation to subsidize even the exer- has no the Government rights.” including “speech rights, of fundamental cise regulations the First do not violate held that the court also “condition[ing] receipt by of a benefit Amendment relinquishment rights" of constitutional because Title X grantees employees say and their "remain free to whatever they project." wish about abortion outside the Title X Finally, rejected petitioners' 2d, F. at 412. the court con- regulations "facially tention that the discriminate on the basis viewpoint speech Id., of the of the involved." at 414.

II begin by pointing posture We out the of the cases before challenging validity us. Petitioners are regulations. the facial only question Thus, we are concerned with the regulations whether, face, on their are both authorized by they the Act and can be construed in such a manner that applied infringing upon can be to a set of individuals without constitutionally protected rights. heavy Petitioners face a seeking regulations burden in to have the invalidated as fa- cially challenge legislative unconstitutional. "A facial to a challenge is, course, Act the most difficult to mount suc- cessfully, challenger since the must establish that no set of circumstances exists under which the Act would be valid. regulations] might operate [the The fact that unconstitution- ally under some conceivable set of circumstances is insuffi- wholly [them] cient to render invalid." United States v. Sa- lerno, petitioners' regulations

We turn first to contention that the Secretary's authority exceed the under Title X and are arbi- trary capricious. begin We with an examination of the regulations concerning counseling, referral, abortion and ad- vocacy, every Appeals which Court of has found to be author- "program integrity statute, ized requirement," and then turn to the respect

with to which the courts below have adopted conflicting positions. petitioners' We then address they claim that the must be struck down because question. raise a substantial constitutional A plain language of the statute be need not dwell on the We every agree court to have addressed the issue we with cause § language language ambiguous. 1008— is that the subchapter appropriated “[n]one under this of the funds programs fam abortion is a method of used where shall be speak directly ily planning” coun to the issues of —does seling, advocacy, program integrity. If a statute referral, specific ambiguous respect issue, to the “silent or with is agency’s question answer is the court is whether the permissible a construction of the statute.” Chev based 842-843. S., 467 U. at ron, may Secretary’s construction of Title X not be dis- plausible a if it reflects con-

turbed as an abuse discretion plain language of the of the statute and does not struction Congress’ expressed intent. Ibid. conflict with otherwise determining permissible, “[t]he is whether construction agency construction was the court need not conclude that adopted only permissibly ... or even the it could have one initially question reading if the court would have reached the judicial proceeding.” n. 11. Id., in a had arisen interpreta- deference is accorded to the Rather, substantial authorizing agency authorized with of the statute tion administering Id., it. at 844. plainly language Title X allows the Secre-

The broad § By tary’s terms, its own construction statute. programs prohibits of Title X funds “in where abor- the use family planning.” X Title does not define tion is a method of family planning,” nor does it enumerate the term “method counseling types services are entitled to what of medical provided by funding. on the directives Title X Based broad § particular, general X in and 1008in we are in Title prohi- say Secretary’s construction of the unable counseling, require referral, ban on in 1008to bition project impermissible. advocacy Title X within the The District Courts and of that have exam- Appeals Courts all least found, ined the have with re- legislative history Act’s gard referral, advocacy to the and counseling, provi- sions, is with legislative history that the ambiguous respect in intent Title X and Congress’ the enacting prohibition Secretary § 1008. Massachusetts Health and Human Services, (CA1 1990) F. 53, 2d 62 has not (“Congress addressed the of the of the abor- specifically question scope tion of the statute the prohibition. and language legisla- tive can of the history support positions”); either litigants’ Planned Parenthood Federation America Sullivan, (CA10 1990) (“[T]he F. 2d contemporaneous legis- lative does not address whether clinics history receiving Title X funds can in engage nondirective counseling including the (case below) 2d, abortion and 889 F. option referrals”); at 407 in legislative history the Title X detracts” (“Nothing from 1008). construction of We these Secretary’s join courts in that the holding history is and fails legislative ambiguous to shed relevant At light intent. no time congressional did directly address the issues of coun- abortion referral, or seling, advocacy. parties’ attempts to char- acterize in highly generalized, conflicting statements into legislative history accurate revelations of congressional intent are unavailing.3 instance, Secretary For on the following passage relies Report regulations legisla

House as evidence that the with consistent tive intent: been, is,

“It and has the intent of both Houses that the funds authorized legislation only support preventive family under planning this used research, services, services, infertility population related and other medi- informational, cal, adopted educational activities. The have conferees language prohibits in which contained section the use of such abortion, in intent R. Rep. funds for order to make this clear.” H. Conf. 91-1667, p. No. however, Petitioners, point purpose language the statement of Report importance preceding passage stressing House of Title family family plan- supplying planning range both information and a full legislative history here, we as we find, do When unenlightening respect ambiguous on the matters with customarily regulations deal, we defer to the ex- which the pertise argue, agency. however, Petitioners that the they little or deference because are entitled to no permitted agency policy longstanding nondi- “reverse counseling Peti- abortion,” Brief for referral rective sharp represent p. 20, 89-1392, tioners No. and thus Secretary’s prior the statute. from the construction of break interpre- agency’s prior argue that the consistent Petitioners §1008 permit counseling to to nondirective tation of encourage family planning local and state

coordination with weight. is services entitled substantial argument agency’s rejected the that in This Court has an repre terpretation it “is not entitled to deference because sharp prior interpretations” a with of the statute sents break question. in Chevron, S., Chevron, 467 U. at 862. we interpretation a revised deserves deference because held instantly agency interpretation “[a]n initial in is not carved engage rulemaking, agency, stone” and “the informed varying interpretations and the wisdom of its must consider policy continuing agency Id., An on a at 863-864. basis.” required forever,”’ rules of to “‘establish conduct last States, United Inc. v. Motor Vehicle Assn. State Mfrs. comprehensive developing pro- a ning information and of and coordinated rely Report, gram. also on the Senate which states: Petitioners family planning merely euphemism view “The committee does not as a properly part comprehensive birth control. It is a health care dispensation contraceptive consist much more than should family program . planning ... successful must contain . . [A] devices. examination, services, including prescription, and consultation [m]edical instruction, supervision, supplies, continuing and referral to other medical (1970). 91-1004, Rep. p. as S. No. 10 services needed.” directly conflicting legislative statements intent demonstrate These construction,” statutory amply inadequacies of the “traditional tools of Cardoza-Fonseca, 421, (1987), resolving 446-447 480 U. S. INS before us. issue

187 (1983), Farm Mut. Automobile Ins. Co., 29, 463 U. S. 42 quoting Trucking Assns., Atchison, American Inc. T. & (1967); Co., F. 397, S. R. NLRB v. Curtin (1990), Inc., Matheson Scientific, U. rather S. but given ample ‘adapt policies [its] “must be latitude to rules and changing to the demands of circumstances.’” Motor Vehicle supra, quoting Mfrs., Permian Basin Area Rate (1968). U. Cases, S. Secretary amply justified change

We find that the his interpretation analysis.” with a “reasoned Motor Vehicle supra, Secretary explained regu- Mfrs., at 42. The a determination, lations are result of his in the wake of the (GAO) reports Accounting critical of the General Office (OIG), Inspector policy prior the Office of the General implement properly failed to the statute and that it was nec- “ essary provide operational guidance’ grant- ‘clear and preserve ees about how to the distinction between Title X ” programs family planning. and abortion as method of Reg. Fed. 2923-2924 He also determined keeping original new are inmore with the intent justified by experience statute, client under the prior policy, supported by against and are shift attitude by the “elimination of unborn children abortion.” We be- justifications support lieve that these are sufficient to the Secretary’s Having approach. revised concluded that the plain language legislative history ambiguous and are as to Congress’ enacting in X, intent Title we must defer the permissible Secretary’s construction of the statute.

B “program integrity” requirements We turn next to the em- § regulations, mandating separate bodied 59.9 of the facili- personnel, requirements ties, and records. These are not in- plain language with consistent of Title X. Petitioners they impermissible contend, however, that are on an based they clearly construction statute because frustrate the programs expressed X in- Title be an intent of that system-. comprehensive, tegral part a health-care broader, impermissibly argue integration They is that this burdened by X of non-Title-X funds Title the efficient use because regulations. adversely grantees be affected will separation requirements Secretary defends the The necessary §59.9 they grounds that are to assure on the federally only grantees apply author- X federal funds Title creating appear- grantees purposes and that avoid ized supporting is abortion-related the Government ance promul- program integrity The were activities. gated response and to the observations the GAO direct reports “[b]ecause re- the distinction between OIG may easily recog- cipients’ X other activities not be title impression public get can that Federal funds nized, the being App. improperly 85. are for abortion activities.” used Secretary concluded:

“[MJeeting requirement of section 1008 mandates they programs organized X so that are that Title financially separate physically activities from other prohibited program. from X which are inclusion a Title program separate Having from such that is activities necessary any predicate determination that abortion family being planning in included as a method is not Reg. program.” the Title 53 Fed. require- Secretary argues separation further that the policy past represent from because do not a deviation

ments consistently position agency re- that 1008 has taken separation quires degree physical financial be- some projects activities. Title X and abortion-related tween requirements agree program integrity We permissible of the statute and are based on a construction legis- congressional noted, with intent. As inconsistent integrity history very program little, is clear lative about upon by petitioners exception. The relied is no statements highly generalized to infer such an intent are and do not di- rectly § scope address the of 1008. example,

For the Cornerstone of the in conclusionthat Title comprehensive, integrated system X intended a family planning services is the statement in the statute re- quiring applying state health authorities for Title X funds to plan comprehensive submit “a State for a coordinated and program family § planning services.” 1002. This state- ambiguous Congress’ is, ment face, its as to in intent § enacting prohibition XTitle and the of 1008. Placed con- merely requires text, the statement that a state health au- thority plan comprehensive submit a for a “coordinated and program family planning eligible services” order to be By language for XTitle funds. terms, its own evinces Congress’ place duty seeking intent to on state entities fed- speak eral funds; it does not either to an overall view of fam- ily planning Secretary’s responsibility services or to the implementing the statute. Likewise, the statement original Report House on Title that the Act was in- “not programs tended to interfere with or limit conducted in ac- supported through cordance with State or local laws” and equally Rep. non-Title X funds is unclear. H. R. Conf. pp. language directly 91-1667, No. 8-9 This follows the statement that it is the “intent of both Houses that the legislation only sup- funds authorized under this be used port preventive family planning services .... The conferees adopted language have contained in section which prohibits the use of such funds for abortion, in order to make placed Id., this intent clear.” at 8. When in context and light express prohibition read in of the of 1008, the state- evidencing congressional ments fall short of intent that Secretary’s interpretation would render the of the statute impermissible. petitioners’ interpretation legislative history

While may permissible by only be a one, it is no means the one, and certainly Secretary. it is not the one found It is well 190 legislative history not demon- which does that

established congressional intent cannot form a clear and certain strate regulations. enjoining Motor Vehicle See for the basis Secretary the need at 42. The based Mfrs., S., 463 U. congressional requirements “squarely separation on part pro- X of a Title funded not be intent gram.” abortion (cid:127) (1987). thing Reg. if Indeed, one 33212 52 Fed. history, Congress in- legislative it is that is clear from the separate kept from and distinct tended that Title funds be undisputed X was It that Title activities. is abortion-related prepregnancy preventive provide primarily serv- intended interpretation Secretary’s Certainly of the statute ices. necessary, light especially separate in facilities judged express prohibition 1008,cannot be unreasonable. Secretary’s Accordingly, reasoned defer to the deter- we integrity program requirements are neces- mination that the prohibition. sary implement the in- must be Petitioners also contend they questions of raise serious constitu- because validated They Corp. rely v. on Edward J. DeBartolo tional law. Building & Construction Trades Coun- Coast Florida Gulf (1988), Bishop NLRB Catholic 485 S. 568 v. cil, U. (1979), Chicago, “an Act of 490 which hold that U. S. ought Congress not be construed to violate the Constitution possible any Id., at if construction remains available.” other statutory “‘[t]he construction, ele- 500. Under this canon mentary every must be rule reasonable construction is to save a statute from unconstitutional- to, order resorted ity.’” added), (emphasis Corp., supra, DeBartolo Hooper quoting v. California, principle Hooper supra, California, enunciated categorical subsequent “as between two cases, is a one: interpretations by

possible statute, which it would of a one of duty plain our is to valid, the other be unconstitutional Blodgett adopt Holden, Act.” that which will save the J.). (1927) principle (opinion This Holmes, U. S. part at least based fact that decision to declare gravest an Act of “is the unconstitutional and most duty perform.” delicate that this Court is called on to Ibid. Following Hooper, supra, as cases such United States ex rel.

Attorney 366, General Delaware & Hudson 213 U. Co., S. (1909), Moy, Fuey and United States v. Jin U. S. (1916), corollary developed “[a] 394, 401 the doctrine that possible, fairly if construed, statute must be as so to avoid only not the conclusion that it is unconstitutional but also upon grave doubts that score.” This canon is of followed out Congress, respect legislates light which we in assume the constitutional limitations. FTC American Tobacco (1924). qualified by Co., 298, U. S. It is 306-307 difficulty proposition pressed of a not “avoidance will be point disingenuous George to the evasion.” Moore Ice Co. v. Rose, Cream Congress appropriated

Here forbade the use of in funds programs family planning. is a where abortion method It Secretary promulgate regulations imple- authorized the menting provision. litigation regarding this The extensive governmental on in restrictions abortion since our decision (1973),suggests likely Roe v. 410 U. it Wade, S. that was any regulations promulgated by Secretary— set of prior by than in other the ones force to 1988and him to found relatively challenged toothless and ineffectual—would be grounds. on constitutional While we do not think arguments by petitioners made constitutional these cases they without force, III, infra, some in Part we hold that carry day. Applying not the canon do of construction regulations can, under discussion as best we hold that the we promulgated by Secretary “grave do raise the sort questions,” and doubtful Delaware & Hudson constitutional supra, Co., would lead us assume did Therefore, not intend to authorize their issuance. we need regulations not invalidate order save the statute unconstitutionality. from

I-H HH I—Í First violate the regulations contend that Petitioners on view- based discriminating Amendment impermissibly as a about abortion “all discussion they because point prohibit referral, and the counseling, provi- lawful option including — ending preg- information about and accurate sion of neutral in- provide clinic counselor to compelling nancy —while to term.” pregnancy continuing formation that promotes 11. assert that 89-1391, They p. No. Brief for Petitioners rights private the “free speech violate their Title X funds, that receive organizations health care thpir “view- by impermissibly imposing staff, patients” government subsidies” conditions point-discriminatory non-Title monies.” funded with speech thus “penaliz[e] Id., X continues to fund speech 24. Because “Title 13, 14, at a manner that is not even- in testing ancillary pregnancy abortion, and information about with to views respect handed Id., of viewpoint.” discriminates on the basis invidiously it Representation Regan v. Taxation with at 18. Relying Project, Arkansas Writers’ Wash., (1983), 540 Ragland, Inc. also (1987), S. 234 petitioners v. 481 U. certain condi- may place assert that while Government it not may “discrimi- subsidies, tions on the of federal receipt at a way ‘ai[m] in its such as nate subsidies invidiously Regan, supra, at 548 ideas.’” dangerous the suppression States, United Cammarano v. S. 358 U. (quoting (1959)). con- the statutory prohibition is but that

There no question Roe, In Maher v. §1008 is constitutional. tained under welfare (1977), regulation we state upheld U. S. services re- received recipients payments which Medicaid abortions. childbirth, but not for nontherapeutic lated to claim that this subsidization unequal rejected The Court held that of the Constitution. We worked a violation favoring a value childbirth judgment “make may government the alio- abortion, . . . implement judgment by over public Id,., cation of funds.” 474. Here the at Government authority possesses exercising it under Maher and (1980), family McRae, Harris v. U. S. 297 to subsidize planning conception which will lead to services and child- declining encourage “promote birth, and abortion.” violating can, Constitution, Government without se- lectively program encourage fund a certain activities it be- public interest, lieves to in the without at the same time funding program an alternative which seeks deal with the problem way. doing, another so the Government has viewpoint; merely not on the discriminated basis of it has cho- activity “[A] sen to fund one to the exclusion of the other. legislature’s decision to subsidize the exercise of a funda- right right.” Regan, infringe supra, mental does not Buckley (1976); at Valeo, 549. See also S. 1 U. supra. Cammarano United “A States, refusal to fund protected activity, equated more, without cannot be with the imposition ‘penalty’ activity.” supra, McRae, of a on that 317, n. 19. “There is a basic difference between direct state protected activity encourage- interference with and state activity legislative pol- ment of an alternative consonant with icy.” supra, at 475. Maher, regulations implement challenged statutory prohi- by prohibiting counseling, provision

bition referral, and the regarding family plan- of information abortion as a method of ning. They designed to ensure that the limits of the program program federal are observed. Title is de- signed prenatal encourage family plan- care, to not for but ning. prenatal A to doctor who wished offer care to a project patient pregnant properly pro- who became could be doing hibited from so such because service is outside the scope federally program. of the funded prohibiting counseling and abortion referral are of the same appropriated may project “no be in ilk; funds for used programs family planning,” where abortion is method of a employed by project may prohibited and a doctor in counseling project abortion duties from of his the course referring is a case of the Government This not for abortion. prohibition dangerous on a of a “suppressing idea,” but a engaging employees grantee in project from activities itsor scope. project’s outside unconstitutionally discrimi

To hold that Government pro viewpoint to fund a when it chooses nates on basis goals, permissible gram because certain advance dedicated to necessarily discourages goals advancing program those pro goals, render numerous Government would alternative suspect. constitutionally grams established When Democracy encourage other a Endowment National principles, adopt S. C. U. democratic countries pro constitutionally required 4411(b), fund a it was philosophy competing political encourage gram lines of Petitioners’ assertions and fascism. such as communism ultimately position if the Government to the boil down protected right, it must subsidize one to subsidize chooses soundly counterpart rights. analogous But the Court has Repre Regan rejected proposition. v. Taxation with supra; supra; Roe, Harris v. Wash., Maher v. sentation petitioners supra. limits than far broader McRae, Within appropriates willing concede, when the Government program public a it is entitled to define funds to establish program. limits of that upon petitioners’ reliance our decision

We believe supra, misplaced. Project, That case Arkansas Writers’ maga tax which discriminated between a state sales involved Relying fact, of their content. on this the basis zines on group “targets a within the tax small on the fact that Minneapolis contrary press,” Tri Star & to our decision Revenue, bune v. Minnesota Comm’r Co.

(1983), But we have here not held the tax invalid. the Court group singling general law out disfavored case of speech re- content, but a case of the Government the basis fusing including speech, specifi- activities, to fund which are cally scope project excluded from the funded. rely heavily regulations

Petitioners on their claim that the emergency, per- in the not, would circumstance of a medical project pregnancy a X mit Title to a refer woman whose places peril provider her life imminent to a of abortions or cases, abortion-related services. These only of course, involve challenge regulations, a to facial and we do not have any application by Secretary specific before us to a fact regulations face, situation. On their we not do read the counseling bar abortion referral or in such circumstances. counseling family planning” pro- a Abortion as “method of medically hibited, it not that does seem a necessitated equivalent abortion such circumstances would be the § family planning.” its use as a “method Neither specific regulations apply. nor restrictions of the would regulations contemplate Moreover, themselves a that permitted project engage XTitle be would in otherwise- prohibited, activity abortion-related in such circumstances. 59.8(a)(2) specific provides exemption Section for emer- gency requires recipients care and Title X “to refer the client immediately provider appropriate emergency to an medi- 59.8(a)(2)(1989). 59.5(b)(1) § cal services.” CFR Section requires provide “necessary projects Title X also referral medically other medical facilities when indicated.”4 that, face, regulations narrowly We also find on their are tailored Congress’ “promote to fit intent in Title federal funds be used to family planning.” or advocate” abortion as a “method of compliance designed prohibition to ensure with of 1008that none appropriated program of the funds under Title X used in where abor family recognized is a We planning. Congress’ tion method have power public purposes ancillary power an to allocate funds for includes properly applied prescribed ensure that those funds are to the use. See (1987) Dole, (upholding against U. S. South Dakota 207-209 requirement challenge drinking age Tenth Amendment raise States as funds); Valeo, receipt highway Buckley v. condition to of federal U. S. 1, 99 on the that the restrictions sub- contend Petitioners also regula- speech in the contained sidization of abortion-related receipt they impermissiblé of condition the because tions are relinquish- funding, on X the benefit, in Title a these cases engage right, right in abortion the ment of a constitutional Perry Relying Sindermann, advocacy counseling. v. (1972), League Vot- Women and FCC 593, 408 U. S. of argue (1984),petitioners “even that Cal., U. S. 364 ers of any may deny [a] though government . . . benefit for the upon which reasons, of are some reasons number there deny rely. may may a government a benefit to It not constitutionally protected infringes person his a that on basis speech.” especially, in freedom of his interest interests — Perry, supra, at 597. unavailing, however, these cases is Petitioners’ reliance on denying any- a benefit to the Government is not because here public spent simply insisting funds be but is instead one, they purposes authorized. The Sec- for which were for the grantee give retary’s regulations Title X do not force the they merely require speech; up abortion-related separate grantee keep from Title and distinct such activities distinguishes expressly between a Title X X activities. Title project. grantee, grantee which X X The nor- and a Title may mally organization, a receive funds from a health-care is variety purposes. variety Brief for Peti- of sources for grantee pp. receives 89-1391, n. 13. tioners No. purpose specific for the and limited X funds, however, Title project. establishing operating X a Title C. 300(a). scope regulations govern Title X grantee project’s in its unfettered activities, and leave the per- grantee X continue to The Title can other activities. provide abortions, services, abortion-related and en- form advocacy; simply required gage it to conduct in abortion separate through programs that are and inde- those activities project pendent Title funds. from the that receives §59.9 CFR contrast,

In our “unconstitutional conditions” cases involve placed situations the Government has condition on which subsidy recipient particular pro- on a rather than effectively gram prohibiting recipient or service, thus engaging protected scope in the outside the from conduct federally program. League funded FCC Women providing Cal., Voters we invalidated a federal law noncommercial television and radio that stations receive fed- grants may “engage editorializing.” eral Under that recipient absolutely law, a of federal funds was “barred from editorializing” segregate it all because “is not able to its according funding” activities source of its and thus way limiting “has no the use of federal its funds to all noneditorializing activities.” The effect the law was that only “a noncommercial station educational that receives 1%of grants [federal] absolutely overall its income from is barred editorializing” using wholly all and “barred from from even activity.” private funds to finance its editorial S.,U. at expressly recognized, however, 400. We that were Con- permit recipient gress to stations to “establish ‘affiliate’ organizations which could then use the station’s facilities to statutory a funds, editorialize with nonfederal such mecha- plainly would valid.” Ibid. a nism be Such scheme would permit the station make known “to its views matters of nonfederally public importance through funded, its editorial- izing losing grants affiliate without federal for its non- ” editorializing activities. Ibid. broadcast

Similarly, Regan Congress we could, held that the ex- power, reasonably spending ercise of its refuse to subsidize lobbying tax-exempt organizations activities charitable by prohibiting organizations using such from tax-deductible support lobbying their contributions efforts. so hold- explained organizations ing, we such remained free “to support nonlobby- receive deductible . . . contributions ing activities].” S., Thus, U. at a 546. charitable 501(c)(3) § organization create, could under of the Internal 501(c)(3), § an affiliate 1954, 26 S. C. Code of U. Revenue using nonlobbying activities tax-deductible to conduct its §501 establish, time under contributions, and at the same (c)(4), separate pursue with- itsvlobbying efforts affiliate to that alter- Given S.,U. out such contributions. 544. infringed “Congress has not native, the Court concluded any rights regulated any Amend- First First Amendment pay [appel- activity[; simply it] not to has chosen ment appellee lobbying.” lee’s] at 546. We also noted Id., 501(c)(3) § orga- course, have to ensure “would, 501(c)(4) organization; other- nization did not subsidize activity Congress might spent public on an funds wise, Id., fed- at 544. condition that chose not to subsidize.” grant only purposes of further the eral funds will be used “Congress rights. could, for constitutional does not violate organization example, grant dedicated to combat- funds to an grant providing teenage drug ing abuse, but condition money received from should be that none of the lobby legislatures.” id., at 548. state See used engage By grantee requiring X in that the Title abortion- activity receiving activity separately federal from related teachings funding, Congress in consistent with our has, Regan, right League it not denied the Women Voters and engage has in abortion-related activities. public merely fisc, to fund such activities out of the refused Secretary simply required degree has a certain and the separation project in in- X order to ensure the from the Title federally program. tegrity of the funded principles apply petitioners’ claim that the The same grantee’s abridge speech rights regulations the free of the voluntarily employed for a Title who are staff. Individuals perform project their in accordance with the X duties must counseling regulation’s and referral. restrictions on abortion pursue employees however, to abortion- free, remain they acting auspices under the activities when not related solely regulations, govern project. X which Title scope project’s any way of the Title X activities, do persons acting private restrict the activities of those as indi- employees’ expression viduals. The freedom of is limited during they actually project; the time that work for the but consequence accept this limitation is a of their decision to em- ployment project, scope permissibly in a of which is re- funding authority.5 stricted suggest funding by is

This not to the Government, coupled recipients even when with the freedom of the fund speak scope project, outside the of the Government-funded is invariably justify sufficient to Government control over the expression. example, recog- content of For this Court has 5Petitioners also contend that violate the First Amend by penalizing speech ment moneys. funded with X They non-Title argue requires that since Title X grant recipients financing contribute to the projects X through Title matching grant-related use of funds and income, regulation’s restrictions on counseling advocacy abortion penalize privately speech. funded argument First, We find this flawed for several reasons. Title X subsi- just that,

dies are recipient way compelled subsidies. The oper- no project; ate a Title to avoid the regulations, simply force of the it can subsidy. City Bell, decline the College See Grove 465 U. S. (1984) (petitioner’s rights First Amendment “may not violated because it participation terminate its program the [federal] and thus avoid the re- quirements funds, program]”). By [the federal accepting Title X a re- cipient voluntarily any placed any consents to restrictions matching grant-related funds or grant recipients income. Potential can choose be- accepting subject tween Title X to the Government’s conditions funds — they provide matching forgo counseling funds and abortion and refer- project ral in the Title X declining subsidy financing their own —or program. unsubsidized We have never held that the Government violates Second, simply by the First Amendment offering that choice. the Secre- tary’s regulations apply only programs. recipient to Title X A is there- fore able to the of “limi[t] use its federal funds to [Title X] activities.” (1984). Cal., 364, League v. FCC Women Voters 468 U. S. It is way wholly in no using private “barred from even pro- funds to finance” its program. abortion activities outside the Title X regulations Ibid. The funds; recipient are limited to X private, Title the free remains to use non- XTitle funds to finance abortion-related activities. “subsidy,” in the a Government the existence of that

nized justify property, re- not traditionally open the does form of Government-owned speech that have “been in areas striction of activity,” public expressive United States to the (1990);Hague CIO, 307 U. S. Kokinda, 720, 497 U. S. (1939) J.), (opinion “ex- or have been Roberts, 496, supra, activity.” speech Kokinda, pressly dedicated Perry Assn., Perry Educators' Local Ed. Assn. v. 726; (1983). recognized Similarly, the we have 37, 45 U. S. expression sphere university funda- free so is a traditional society functioning that the Govern of our mental to by sphere speech ability means within to control ment’s expenditure of Government attached to of conditions by vagueness overbreadth doc is restricted funds Keyishian Re v. Board Amendment, of the First trines gents, Y., N. 605-606 State Univ. of argued by analogy that traditional rela- It could be patient tionships should doctor and as that between such enjoy protection Amendment from Govern- under the First by regulation, the Government. even when subsidized ment question here, because however, not resolve that We need impinge significantly program do not the Title Nothing doctor-patient relationship. re- upon in them any represent opinion he quires as his own doctor relationship doctor-patient in fact hold. Nor is the not does sufficiently program all encom- Title X established pa- part justify expectation passing an on the so as program comprehensive does medical advice. tient of postconception provide therefore a doc- care, medical reasonably regard cannot with abortion tor’s silence thinking thought does into that the doctor a client to mislead option appropriate for her. an not consider abortion regarding always to make clear that advice is free doctor program. beyond scope simply abortion general rule that the Government circumstances, the these speech applies may with full force. to subsidize choose not I—H <1 petitioners’ argument regulations turnWe now to right a Fifth violate woman’s Amendment to choose whether pregnancy. recently to her terminate We reaffirmed the long-recognized principle that “'the Due Process Clauses generally right governmental confer no aid, affirmative to may necessary liberty, even where such aid life, secure property government may interests which the itself not ” deprive quoting the individual.’ Webster, 492 S., 507, U. at DeShaney Winnebago County Dept. Social Services, 189, 196 U. S. duty The Government has no constitutional activity merely activity

to subsidize an because the constitutionally protected may validly choose to fund “'implement judgment by childbirth over abortion and ” public relating the allocation of funds’ medical services relating but to childbirth not to those Webster, to abortion. (citation omitted). supra, at 510 The Government has no af- duty any facilitating firmative to “commit resources abor- Webster, tions,” 492 U. S., at and its decision fund “places governmental childbirth but abortion no obstacle path preg- a of woman who chooses to terminate her nancy, unequal but rather, means of subsidization of abor- encourages tion and other medical services, alternative activ- ity public deemed in the interest.” at McRae, S.,U. 315. impermissibly

That the do not burden wom- rights Fifth an’s Amendment is evident from line of cases beginning culminating Maher with and McRae and in our Congress’ most recent decision in Webster. Just as refusal indigent to fund abortions McRae left “an at woman with range deciding least the same of choice in whether to obtain a medically necessary abortion as she would had if have Con- gress all,” no health at had chosen to subsidize care costs public employ- S., U. and “Missouri’srefusal allow perform public hospitals pregnant ees abortions leaves if woman with the same as chosen not choices State had supra, any public hospitals,” operate at Webster, to advocacy counseling Congress’ and to fund abortion refusal Gov- pregnant if the as a woman with the same choices leaves at family-planning services fund ernment had chosen not to X difficulty a Title a encounters when that woman all. counseling provide referral project abortion does not if position been have in no than she would leaves her different X. had not enacted Title Government “[hjaving the State’s that held that Webster, In we stated [in Roe v. Maher] abortions does not violate to fund refusal contrary logic use for the it to reach a result Wade, strains employees.” public S., 492 U. at 509-510. and facilities similarly logic, light extreme in the more strain It would to find that the mere decision cases, restrictions those federally from a funded services to exclude abortion-related family program planning preconceptional is unconstitutional. infringing argue by impermissibly on also Petitioners relationship depriving doctor-patient X a Title client and family concerning as a method of information abortion planning, Amend- violate a woman’s Fifth right in- and to make medical self-determination ment to government-imposed harm. medical decisions free of formed They argue in Akron v. Akron Cen- our decisions under (1983), Reproductive and Health, Inc., S. ter U. Gyne- College Thornburgh American Obstetricians (1986), cologists, cannot inter- 476 U. S. 747 Government voluntary right a woman’s to make an informed fere with dialogue. patient-doctor by placing restrictions choice city requiring all Akron, we invalidated a ordinance patient prior specified physicians to to make statements performing the wom- an abortion in order to ensure that to “truly 423. S., 462 U. Simi- was informed.” an’s consent larly, Thornburgh, statute mandat- we struck down state offering ing agencies alternatives abortion that a list of provided every development description of fetal pregnancy through considering terminating an woman her Thornburgh our abortion. Critical to decisions in Akron and governmental patient-doctor to invalidate a intrusion into the dialogue required was the fact the laws both cases all respective provide jurisdictions doctors their within all pregnant patients litany contemplating an abortion a patient regardless sought information, of whether the thought information or whether the doctor the information necessary patient’s Secretary’s to the decision. Under regulations, ability provide, however, a doctor’s and a right concerning receive, woman’s information abortion context and abortion-related services outside the of the Title project undoubtedly remains unfettered. It would be eas- seeking an ier for woman abortion if could in- she receive project, formation about abortion from a Title X but the Con- require stitution does not that the Government distort the scope program provide of its mandated order information. X contend, however,

Petitioners Title most clients are effectively precluded indigency poverty seeing from provider provide who health-care will abortion-related serv- again, ices. But even X oncé these Title clients are no position if worse than had never enacted Title X. indigent “The financial constraints that restrict an woman’s ability enjoy range constitutionally protected the full of product governmental freedom of not choice are re- indigency.” abortion, strictions on access to but rather her supra, McRae, at 316. Secretary’s regulations permissible are a construction

of Title and do violate either the First or Fifth Amend- Accordingly, judgment ments Constitution. Appeals Court of

Affirmed. with whom Justice Marshall Blackmun, Justice joins, joins with as to Parts II and whom Justice Stevens joins III, I, and with whom JUSTICEO'CONNOR as to Part

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

I majority dispute "[f]ederal does not statutes are to be so construed as to avoid serious doubt of their constitu tionality." Street, Machinists v. Hooper (1895); California, See also 155 U. S. 657 (1932); Benson, 22, Crowell v. 285 U. S. 62 United States v. Security (1982). Bank, 70, Industrial 459 U. S. 78 Nor does majority deny principle fully applicable the that this is plausible cases such as the instant ones in which a but con- stitutionally suspect statutory interpretation is embodied in regulation. an administrative See Edward J. DeBartolo Corp. Building v. Florida Gulf Coast & Construction Trades (1988); Bishop Council, 568, 485 U. S. NLRB v. Catholic Chicago, (1979); Dulles, 440 U. S. 490 Kent v. (1958). 116, Rather, 129-130 in its zeal to address the con- majority sidesteps issues, stitutional this established canon of construction with the feeble excuse that the chal- n lenged ‘grave regulations and doubt- “do not raise sort questions,’ ful . . that would us constitutional . lead to as- sume did not intend to authorize their issuance.” quoting Attorney 191, rel. Ante, States ex General United & Co., v. Delaware Hudson 213 U. S. response problem

This facile to the intractable the Court today disingenuous addresses is at best. Whether not one regulations reality valid, believes that these are it avoids they give contend that do not rise to serious constitutional questions. applicable canon these not cases be- likely regulations] [the cause “it was . . . would chal- lenged grounds,” ante, at on constitutional 191, but because question squarely presented by regulations ex- —the may tent to which Government attach an un- otherwise receipt public of a constitutional condition to benefit—im- plicates jurisprudence a troubled area our which court ought entangle unnecessarily. g., Epstein, itself See, e. Conditions, Power, Unconstitutional State and the Limits of (1988)(describing prob- Harv. L. Rev. Consent, 102 this lem as “the basic structural issue that for over a hundred years .”); . has bedeviled courts commentators alike . Conditions, 102 L. Sullivan, Unconstitutional Harv. Rev. (1989) (observing 1413, 1415-1416 that this Court’s uncon- “seem stitutional conditions cases a minefield to be traversed gingerly”). regulations II

As is discussed in Parts and III, infra, impose viewpoint-based upon protected speech restrictions at a aimed woman’s decision whether to continue or pregnancy. respects, they implicate terminate her both verity core constitutional values. This is evidenced Appeals fact that two three Courts of that have enter- challenges tained have to the invalidated them grounds. Secretary on constitutional See Massachusetts (CA1 1990); Services, Health Human F. 2d 53 Sullivan, Planned Parenthood Federation America v. (CA10 1990). F. 2d 1492 206 regulations panel the Circuit found of the Tenth

A divided Thornburgh prohibition squarely in v. “fal[l] within the Gynecologists, College 476 and Obstetricians American of [(1986)], City Re- Akron Center and Akron v. 747 U. S. of [(1983)],against productive state Health, 462 U. S. 416 Inc., requests given or is from advice a woman intrusion into the by en banc Id., Circuit, 1501. The First her doctor.” at regulations dissenting, judge violate found the with one rights patients privacy the First of Title X both the rights grantees. 2d also 889 F. Title X See of Amendment 1989) (CA2 part). (Kearse, dissenting in That J., 415 401, today majority a different result Court reaches this bare questions change fact that the constitutional the does not grave by and doubtful. are both the raised statutory language it- the a situation which Nor is this question. requires Sec- a constitutional us to address self 42 Act, 84 Stat. the Public Health Service tion 1008of appro- § provides simply: the funds “None of 300a-6, C. U. S. programs priated where abor- be used under this title shall majority family planning.” concedes tion is a method of directly speak language to the issues “does not this advocacy, program integrity,” ante, counseling, referral, history ambiguous” legislative in this is that “the at § language Consequently, 1008 respect. Ante, 186. constitutionally interpretation.1 easily trouble-free sustains statutory prohi majority question “There no but that states: Ante, statement at 192. This 1008is constitutional.” bition contained only prohibit § 1008 to Were the Court to read begs question. simply indeed, as, with Title X performance abortions the actual funds — (1988) 2, 1988, Reg. February see Fed. Secretary did until — the up- category that the Court restrictions fall within provision would Roe, McRae, (1980), Maher in Harris S. 297 U. held regulation By interpreting the statute authorize U. S. however, patient, physician and speech between abortion-related Court, constitutionally sound con- rejected a Secretary, have and now clearly constitutional. that is no means in favor one struction

207 not a situation in which “the Thus, this is intention Con- is revealed too to us it be- gress permit ignore to distinctly Moore Ice cause of as George misgivings power.” mere Rose, Cream Co. v. 373, 289 U. 379 it Indeed, S. would our avoid appear duty unnecessarily passing constitutional is upon important questions strongest where, as of the here, language the statute is decidedly ambiguous. It is both prudent to assume that when logical eminently limits press intends constitutionality enactments, its it will intent express explicit Sunstein, terms. See Law unambiguous and Administration (1990) (“It Chevron, After 90 Colum. Rev. 2071, L. is Chevron, thus after implausible that, agency interpretations will if statutes even ambiguous prevail consequence of those is to interpretations produce invalidity or raise seri- doubts”). ous constitutional I

Because conclude that a constitutional construc- plainly tion of “is not only possible’ but ‘fairly entirely reason- Machinists, I able,” 750, U. S., would reverse the the Court of judgment of this without de- Appeals ground constitutionality ciding Secretary’s regulations.

I—l I—I I also with strongly disagree majority’s disposition of claims, petitioners’ constitutional I feel that a because re- indicated, thereto is I move on to sponse that issue.

A Until Court never has today, upheld viewpoint-based speech because that suppression simply was a suppression condition of public funds. upon acceptance Whatever be the to condition may power Government’s of its receipt largess upon relinquishment constitutional it rights, extend to a surely does not condition the re- suppresses cipient’s cherished freedom of based speech solely upon the Randall, content or of that speech. Speiser viewpoint (1958) (“To an deny U. S. 518-519 to claim- exemption speech engage is in effect in certain forms ants who ‘frankly speech. penalize . . . The denial for such them quoting dangerous suppression ideas,’” at the aimed Douds, 339 U. S. Assn. American Communications (1950)). States, v. United Cammarano See (1959). League Women Voters also FCC v. 513 See 498, of of (1984) dissenting). J., 364, 407 468 U. S. Cal., (Rehnquist, Ragland, Project, S. 481 U. Inc. v. Arkansas Writers’ Cf. (1987) dissenting). a sound This rule is J., 221, 237 (Scalia, regulation of “‘A often has noted: for, as the Court one, by nothing speech than a desire more that is motivated point particular expression view on contro of of a curtail example purest general of a is the interest issues of versial press.’”” speech, abridging of or of . . the freedom “law . League quoting 383-384, Con Voters, S., 468U. at Women of Comm’n N. Y. v. Public Service Edison Co. solidated of of (1980) concurring in J., 546 530, 447 S. Y.,N. U. (Stevens, “[Ajbove means judgment). First Amendment else, all expression power government because restrict no has that subject message, or its content.” ideas, matter, its its of its Chicago Mosley, Dept. 92, 408 S. 95 U. Police of Regan opinion with Nothing v. Taxation Court’s (1983), Washington, can be Representation 461 540 U. S. Regan, understanding. long-settled challenge this said to provision upheld the Internal a content-neutral Court par- 501(c)(3), § that disallowed Code, U. S. C. Revenue “attempt[edj organizations tax-exempt status ticular affording legislation,” to veter- such status while to influence lobbying irrespective organizations activities. of their an’s supra, Finding Cammarano, controlled the case if explained: “The case would be different Court way invidiously in its subsidies such to discriminate were ‘“ai[mj suppression dangerous . . . ideas.’” at the toas sup- intended to the statute was find no indication We any ef- any it has had that press demonstration ideas quoting at 548, Cammarano, S., 358 U. S., at 461 U. fect.” quoting Speiser, separate in turn U. at S., 519. Regan joined opinion precisely concurrence in the Court’s “[b]ecause 26 S. C. veter U. 501’sdiscrimination between organizations organizations ans’ charitable not based speech.” on of their 551. S., the content U. at seriously disputed counseling It cannot present provisions referral at issue in the cases constitute regulation speech. grantees may Title X content-based provide counseling any regarding and referral of a wide range family planning topics, and other save abortion. Cf. (“The S., Consolidated Edison U. Co., 447 First hostility regulation Amendment’s to content-based extends only particular viewpoints, restrictions but also to prohibition public topic”); discussion of an entire Boos v. J.) (1988) Barry, (opinion O’Connor, (same). clearly regulations viewpoint

The are also based. While suppressing speech favorable abortion hand, to with one the Secretary speech compels antiabortion with the other. For example, Department the of Health and Human Services’ description regulations plain own makes X “Title projects required prenatal are to access facilitate to care and including adoption might social services, services, by promote pregnant well-being needed the client to her making abundantly child, that of her while it clear that the project permitted promote facilitating is not to abortion through process.”. referral access to abortion the 53 Fed. (1988) added). Reg. (emphasis regulations project Moreover, the command that a refer for prenatal diagnosed pregnant, irrespec- care each woman as expressed tive of the to or woman’s desire continue terminate 59.8(a)(2) (1990). § pregnancy. her a CFR If client asks directly physician X abortion, about a Title counselor or required say, project to essence, does not con- appropriate family plan- sider abortion to be an method of 59.8(b)(4). ning. requirements Both are antithetical to v, Wooley Maynard, 430 U. See S. Amendment. the First (1977). “advocacy” regulations pertaining are even more to The proj- provide: explicitly viewpoint “A Title X These based. encourage, promote may or advocate abortion as ect added). (emphasis §59.10 family planning.” a method of They explain: requirement prohibits actions to assist “This availability or or abortions increase women obtain family purposes.” planning accessibility of abortion added). §59.10(a) regulations (emphasis not, how- do advocacy. regulate proscribe antiabortion or even ever, suppression clearly aimed at restrictions These “dangerous ideas.”

Remarkably, majority that “the Government concludes viewpoint; merely it has the basis of not discriminated on has activity of the other.” to the exclusion chosen to fund one regulations majority’s claim that Ante, at 193. But the project’s speech preventive merely X limit Title light rings preconceptional hollow in services, ibid., nonpreventive range services that broad provide.2 By refusing projects fund authorize Title family-planning projects be- that advocate abortion those plainly they has abortion, the Government cause advocate Against viewpoint. targeted particular v. Rock Cf. Ward majority’s reliance S. 781 Racism, 491 U. funding solely regulations pertain deci- fact that the Clearly, question. simply begs there are some sions may government upon its decision to not rest which bases example, of the ma- For the Members or not to fund. fund may agree government jority surely its not base would adoption serv prenatal care and requiring referral for In addition physical ices, general such as ex permit health services regulations the aminations, cancer, prob gynecological screening breast treatment of for lems, sexually Reg. 53 Fed. transmitted diseases. for and treatment (1988). strictly preventive, preconceptional None of the latter services.

decision to an of support activity considerations race. upon Yick, e. Wo g., Hopkins, See, 118 U. S. 356 As above, demonstrated our cases make clear that ideological is a which to base viewpoint similarly repugnant ground upon decisions. funding upon Regan majority’s reliance this connection is

also That case the misplaced. stands for proposition government has no obligation private party’s subsidize efforts to the its petition legislature regarding Thus, views. if the challenged were confined to regulations nonideological the upon limitations use Title funds for activi- lobbying ties, would no there exist violation of the First Amendment. at advocacy here, issue not lim- however, are ited to but extend to all effect lobbying speech having the or abortion encouraging, as a method promoting, advocating 59.10(a) (1990). family CFR addi- planning. Thus, tion to their focus the impermissible upon viewpoint regu- lated the intrude speech, provisions upon range wide conduct, communicative the including very words to a spoken her woman by physician. By the content of manipulating the doctor-patient dialogue, the regulations upheld today force each of the “to be an instrument foster- petitioners adherence ing public to an of view ideological point [he she] unacceptable.” Wooley finds at Maynard, S.,U. 715. of intrusive, This based type ideologically regulation far speech narrow goes beyond lobbying ap- limitations proved Regan and cannot because it is a justified simply condition of a upon benefit.3 receipt governmental majority attempts

3The through to obscure the breadth of its decision program regulations its contention that “the Title X signifi curious do not Ante, cantly upon doctor-patient relationship.” impinge 200. That at doctor-patient relationship substantially by prohibit is burdened a rule ing by physician pertinent the dissemination medical information is beyond dispute. burden serious This is undiminished the fact relationship “all-encompassing” issue here not an one. A woman seeking every expect, of a X clinic reason services Title has as do we all, physician that her will regarding not withhold relevant information

B challenged regulations not do The Court concludes rights Title X staff members First Amendment violate the expres- any employees’ freedom of limitation of the because accept simply consequence em- of their decision to sion is a federally project. ployment Ante, at a funded 198-199. justify an otherwise uncon- it never been sufficient But has public employment upon em- condition stitutional may escape by relinquishing ployee her his or the condition may job. beyond question government re- It “that a not rights guaranteed quire relinquish him an individual public employment.” a First Amendment as condition (1977), citing Ed., 209, v. Detroit Bd. 431 U. S. Abood (1976), v. S. 357-360 and cases Burns, Elrod U. (1972); Perry Sindermann, 408 U. S. 593 therein; cited Regents, Keyishian State Univ. N. Y., v. Board of was said: (1967). Nearly ago, it two decades U. S. 589 quarter-century, a this Court has made “For at least though person ‘right’ no to a a has clear even though gov- governmental and even valuable benefit may deny any him the benefit for number ernment upon govern- which the reasons, there are some reasons may deny may rely. to a It not benefit ment infringes constitutionally pro- person his a basis that especially, his interest in freedom tected interests — deny government speech. to a if the could a benefit For in unin- purpose suggest engage visit. To otherwise is very of her Further, relationship is fantasy. doctor-patient hold that formed compre- patient seek incomplete lacks the resources to somehow where of a single provider ignore is to the situation health care from a hensive Marshall has a differ- As Justice noted number of Americans. vast disagree what the perfectly proper judges about context: “It is ent interpretation disgraceful it is for an requires. But Constitution people how upon assumptions premised to be unfounded about Constitution Kras, (1973) (dissenting live.” United States opinion"). constitutionally

person protected speech of his because in associations, his exercise of those freedoms would penalized be This effect inhibited. would allow the government ‘produce [it] to a result which could not com- directly.’” Perry Sindermann, S., mand v. at U. quoting Speiser v. 597, Randall, S., 357 U. at 526. majority attempts principle by to circumvent this emphasizing physicians that Title X and counselors “remain pursue they free ... abortion-related activities when auspices acting project.” under the of the Title X Ante, regulations,” majority explains, at 198. “The the “do not any way persons acting pri- restrict the activities of as those majority’s Ante, vate individuals.” at 199. Under the reasoning, the First Amendment could read to tolerate any governmental upon speech employee’s restriction an long so as restriction is limited the funded work- place. dangerous proposition, This is a and one the Court rejected rightly past. has in the petitioners’

In Abood, it was no answer to the claim com- pelled speech upon public employment as a condition workplace speech unregulated by their outside the remained public employee’s Nor State. was the First Amendment (1987), claim in Rankin McPherson, S. 378 U. dero- gated employer sought because the communication that her during punish least, occurred business hours. At the such require speaker’s courts to conditions balance the interest message against government preventing those its Pickering dissemination. Ed. Id., 384; Board (1968). High Township Dist., School 391 U. S. speaker’s In bar, the cases at interest in the communi- family- addressing cation is both clear vital. planning physicians clients, needs of their and counselors projects provide who staff Title seek the full them with range options regarding of information and their health and reproductive legitimate expectations Indeed, freedom. responsibilities patient of the medical and the ethical right patient’s

profession of self- “The no less. demand patient pos- effectively only if the exercised can be decision enough intelligent . . choice. . to enable an information sesses help obligation patient physician an has ethical among therapeutic con- alternatives from make choices Opinions practice.” good Current medical sistent with Affairs American Medical on Ethical and Judicial Council ¶8.08 also President’s Commission See Association Study in Medicine and Biomedical Ethical Problems for the Making Health Care Decisions Research, and Behavioral Gynecologists, (1982); College & of Obstetricians American (7th Obstetric-Gynecologic ed. Services Standards for 1989). range pregnant, the full becomes When client option, therapeutic includes the abortion alternatives providing information is X this counselors’ interest Title compelling. distorting interest articulated Government’s

doctor-patient dialogue ensuring that funds are not federal — program purpose scope spent of the for a outside the —falls necessary justify suppression of truth far of that short opinion regarding professional medical ful information protected constitutionally Moreover, the offend conduct.1 narrowly ing regulation this interest. tailored to serve is not governmental example, at stake could be interest For bookkeeping by imposing rigorous en standards served adopting separation rules or content-neutral sure financial family-planning and health dissemination of for the balanced Secretary Health Massachusetts See information. (CA1 1990), pending, 53, 74 cert. Services, 899 F. 2d Human failing By balance or even consider 89-1929. No. physicians against speech X claimed Title interests free suppressing the interest asserted the Government’s duty protee- implement speech, in its falters Court Secretary regula has made no claim that that the It is to be noted of Title clients. any concern for the health welfare at issue reflect tions clearly provides tion that the First Amendment for this im- portant message. C Finally, significance speech it is of no small Secretary suppress regarding would is truthful information constitutionally protected importance conduct of vital to the imagine legitimate governmental listener. One can no inter- might by suppressing est that Concededly, be served such information. among the abortion debate is the most divisive and contentious issues that our Nation has faced in recent years. things "But freedom to differ is not limited to that do not matter much. That would be a mere shadow of freedom. right things The test of its substance is the to differ as to existing Virginia touch the heart of the order." West Bd. of Barnette, Ed. v. III By disturbing aspectof today's ruling far the most is the rights effect it will have on the Fifth Amendment supposedly, pro- who, women are beneficiaries of Title X grams. majority rejects petitioners' Fifth Amendment summarily. primarily upon claims It relies the decisions in (1980), McRae, Harris v. 448 U. S. 297 and Webster v. Re- productive Services, Health 492 U. S. 490 There cases, were dissents in those and we continue to believe that they wrongly unfortunately were and decided. Be that as it may, accepts theorizing even if one as valid the Court's in majority's reasoning present cases, those flawed. in the cases is today, oniy Until the Court has allowed to stand those re upon reproductive limiting that, strictions freedom while availability ability abortion, have left intact a woman's preg decide without coercion whether she will continue her nancy (1977),MeRae, to term. Maher v. Roe. 432 U. S. 464 Today's and Webster are all to this effect. decision abandons principle, and with disastrous results. 216 not a

Contrary majority’s characterization, this to the ex- in aid seek Government in which individuals situation rights. ercising The Fifth Amendment fundamental their pregnant right right petitioners aof is the asserted governmental from affirmative woman to be free interference (1973), and its Wade, 410 U. S. in her decision. Roe they procedure progeny as much about a medical are not so right to self-determination. about woman’sfundamental “liberty,” if vindicate idea serve to Those cases governmental anything, freedom from must entail it .means personal of making deci- most intimate and domination Reproductive g., Center Akron v. Akron e. See, sions. (1983)(governmental inter- 416, 444 Health, 462 U. S. Inc., medically ensuring pregnant rel- women receive est justify “will not abortion information evant designed choice between woman’s informed to influence the (not childbirth”); S., at 473 Roe, Maher U. abortion “recognize ing a constitution cases that the Court’s abortion important making protected ally kinds of ‘in certain interest compulsion,”quoting governmental Wha decisions’free from (1977)); also Harris v. see Roe, len v. U. S. Thornburgh College v. American S., 312; McRae, 448 U. (1986); Gynecologists, 747, Obstetricians (Stewart, concurring). J., S., at 169-170 Wade, Roe v. 410 U. injecting pertinent By suppressing medically information message ideological unrelated considerations a restrictive places formidable obsta- health, the of maternal Government path X clients’ freedom of choice of Title cles rights. thereby their Fifth Amendment violates challenged provi- crystal aim of It is clear noticing majority escape cannot sions—an aim the —is perform simply funds are not used to to ensure that federal abortions, of abortion.” “reduce the incidence but to (in (1990) “family planning”). As re- definition CFR 59.2 require physicians X and above, Title the counted pertaining only provide to child- information counselors to irrespec- pregnant prenatal for care birth, to refer a woman upon inquiry, situation, and, her medical direct tive of “appropriate respond an method” of that abortion is not to family planning. speech, message conveyed this forced The undeniable it, is that the one that the Title client will draw from nearly always improper option. Al- is an medical abortion strictly though physician’s words, fact, her controlled wholly particular by the unrelated to her Government reasonably the Title X client will situation, medical construe right professional forgo her an them as advice to obtain many patients, abortion. As would most rational these preg- perceived carry will followthat advice and their women nancy despite contrary term, their needs to the and de- safety spite procedure major- the abortion the vast ity delayed by regulations’ mandatory Others, of them. prevented acquiring prenatal will be from abortions referral, during period process medically which the is sound and constitutionally protected. regulations,

In view of inevitable effect of difficulty majority’s “[t]he that a woman en conclusion project provide counters when a Title X does not abortion counseling position or referral leaves her no different than have if the had not enacted she would been Government Title contrary X,” ante, at is insensitive and to common experience. purpose human Both the result of chal deny ability voluntarily lenged regulations are women the destiny. procreative women, their For these to decide will have the freedom to choose as Government surely obliterated outright. as if it had banned abortions The denial of consequence poverty this freedom is not a but of the Gov information it ernment’s ill-intentioned distortion of has cho provide. sen to liability, recog tort commentators have the context of common-law person in duty go difficulty “If to the of a nized: there is no assistance any peril, duty there avoid affirmative acts which make least his 218 self-determination that bodily obstacles to

The substantial they because are doubly offensive impose the regulations very spoken by physi- the words by effected manipulating the society, our to their patients. cians and counselors a relationship embodies unique doctor-patient dialogue science and the nature medical trust. specialized decisions attendant to health-related emotional distress often confidence, and complete their requires patients place the of medical lives, professionals. in hands very often their a aid not for medication or only diagno- seeks physician’s One and vital professional judgment, but also for sis, guidance, each of us attaches pro- Accordingly, emotional support. the spo- words advice authority found and importance the ken physician. jealously that we have so guarded

It is for this reason intrusion. “[I]n from dialogue governmental doctor-patient Roe repeatedly we have ‘stressed cases subsequent in consulting both with the role of the physician, central abortion, or not to have an woman about whether be carried out.’” how abortion was to determining any Franklin, Colautti 439 Akron, 462 at S., quoting U. (1979). 476 at Thornburgh, S., also U. S. See U. of the Secretary’s regulations 763. The majority’s approval our repeated warnings regulations flies in the face of in an undesired attending physician to “confine tending of his practice profes- straitjacket and uncomfortable Planned Parenthood Central Mo. sion,” endure. cannot n. 52, 67, Danforth, U. S. in Akron distinguish holdings our majority attempts hoe basis Thornburgh post governmental true, course, physician ac- . . . The same is who situation worse. charity will be liable for a failure cepts patient. Such a defendant then W. protection plaintiff’s interests.” use care for reasonable Keeton, Keeton, Owen, Dobbs, & D. and Keeton on Law D. R. Prosser omitted). 1984) (footnotes (5th 56, p. This observation ed. Torts appropriate the cases bar. equally seems doctor-patient dialogue intrusions into invalidated applied physicians jurisdiction those all within a cases pertain while the now the Court to the before employed professionals narrow class of health care at Title X projects. rights protected by Ante, at 202. But the the personal rights. Loving Virginia, Constitution are v. 388 (1948). (1967);Shelley v. Kraemer, 1, U. S. U. S. liberty deprivation by And for the individual the woman, the Government is no less substantial because it affects few many. It rather than cannot be that an otherwise uncon- infringement stitutional of choice is made lawful it because only pregnant touches some of the Nation’s women and not all of them. manipulation doctor-patient dialogue achieved

through Secretary’s regulations clearly an effort “to making physi that, deter a woman from a decision with her Thornburgh, cian, S., is hers to make.” 476 U. at 759. As such, it violates the Fifth Amendment.6

h-H > right every In haste further to its restrict woman to reproductive bodily integrity, control her freedom and majority disregards principles established of law and contorts preordained this Court’s decided cases to arrive at its result. majority professes speech to leave undisturbed the free protections society upon rely, which our has come to but one must wonder what force the First Amendment retains if it is manipulation by read to countenance the deliberate the Gov- 6Significantly, interprets challenged regulations Court to allow project seriously a Title to refer a woman whose health would be endan Ante, gered by pregnancy provider. continued to an abortion at 195. To adopt interpretation hold otherwise would be to an that would cer most See, tainly patient’s right process. g., a violate to substantive due e. (1982); Romeo, Youngberg v. Revere v. 457 U. S. 307 Massachusetts Gen eral Hospital, argu 463 U. S. 239 The Solicitor General at oral ment, however, interpreta afforded the a far less charitable Arg. tion. 44-47. See Tr. of Oral physician, dialogue her a between woman

ernment of the right pro- leaving technically intact the fundamental While relentlessly “through a Wade, Court, Roe tected S.,U. at 341 McRae, 448 catechism,” formalistic (Mar- right’s dissenting), again has rendered once J., shall, Reproductive nugatory. Health Webster See substance concurring part (opinions S., Services, U. nearly dissenting part). noxious as This as is course directly, right overruling unen- if a is found to be Roe attempts by government flagrant against forceable, even right This, fear, I it at all. then ceases it, circumvent may today’s decision. be the effect Stevens, dissenting. Justice paid my opinion, sufficient attention has not Court controlling language statute or to the consistent

to the responsible interpretation the statute the cabi- accorded years. during four different Presidencies net officers Planning “Family Services and text of the The relevant unchanged Population has remained Act of 1970” Research preamble to the. 1504. The enactment. Stat. since its passed: was states that it Act by expanding, public promote im-

“To health and welfare planning coordinating family proving, better the population activities of the Federal services and research purposes.” Ibid. Government, and for other congressional purposes emphasizes im- the The declaration educating family planning public portance serv- the about n purpose § part, states, 2 of the Act in Thus, ices. Act is: “(1) making comprehensive voluntary fam- assist readily persons ily planning all de- available to services siring services; such

“(5) readily develop information and make available materials) family planning (including on educational to; population growth persons desiring all such informa- §300 (Congressional 42 U. tion.” Purpose). S. C. Declaration of statutory emphasis making contrast to on relevant readily public, information available to the con- the statute suggestion no tains intended to authorize the suppression censorship any by any or information Govern- employee by any grant recipient. ment provision 6 of the Act Section authorizes the of federal support operation funds to the establishment and of volun- tary family planning projects. empowers The section also Secretary promulgate regulations imposing conditions grant recipients grants to ensure that “such will be effec- ” 300a-4(b). tively purposes utilized for for which made. Secretary Not a word the statute, however, authorizes impose any restrictions on the in- dissemination truthful professional by grant recipients. formation or advice “prohibition” only The word is used once in the Act. Sec- tion which adds the Public Health Act new Service covering subject population X, Title untary planning programs, research and vol- following provision:

includes “PROHIBITION OF ABORTION appropriated “Sec. 1008. None of the funds under programs title this shall used is a where abortion family planning.” method of 84 Stat. 1508, U. C.S. § 300a-6. prohibition statute,

Read the context of the entire this is plainly at conduct, directed rather than the dissemination of by potential grant recipients. information or advice, regulations original promulgated by The 1971 the Secre- tary interpreted Health, Education, Welfare so the “ ‘contemporaneous [the] statute. This construction of stat- by charged responsibility setting the ute men with the its ” machinery particular respect. in motion’ is entitled to See Development Workers, Power Reactor Co. v. Electrical (1961); 161, Tallman, Udall 396, U. S. (1966); Peo- Lincoln America Central Aluminum Co. (1984). regula- ples’ Utility The Dist., 467 U. S. grant recipients had that the kind of services tions described funding, eligible provide but for federal in order to be to regulate of ad- they purport kinds or restrict the to did not recipients might make available that vice or information governing Conforming language of the to the clients. their provided project “[t]he regulations will statute, the family planning.” provide 42 CFR a method of abortions as added). §69.5(a)(9) (1972)(emphasis itself, Like the statute speech. regulations prohibited conduct, not the by regulations promulgated in 1986 same is true of They Secretary also Human Services. of Health and performing recipients prohibited grant but abortions from speech. any purport mandate kind to censor or did not (1986). §§59.1-59.13 See 42 CFR Secretary adopted by entirely approach new by my statute. The view, authorized not, in 1988was change policy merely in a reflect did not new Secretary been authorized had determination Congress A. Inc. v. Natural Cf. Chevron U. S. to make. Inc., Council, U. S. Resources Defense assumption policymaking they represented an Rather, delegated Congress responsibility to the Secre- had not (“If tary. clear, is the intent id., at 842-843 See court, as well as the matter; for the the end of the is unambiguously expressed give in- agency, effect must censorship society Congress”). that abhors tent of traditionally highest placed policymakers have in which it unrealistic to con- communicate, the freedom to value on implicitly authority regulate statutory conduct clude that regulate speech. the Executive authorized authorize I that the 1970Act did not am convinced Because recipients speech grant Secretary or their censor employees, challenged regulations I would hold the invalid judgment Appeals. reverse of the Court of ambiguous, thought if I

Even were however, statute I reach would the same result for the reasons stated in Jus- dissenting opinion. explains, As she also tice O’Connor’s majority if a Court had reached this it result, would improper to comment on constitutional issues that parties majority have debated. Because the has reached questions, out to decide the I constitutional am however, persuaded concluding is correct Justice Blackmun majority’s arguments response. that the merit a I am also persuaded correctly analyzed has Blackmun Justice joined these issues. I have II therefore Parts and III of his opinion. O’Connor,

Justice dissenting. “[W]here acceptable an otherwise construction of a stat problems, ute would raise serious constitutional the Court problems will construe the statute to such avoid unless such plainly contrary Congress.” construction is to the intent of Corp. Edward J. DeBartolo Florida Coast Build Gulf ing Council, & Construction Trades U. S. explained why has well this Justice Blackmun

longstanding statutory applies canon construction in these join I cases, and I Part II Part of his dissent. demonstrates why challenged regulations, which constitute the Secre- § tary’s interpretation Public Health Service Act, 300a-6, 84 Stat. U. “raise S. C. serious con- problems”: regulations place stitutional content-based speech recipients, restrictions of Title fund restric- precisely speech concerning tions directed one of most “the divisive contentious issues our Nation has faced in years.” Ante, at recent 215. may conclude,

One well as Justice Blackmun does Part II, unconstitutional for this join dissent, however, I reason. do not Part II of the join I III, the same reason that do not Part which Jus- 224 regulations are uncon concludes that the

tice Blackmun con the Fifth Amendment. canon of stitutional under correctly applies here is struction that Justice Blackmun practice large part upon grounded not time-honored of our unnecessarily. reaching questions See DeBar constitutional judicial supra, rule re tolo, “It is a fundamental of 575. ques . will not reach constitutional straint . . that this Court necessity deciding Three of them.” in advance of the tions Engi Tribes Fort Berthold Reservation v. Wold Affiliated neering, (1984). Alexan- C., P. U. 157 See also 138, 467 S. (1972);Burton v. Louisiana, 625, der 405 S. 633 United v. U. (1905); Liverpool, New York States, 283, 295 & Philadelphia Emigration, Co. v. Commissioners 113 S. S. (1885)(In jurisdiction pro- its 33, the exercise of U. S. States, laws Court nounce unconstitutional of United this rigidly anticipate ques- adhered” to the rule “never to “has necessity of in advance of the decid- tion of constitutional law it”). ing power invali-

This Court acts at limits its when it grounds. recognition of our dates a law on constitutional place, “great scheme, we must act with the constitutional delicacy” telling gravity branch that when coordinate absolutely prohibited its are absent constitutional actions Hospital District amendment. Adkins Children’s Blodgett Columbia, S. See also U. (1927) (Holmes, con- Holden, J., U. S. 147-148 only curring). Secretary cases, In these we need tell the interpretation that his not a reasonable pass Congress that it cannot such statute; we need tell statutory Congress legislation. solely grounds, If we rule question by leg- power constitutional retains the force the islating explicitly. may It noth- more instead choose do ing. Congress; left we should not That decision should be it it do it. tell what cannot do before has chosen to enough litigation It in this that neither the conclude Secretary’s compels language history in- nor the terpretation, interpretation raises serious First I Amendment concerns. this alone, On basis would reverse judgment Appeals of the Court invalidate the chal- lenged regulations.

Case Details

Case Name: Rust v. Sullivan

Court Name: Supreme Court of the United States

Date Published: May 23, 1991

Citation: 500 U.S. 173

Docket Number: 89-1391

Court Abbreviation: SCOTUS