Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

Syllabus

RUST, etc., et al., PETITIONERS v. W. SULLIVAN, SECRETARY OF HEALTHAND HUMAN SERVICES

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

No. 89-1391. Argued October 30, 1990 — Decided May 23, 1991

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Section 1008 of the Public Health Service Act specifies that none of the federal funds appropriated under the Act's Title X for family-planning services "shall be used in programs where abortion is a method of family planning." In 1988, respondent Secretary of Health and Human Services issued new regulations that, inter alia, prohibit Title X projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records. Before the regulations could be applied, petitioners — Title X grantees and doctors who supervise Title X funds — filed suits, which were consolidated, challenging the regulations' facial validity and seeking declaratory and injunctive relief to prevent their implementation. In affirming the District Court's grant of summary judgment to the Secretary, the Court of Appeals held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments.

Held:

1. The regulations are a permissible construction of Title X. Pp. 6-15.

(a) Because 1008 is ambiguous in that it does not speak directly to the issues of abortion counseling, referral, and advocacy, or to "program integrity," the Secretary's construction must be accorded substantial deference as the interpretation of the agency charged with administering the statute, and may not be disturbed as an abuse of discretion if it reflects a plausible construction of the statute's plain language and does not otherwise conflict with Congress' expressed intent. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844. Pp. 7-8.

(b) Title X's broad language plainly allows the abortion counseling, referral, and advocacy regulations. Since the Title neither defines 1008's "method of family planning" phrase nor enumerates what types of medical and counseling services are entitled to funding, it cannot be said that the Secretary's construction of the 1008 prohibition to require a ban on such activities within Title X projects is impermissible. Moreover, since the legislative history is ambiguous as to Congress' intent on these issues, this Court will defer to the Secretary's expertise. Petitioners' contention, that the regulations are entitled to little or no deference because they reverse the Secretary's long-standing policy permitting nondirective counseling and referral for abortion, is rejected. Because an agency must be given ample latitude to adapt its rules to changing circumstances, a revised interpretation may deserve deference. The Secretary's change of interpretation is amply supported by a "reasoned analysis" indicating that the new regulations are more in keeping with the statute's original intent, are justified by client experience under the prior policy, and accord with a shift in attitude against the "elimination of unborn children by abortion." Pp. 8-11.

(c) The regulations' "program integrity" requirements are not inconsistent with Title X's plain language. The Secretary's view, that the requirements are necessary to ensure that Title X grantees apply federal funds only to authorized purposes and avoid creating the appearance of governmental support for abortion-related activities, is not unreasonable in light of 1008's express prohibitory language and is entitled to deference. Petitioners' contention is unpersuasive that the requirements frustrate Congress' intent, clearly expressed in the Act and the legislative history, that Title X programs be an integral part of a broader, comprehensive, health-care system that envisions the efficient use of non-Title X funds. The statements relied on are highly generalized and do not directly address the scope of 1008 and, therefore, cannot form the basis for enjoining the regulations. Indeed, the legislative history demonstrates that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. Moreover, there is no need to invalidate the regulations in order to save the statute from unconstitutionality, since petitioners' constitutional arguments do not carry the day. Pp. 11-15.

2. The regulations do not violate the First Amendment free speech rights of private Title X fund recipients, their staffs, or their patients by impermissibly imposing viewpoint-discriminatory conditions on Government subsidies. There is no question but that 1008's prohibition is constitutional, since the Government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds. Maher v. Roe, 432 U.S. 464, 474. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another. Similarly, in implementing the statutory prohibition by forbidding counseling, referral, and the provision of information regarding abortion as a method of family planning, the regulations simply ensure that appropriated funds are not used for activities, including speech, that are outside the federal program's scope. Arkansas Writers' Project, Inc. v. Rag land, 481 U.S. 221, distinguished. Petitioners' view that if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights, has been soundly rejected. See, e. g., Regan v. Taxation With Representation of Wash., 461 U.S. 540. On their face, the regulations cannot be read, as petitioners contend, to bar abortion referral or counseling where a woman's life is placed in imminent peril by her pregnancy, since it does not seem that such counseling could be considered a "method of family planning" under 1008, and since provisions of the regulations themselves contemplate that a Title X project could engage in otherwise prohibited abortion-related activities in such circumstances. Nor can the regulations' restrictions on the subsidization of abortion-related speech be held to unconstitutionally condition the receipt of a benefit, Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. The regulations do not force the Title X grantee, or its employees, to give up abortion-related speech; they merely require that such activities be kept separate and distinct from the activities of the Title X project. FCC v. League of Women Voters of Cal., 468 U.S. 364, 400; Regan, supra, at 546, distinguished. Although it could be argued that the traditional doctor-patient relationship should enjoy First Amendment protection from Government regulation, even when subsidized by the Government, cf., e. g., United States v. Kokinda, 497 U. S. —, —, that question need not be resolved here, since the Title X program regulations do not significantly impinge on the doctor-patient relationship. Pp. 15-24.

3. The regulations do not violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion. Webster v. Reproductive Health Services, 492 U. S. —, —. That allocation places no governmental obstacle in the path of a woman wishing to terminate her pregnancy and leaves her with the same choices as if the Government had chosen not to fund family-planning services at all. See, e. g., Harris v. McRae, 448 U.S. 297, 315, 317; Webster, supra, at —. Nor do the regulations place restrictions on the patient/doctor dialogue which violate a woman's right to make an informed and voluntary choice under Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, and Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747. Unlike the laws invalidated in those cases, which required all doctors to provide all pregnant patients contemplating abortion with specific antiabortion information, here, a doctor's ability to provide, and a woman's right to receive, abortion-related information remains unfettered outside the context of the Title X project. The fact that most Title X clients may be effectively precluded by indigency from seeing a health-care provider for abortion-related services does not affect the outcome here, since the financial constraints on such a woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions, but of her indigency. McRae, supra, at 316. Pp. 24-27.

889 F. 2d 401, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which White, Kennedy, Scalia, and Souter, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall, J., joined; in Part I of which O'Connor, J., joined; and in Parts II and III of which Stevens, J., joined. Stevens, J., and O'Connor, J., filed dissenting opinions.

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Notes

1 Together with No. 89-1392, New York et al. v. Sullivan, Secretary of Health and Human Services, also on certiorari to the same court.