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Court upholds bar on abortion speech

By GREG HENDERSON

WASHINGTON -- The Supreme Court Thursday upheld regulations barring doctors at federally funded family-planning clinics serving many of the nation's poorest women from discussing abortion as a legal option with pregnant clients.

The court, in a 5-4 ruling, rejected the argument of doctors and the state of New York that new restrictions on the Public Health Act of 1970 violate the First Amendment free speech rights of health care workers, privacy rights of pregnant women and the will of Congress.

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'The government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion,' Chief Justice William Rehnquist wrote for the majority.

Rehnquist said the government has 'not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.'

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Newly appointed Justice David Souter, who refused to reveal his views on abortion during Senate confirmation hearings last summer, voted in the majority.

The court's only woman, Justice Sandra Day O'Connor, dissented.

The ruling in perhaps the most closely watched case of the court's 1990-91 term is tantamount to making abortion illegal for poor women, Justice Harry Blackmun wrote in the main dissent.

The court legalized abortion in its landmark 1973 Roe vs. Wade ruling.

'This is a course nearly as noxious as overturning Roe directly, for if a right (to an abortion) is found to be unenforceable, even against flagrant attempts by government to circumvent it, then it ceases to be a right at all,' wrote Blackmun. 'This, I fear, may be the effect of today's decision.'

The Public Health Act, commonly known as Title 10, authorizes the secretary of Health and Human Services to make grants to both private and public family planning clinics.

Title 10 provides some $200 million annually to 4,000 clinics nationwide, serving nearly 5 million low-income women per year. The law always has barred funding to groups that provided abortion as a means of 'family planning,' but until Thursday had allowed recipients of Title 10 funds to inform patients about abortion and even refer them to abortion providers.

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In 1988, the Reagan administration wrote new regulations barring any funding to groups that counseled women about abortions, told them where they might get an abortion or even told patients about abortion.

Two federal appeals courts struck down the regulations, but the 2nd U.S. Circuit Court of Appeals upheld them. However, it had barred their enforcement pending the outcome of the Supreme Court case.

Thursday's ruling means the regulations can now take effect nationwide. Many recipients of Title 10 funds -- including Planned Parenthood Federation of America, which operates 900 clinics -- have vowed to forego the federal money even if it means curbing services or shutting down clinics rather than abide by what they call 'gag rules.'

However, both the House and Senate have held hearings on bills that would nullify the new regulations, and Rep. Les Aucoin, D-Ore., Thursday said Congress will act to overturn the court's 'outrageous decision.'

'Burning a flag is protected free speech but advising a woman in a federally funded family planning clinic of her option to choose abortion is not?' asked Aucoin.

Eleanor Smeal, head of the Fund for the Feminist Majority, said the vote shows that Souter is the fifth justice willing to overturn Roe.

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'People have got to understand this is high noon for the right to a legal abortion,' Smeal said.

Kate Michelman, executive director of the National Abortion Rights Action League, called the total acceptance of the regulations an 'enormous shock, far worse than we feared.'

Blackmun said the opinion would have 'disastrous' results for a woman's right to an abortion.

'Both the purpose and result of the challenged regulations is to deny women the ability voluntarily to decide their procreative destiny,' wrote Blackmun. 'For these (poor) women, the government will have obliterated the freedom to choose as surely as if it had banned abortions outright.'

Under the new rules, clinics risk the loss of federal funds -- which in many cases keep the clinics operating and provide the only health care some poor women receive -- if their workers say more than 'the project does not consider abortion an appropriate method of family planning' when asked about abortion.

The government said the regulations correct abuses in Title 10, which was never intended to subsidize abortion.NEWLN: more

xxx subsidize abortion.

Rehnquist wrote that the regulations can be upheld in part because of a perceived public 'shift in attitude against the 'elimination of unborn children by abortion.''

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Operation Rescue, the militant arm of the anti-abortion movement, called the ruling 'another step towards making child-killing illegal in our nation and protecting women from exploitation.'

Many health care providers claim the regulations will make a mockery of free speech, medical ethics and congressional intent.

The state of New York, which handed out nearly $6 million in Title X grants in 1987-88, doctors, health clinics, groups supporting abortion rights and the federal government all had asked the court to review the matter.

In seeking high court review, New York noted that 15 percent of its family planning budget comes from Title 10 funds.

'In dictating what Title 10 physicians can say to their patients and what they cannot, the regulations violate the essence of informed consent and, as a result, destroy the integrity of the physician-patient relationship,' argued the American Public Health Association. 'It forces the health care professional to obfuscate answers to life and death questions.'

The regulations 'do not force the Title 10 grantee to give up abortion-related speech,' wrote Rehnquist. 'They merely require that the grantee keep such activities separate and distinct from Title 10 activities.'

He also wrote they do 'not significantly impinge upon the doctor- patient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold.'

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Blackmun wrote that it is 'crystal-clear' the regulations are aimed at reducing the 'incidence of abortion.'

'The undeniable message conveyed by this forced speech, and the one that the Title 10 client will draw from it, is that abortion nearly always is an improper medical option,' wrote Blackmun.

Rehnquist reasoned that when Congress 'established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and Fascism.'

The government argued that Title 10 was enacted three years before the Supreme Court even declared a woman had a legal right to an abortion, that it was intended as a pre-pregnancy program, and that women who go to a Title 10 clinic and find out they are pregnant will remain free to turn elsewhere for abortion information.

'(The) constitutional arguments, disrobed of their rhetoric, rest on the assertion that the government is obligated to subsidize abortion- related services,' the Justice Department said.

Rehnquist was joined in the majority by Souter and justices Byron White, Anthony Kennedy and Antonin Scalia.

Justice Thurgood Marshall joined Blackmun's dissent, while O'Connor and Justice John Paul Stevens joined Blackmun's dissent in part while writing their own shorter dissents.

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The 1970 act barred funding to groups that provided abortion as a means of 'family planning' but initially allowed recipients to tell patients about abortion as an option. Since 1981 it has required 'non- directive' counseling about abortion and referrals to abortion clinics.

The new regulations bar Title 10 recipients from spending even their own funds on abortion counseling unless that counseling is done in a physically separate facility.

A Title 10-funded program now must give a pregnant client a list of prenatal care providers that 'promote the welfare of ... (the) unborn child,' but cannot include those 'whose principal business' is abortions.

Opponents of the regulations said Title 10 functioned effectively for two decades by balancing the government's reservations about abortion with professional health care standards, allowing discussion of abortion without directly financing it.

But the government said it has 'consistently taken the position that Title 10 funds are not available to fund projects that 'promote or encourage' abortion,' and that the new regulations 'clarify the scope of this restriction.'

Thirteen states and the District of Columbia had asked the court to outlaw the regulations, noting that matching funds provided by the states also could be 'swept within the new rules.'NEWLN: ------NEWLN:89-1391 Dr. Irving Rust et al. vs. Dr. Louis SullivanNEWLN:89-1392 The State of New York et al. vs. Dr. Louis Sullivan

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xxx about abortion. The government said the regulations correct abuses in Title 10, which was never intended to subsidize abortion.

But many health care providers claim the regulations make a mockery of free speech, medical ethics and congressional intent.

The state of New York, which handed out nearly $6 million in Title X grants in 1987-88, doctors, health clinics, groups supporting abortion rights and the federal government all had asked the court to review the matter.

In seeking high court review, New York noted that 15 percent of its family planning budget comes from Title 10 funds.

'In dictating what Title 10 physicians can say to their patients and what they cannot, the regulations violate the essence of informed consent and, as a result, destroy the integrity of the physician-patient relationship,' argued the American Public Health Association. 'It forces the health care professional to obfuscate answers to life and death questions.'

The government noted Title 10 was enacted three years before the Supreme Court even declared a woman had a legal right to an abortion, that it was intended as a pre-pregnancy program, and that women who go to a Title 10 clinic and find out they are pregnant will remain free to turn elsewhere for abortion information.

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'(The) constitutional arguments, disrobed of their rhetoric, rest on the assertion that the government is obligated to subsidize abortion- related services,'the Justice Department said in its brief to the high court.

Rehnquist was joined in the majority by justices Byron White, Anthony Kennedy, Antonin Scalia and David Souter.

Justices Harry Blackmun, Thurgood Marshall, John Paul Stevens and the court's only woman -- Sandra Day O'Connor -- each dissented.

It is the first major abortion-related case to be heard by the Supreme Court since Souter joined it in October. He had refused to reveal his views on abortion during Senate confirmation hearings last summer.

The 1970 act barred funding to groups that provided abortion as a means of 'family planning' but initially allowed recipients to tell patients about abortion as an option. Since 1981 it has required 'non- directive' counseling about abortion and referrals to abortion clinics.

The new regulations bar Title 10 recipients from spending even their own funds on abortion counseling unless that counseling is done in a physically separate facility.

A Title 10-funded program now must give a pregnant client a list of prenatal care providers that 'promote the welfare of ... (the) unborn child,' but cannot include those 'whose principal business' is abortions.

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Opponents claimed Title 10 functioned effectively for two decades by balancing the government's reservations about abortion with professional health care standards, allowing discussion of abortion without directly financing it.

'This case presents a significant question whether the Constitution permits the federal government to both censor and compel speech within a federally subsidized doctor-patient dialogue in order to steer women, indiscriminately, toward childbirth over abortion,' wrote the American Civil Liberties Union.

But the government said it has 'consistently taken the position that Title 10 funds are not available to fund projects that 'promote or encourage' abortion,' and that the new regulations 'clarify the scope of this restriction.'

Thirteen states and the District of Columbia had asked the court to outlaw the regulations, noting that matching funds provided by the states also could be 'swept within the new rules.'NEWLN: ------NEWLN:89-1391 Dr. Irving Rust et al. vs. Dr. Louis SullivanNEWLN:89-1392 The State of New York et al. vs. Dr. Louis Sullivan

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