Rust v. Sullivan

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Rust v. Sullivan
Seal of the United States Supreme Court.svg
Argued October 30, 1990
Decided May 23, 1991
Full case name Irving Rust, et al., Petitioners v. Linus W.— Sullivan, Secretary of Health and Human Services; New York, et al., Petitioners v. Linus W. Sullivan, Secretary of Health and Human Services
Citations 500 U.S. 173 (more)
111 S. Ct. 1759; 114 L. Ed. 2d 233; 1991 U.S. LEXIS 2908; 59 U.S.L.W. 4451; 91 Cal. Daily Op. Service 3713; 91 Daily Journal DAR 6006
Prior history Summary Judgment for defendant, 690 F. Supp. 1261 (S.D.N.Y. 1988); affirmed, 889 F.3d 401 (2d Cir. 1989)
Health and Human Services regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion do not violate statute, First Amendment, or Fourth or Fifth Amendment.
Court membership
Case opinions
Majority Rehnquist, joined by White, Scalia, Kennedy, Souter
Dissent Blackmun, joined by Marshall; Stevens (parts II, III); O'Connor (part I)
Dissent Stevens
Dissent O'Connor
Laws applied
U.S. Const. amends. I, V; Public Health Service Act, 42 U.S.C. §§ 300300a-8

Rust v. Sullivan, 500 U.S. 173 (1991), was a United States Supreme Court case decided in 1991 that found restrictions on funding with regard to abortion counseling to be constitutionally permissible.


The case concerned the legality and constitutionality of Department of Health and Human Services regulations on the use of funds spent by the U.S. federal government to promote family planning (Title X). With Title X of the Public Health Service Act, Congress prohibited the funds from being "used in programs where abortion is a method of family planning." In 1988, the Republican-appointed Secretary of Health and Human Services issued new regulations that prohibited projects receiving these funds from not only providing abortions, but also counseling, advising, or promoting the idea that a woman seek an abortion. These regulations were challenged on the grounds that they were not permissibly within the scope of the statute and that they violated the First, Fourth, and Fifth Amendments to the U.S. Constitution.

Supreme Court Decision[edit]

In its decision, the Court ruled that the regulations did not violate the legislation in question or the Constitution. Chief Justice William Rehnquist wrote for the majority in finding that the regulations were a permissible construction of statutory law, that they do not violate the First Amendment free speech rights of the recipients, and that they do not violate the Fifth Amendment right of women to choose whether to terminate a pregnancy as established in Roe v. Wade.


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, required all recipients of the federal funding to: (1) Not engage in any counseling regarding abortion as a method for family planning; (2) Maintain an objective integrity and independence from abortion activities by the use of separate facilities, personnel, and accounting records.

The Supreme Court held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments.

(1) The regulations are a permissible construction of Title X. 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. Section 1008's abortion prohibition is constitutional because the Government may make a value judgment favoring childbirth over abortion and implement that judgment by using subsidies of public funds. (Maher v. Roe, 432 U. S. 464, 432 U. S. 474.) The use of public provided funds (subsidies) by the Government to support one viewpoint over another is not considered “discrimination” simply by the Government taking a particular viewpoint over another.

(2) The Secretary's construction of Title X must be accorded substantial deference by this Court because: (a) It is the agency charged with administering Title X and (b) the Court cannot look to § 1008 of Title X for interpretation,. Section 1008 is ambiguous because it does not speak directly to abortion issues regarding counseling; does not provide any guidance as to what is meant by “program integrity”; and the Title neither defines § 1008's "method of family planning" phrase, nor enumerates what types of medical and counseling services are entitled to funding. The Secretary’s construction of § 1008 will not be disturbed since it is: (a) a plausible construction of the statute's plain language; (b) does not conflict with Congress' expressed intent; and (c) the legislative history is either ambiguous as to Congress' intent on these issues or supported by the Secretary’s interpretation. The legislative history demonstrates that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. An agency must be given ample latitude to adapt its rules to changing circumstances, thus, a revised or interpretation that is different from previous interpretations deserve deference if it compliments the changes in circumstances. The Secretary's change of interpretation is amply supported by a "reasoned analysis" as the new regulations are more in keeping with Title X’s original intent, which is supported by the testimony of client experience under the prior policy.

(3) The Doctors' argue that if the Government chooses to subsidize one viewpoint over a subject (here, abortion), then it must also balance that viewpoint by subsidizing its opposite. However, the Doctors’ argument has clearly been rejected by this Court. (See, e.g., Regan v. Taxation With Representation of Wash., 461 U. S. 540.) 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, 468 U. S. 400; Regan, supra, 461 U.S. at 461 U. S. 546, distinguished).

(4) 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. 720, 497 U. S. 726, that question need not be resolved here, since the Title X program regulations do not significantly impinge on the doctor-patient relationship. Pp. 500 U. S. 192-200.

(5) 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. 490, 492 U. S. 510.) 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 Harris v. McRae) 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 City of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians and Gynecologists. A doctor's ability to provide abortion-related information and a woman's right to receive such information remains unfettered outside the context of the Title X project.

Additional Notes[edit]

One attorney for the government in this case was Chief Justice William Rehnquist's successor, John Roberts, who was then Principal Deputy Solicitor General of the United States. A brief for the case, of which Roberts was a coauthor, argued for overruling Roe:

"We continue to believe that Roe v. Wade was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution." [1]

The brief in question lists the following authors: Michael J. Astrue, General Counsel; Joel Mangel, Deputy Chief Counsel; Carol C. Conrad, Attorney, Department of Health and Human Services; Kenneth W. Starr, Solicitor General; Stuart M. Gerson, Assistant Attorney General; John G. Roberts, Jr., Deputy Solicitor General; Jeffrey P. Minear, Assistant to the Solicitor General; Anthony J. Steinmeyer, Lowell v. Sturgill, Jr., Attorneys.

See also[edit]

Further reading[edit]

  • Fitzpatrick, Michael (1992). "Rust Corrodes: The First Amendment Implications of Rust v. Sullivan". Stanford Law Review (Stanford Law Review, Vol. 45, No. 1) 45 (1): 185–227. doi:10.2307/1228987. JSTOR 1228987. 
  • Kagan, Elena (1992). "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion". The Supreme Court Review (The Supreme Court Review, Vol. 1992) 1992: 29–77. JSTOR 3109667. 
  • Leedes, G. C. (1991). "The discourse ethics alternative to Rust v. Sullivan". University of Richmond Law Review 26 (1): 87–143. PMID 11659547. 

External links[edit]