Limiting Governmental Support
The most perverse aspect of abortion law in the United States is that it affects predominately poor women. The Supreme Court has ruled that it is not discriminatory for a governmental agency to refuse to pay for medical care that is otherwise available in the medical marketplace. Most states and the federal government will not allow the use of governmental funds to pay for abortions or abortion referral services. The restrictions on the federal Title X family planning grants are typical:
Because Title X funds are intended only for family planning, once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child.… A Title X project may not use prenatal, social service or emergency medical or other referrals as an indirect means of encouraging or promoting abortion as a method of family planning, such as by weighing the list of referrals in favor of medical care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by “steering” clients to providers who offer abortion as a method of family planning. (42 CFR sec. 59.8)
These restrictions were recently upheld by the U.S. Supreme Court, which found that the regulations did not interfere with medical care practitioners’ right of free speech. Referring to its previous decisions upholding the right of the government not to fund abortions, the Court reiterated the rule that refusing to fund the exercise of a right is not the same as prohibiting that right. As with other voluntary employment situations, the Court found that the employer has the right to restrict the workplace activities:
The same principles apply to petitioners’ claim that the regulations abridge the free speech rights of the grantee’s staff. Individuals who are voluntarily employed for a Title X project must perform their duties in accordance with the regulation’s restrictions on abortion counseling and referral. The employees remain free, however, to pursue abortion related activities when they are not acting under the auspices of the Title X project. The regulations, which govern solely the scope of the Title X project’s activities, do not in any way restrict the activities of those persons acting as private individuals. The employees’ freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority. [Rust v. Sullivan, 500 U.S. 173 (1991). ]
The Court found that the regulations were limited to a prohibition on abortion as a means of birth control. It specifically found that the personnel in Title X–funded facilities were free to discuss abortion and refer patients when the abortion was medically necessary:
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 sec. 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. [ Rust v. Sullivan at 175.]
The Court was careful to distinguish Title X regulations from a more general prohibition on abortion counseling:
Nor is the doctor–patient relationship established by the Title X program sufficiently all-encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice. The program does not provide postconception medical care, and therefore a doctor’s silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her. The doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program.
These restrictions have been suspended by executive order of the president.