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.
