Inproviding subsidies and benefits, the government is, of course, entitled to set up regulations as to how its funds are administered. But can the government require the suspension of First Amendment rights as a condition for receiving and implementing those subsidies and benefits?

That question is before the Supreme Court this term in Rust v. Sullivan, which deals with, among other things, a 1988 change in rules under Title X of the 1970 Public Health Service Act. That Title provides funds for family-planning clinics. More than 4 million low-income women attending 3,900 clinics around the country depend on these programs. The money involved will be about $140 million next year.

From the beginning of Title X, no abortions could be performed by these clinics -- using federal funds. But they were allowed to give non-directive information about abortions. (They were not to be advocated, but if a woman asked, facts and referrals could be given.) In 1988, however, the Department of Health and Human Services prohibited all reference to abortion in the clinics it funds.

The clearest statement of the extent of this gag rule -- and its effect -- has been made by a judge in the Second Circuit Court of Appeals, Amalya Kearse, in her scathing dissent against a decision upholding the constitutionality of this enforced silence. (Two circuit courts of appeal, the First and the Tenth, have overturned the regulations. The Supreme Court is reviewing the affirmation by the Second Circuit.)

Kearse notes with sardonic wonder that her colleagues insist that these restrictions on what a doctor or counselor can say to a patient do not discriminate against speech on the basis of its content, its viewpoint.

She then goes on to further dissect the Second Circuit majority decision:

"The regulations ... prohibit the physician in a Title X facility from communicating to his patient frank and complete advice if it involves consideration of abortion."

Ethically, a physician is obligated to give complete advice to a patient. Accordingly, these regulations directly interfere with the patient-doctor relationship and could result in a woman's health being seriously endangered if she doesn't know about pregnancy problems that might require an abortion -- and if she doesn't know where to get one that is safe.

After all, as Judge Kearse points out, a woman does have "the constitutionally protected right, recognized in Roe v. Wade, to choose whether or not she will have an abortion." It is eerie for the federal government to prevent physicians in Title X family clinics from discussing a constitutionalright within its walls.

In forbidding any mention of this right, Kearse continues, the gag rule requires the physician, "in referring the patient to other health-care providers, to identify only prenatal care facilities. If his pregnant patient raises the subject of abortion, he is required to tell her that he cannot give her any advice or counseling on the subject."

The consequence of turning federally funded family clinics into anti-free speech zones, says Judge Kearse, is that "in some cases, the information ban will delay the appropriate education of the patient. ...

"In some cases, the patient will never be fully informed, for as the Secretary {Dr. Louis Sullivan} has acknowledged, 'for many clients, family planning programs are their only continuing source of health information and medical care.' " To which Kearse adds, "The patient cannot make an informed choice between the two options when she cannot obtain information as to one of them."

How did Dr. Sullivan -- a man usually somewhat sensitive to constitutional considerations -- get himself into being the censor-as-defendant in this case? Judge Kearse quotes from a statement by Sullivan when this case was before the District Court:

"It is certainly true that one of the prime reasons for these regs is a stricter enforcement of the separation of abortion as family planning from Title X programs. This is a matter of policy. It is a matter of politics."

Many in the antiabortion movement are protective of the First Amendment, for they have benefited from it -- often despite fierce attempts by pro-choicers to silence them with RICO suits and other bludgeons. Yet many pro-lifers are rooting for the Supreme Court to affirm the majority decision of the Second Circuit supporting these anti-free speech regulations.

Have the pro-lifers never heard of the slippery slope? When government can force one group to give up its First Amendment rights to obtain benefits, all other groups are vulnerable.