The Supreme Court yesterday agreed to decide the constitutionality of regulations preventing federally funded family planning clinics from providing poor women with any information about abortion.
The court said it would review a 2 to 1 decision by the federal appeals court in New York upholding the rules. The regulations prohibit family planning clinics that receive federal funds from offering abortion counseling or referral, and they require that the clinics be kept "physically and financially separate" from facilities providing such "prohibited activities."
The case, following on a line of decisions restricting poor women's access to abortion, will once again embroil the court in the controversial issue of abortion. The question of whether the regulations violate the freedom of speech guarantee also has broad implications outside the abortion context in areas such as federal funding of the arts where there are restrictions on how funds can be used.
Under the regulations, doctors or counselors at federally funded clinics asked about abortion by a pregnant patient may tell her only that abortion is not considered "an appropriate method of family planning" and refer her for prenatal care.
If a woman asks for a list of abortion providers, the clinics are barred from offering that information, and must instead give her "a list of available providers that promote the welfare of mother and unborn child." Clinics whose principal business is performing abortions may not be included on the list.
The 1970 law establishing federal funding for family planning clinics, known as Title X, prohibits the use of the money "in programs where abortion is a method of family planning." The funds -- currently about $200 million annually -- go to more than 3,900 clinics across the country serving nearly 5 million low-income women each year.
Until 1988, when the rules under review were adopted by the Reagan administration, the law had been interpreted to bar clinics from performing abortions but to allow them to provide "non-directive counseling," informing pregnant women about the option of abortion and referring them to abortion providers.
The American Civil Liberties Union, representing family planning clinics and doctors, filed suit along with the city and state of New York challenging the new regulations, arguing that they are not authorized by the Title X statute.
In addition, they contended, the rules impose an impermissible burden on women's constitutional right to abortion and -- by discriminating on the basis of viewpoint -- infringe on the free speech rights of both health-care providers and women.
The 2nd U.S. Circuit Court of Appeals in New York upheld the rules last November, but in Boston the 1st Circuit struck them down in March on First Amendment and privacy grounds. Two district courts also have invalidated the regulations.
The Bush administration said it would be "appropriate" for the Supreme Court to hear the New York case, Rust v. Sullivan, even though it agreed with the decision, noting that it had planned to ask the justices to review the Boston ruling.
The court in New York, in a decision by Judge Ralph K. Winter Jr., acknowledged that the regulations "may hamper or impede women in exercising their right of privacy in seeking abortions." But Winter said that was "constitutionally irrelevant" so long as the government's action did not create "affirmative legal barriers to access to abortion."
He noted, for example, that the Supreme Court last year in Webster v. Reproductive Health Services upheld Missouri's prohibition on performing abortions in public facilities.
Winter also rejected the argument that the regulations trample on free speech rights, saying that they did not discriminate on the basis of viewpoint.
In a dissenting opinion, Judge Amalya L. Kearse rejected that analysis and said the regulations went far beyond refusals to provide public funding for abortions for poor women, which have been upheld by the high court.
"By prohibiting the delivery of abortion information and prohibiting communication even as to where such information can be obtained, the present regulations deny a woman her constitutionally protected right to choose," Kearse said. "She cannot make an informed choice between two options when she cannot obtain information as to one of them."