Court Hears Challenge to Abortion-Counseling Ban

By Liz Schevtchuk Armstrong — November 07, 1990 6 min read

WASHINGTON--Entering an abortion- and information-rights furor, the U.S. Supreme Court last week scrutinized rules that prevent federally funded family-planning clinics from providing abortion counseling and referrals to clients--often, school-age adolescents.

During oral arguments in the twin cases of Rust v. Sullivan (Case No. 89-1391) and New York v. Sullivan (No. 89-1392), lawyers for the Justice Department and New York State sparred over rules preventing such Title X clinics from “disseminating in any way materials ... advocating abortion” as a family-planning method.

“The government can’t suppress a particular kind of information,” Laurence H. Tribe, attorney for New York City, New York State, and various medical facilities, told the Justices.

Restricting what doctors tell their patients “is the impermissible suppression of information,” Mr. Tribe said, arguing that permitting mention of various medical options “is surely constitutional.”

“It’s strictly a First Amendment issue,” he said.

Defending the rules, Solicitor General Kenneth W. Starr argued that ''this case involves a federal program that is specialized.”

“It is a family-planning program,” he said. “It means preventive services” and not medical options for women already pregnant.

“The prohibition runs only to this program,” he added.

In addition to pitting state and local governments against the federal executive branch, the case has evoked concern among education-related groups about curbs on public agencies’ freedom to disseminate information. Opponents of the regulations include the National Education Association, the Freedom To Read Foundation, and the American Library Association.

The Title X family-planning program provides funding to about 4,000 clinics serving 4.3 million patients, including about 1.4 million teenagers, according to the federal Health and Human Services Department, which supervises the program and drew up the regulations. Title X had a budget of approximately $140 million in the 1990 fiscal year.

Both supporters and foes of legal abortion--at odds over the Title X rules--said that no school-based health clinic is a Title X recipient. However, Title X clinics often conduct educational programs in schools and support after-school projects, according to Rachael N. Pine, an American Civil Liberties Union lawyer involved in the case.

Irving Rust, a physician who is a principal party in one of the cases, said that 30 percent to 40 percent of his patients are adolescents.

“Many don’t even go on to get their diplomas,” said Dr. Rust, medical director of the Planned Parenthood Bronx Center clinic in New York City. “They look to us for information. They need it more.”

In last week’s session, some Justices asked whether Title X physicians could advise a patient with a pregnancy-related health hazard or refer her elsewhere in a medical emergency, or help a client with some medical condition not falling within the parameters of family planning.

The government seems to be “telling us that the Secretary [of Health and Human Services] in effect may preclude professional speech,” suggested the Court’s newest member, Associate Justice David H. Souter, whose comments were closely scrutinized by observers seeking clues to his stance on abortion.

Solicitor General Starr said that a doctor might use a “best medical judgment as long as the physician does not steer the patient to have an abortion. He should not be in the business of treating pregnancy.”

Giving advice on a non-family-planning medical query “will violate the terms of the [Title X] grant,” he maintained.

Over all, the scope of the Title X program “certainly tilts against abortion, there’s no doubt about that,” Mr. Starr said. Nonetheless, he added, facilities to which Title X clinics could refer clients for non-abortion care might include medical centers that, as a subsidiary part of their work, perform abortions.

The HHS rules, while barring the provision of information “advocating abortion,” also demand that Title X family-planning activities be ''physically and financially separate” from abortion services.

Since 1970, federal law on Title X has stipulated that “none of the funds appropriated under this Title shall be used in programs where abortion is a method of family planning.” The disputed rules, covering application of the Title X law, were promulgated by the Reagan Administration in 1988. Earlier policies had directed clinics to offer pregnant women information on a range of options, including prenatal care, adoption, and abortion.

In a friend-of-the court brief, the NEA, the library association, and other groups contended that a “prohibition on discussion, counseling, and referral for abortion services constitutes viewpoint-discrimination violative of the First Amendment.”

At a news conference, Mr. Tribe said that the constitutional ramifications of the eventual ruling might not be far-reaching, if the Justices focus on specifics of the cases at hand. “A limited ruling ... is quite possible,” he said.

Douglas Johnson, legislative director of the National Right to Life Committee, a leading anti-abortion group, predicted at a separate news conference that if the Court upholds the rules, the “alarmist rhetoric will dissipate” and most clinics will comply with the mandate.

Before the case reached the Supreme Court, appeals courts had isonflicting decisions.

In other action last week, the Court refused to review three education-related cases:

Lee’s Summit Reorganized School District v. Naylor (No. 90-391) focused on a refusal by suburban schools to accept transfer students, who are black, from the Kansas City, Mo., school district as part of a voluntary interdistrict-transfer plan, following a lengthy desegregation dispute.

A U.S. District Court had ruled in favor of the suburban districts and the state of Missouri. A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit sent the case back for trial in district court to determine whether the refusal was evidence of racial discrimination.

Through an earlier desegregation ruling, Jenkins v. Missouri, the state had been assigned the task of paying tuition and transportation costs for such transfer students.

In Winburn v. Bennington-Rutland Supervisory Union (No. 90, the U.S. Court of Appeals for the Second Circuit affirmed a federal district court’s ruling against a Vermont lawyer, D. Patrick Winburn, who had challenged the composition of a regional school union.

The policy-setting union consists of elected school-board members from the various towns in the union, with small towns enjoying as many votes as large ones. Mr. Winburn contested the voting arrangement as unfair.

A case from Aberdeen, Miss., Curlee v. Fyfe (No. 90-384), involved a public-school secretary, Mary Ann Fyfe, who was transferred to a menial job after removing her daughter from the school system and enrolling her in a private academy. Mrs. Fyfe alleged retaliation against her by Superintendent of Schools John Curlee and the Aberdeen Municipal Separate School District.

Determining that the school system had violated Mrs. Fyfe’s constitutional rights, the U.S. Circuit Court of Appeals for the Fifth Circuit vacated a district-court decision and ordered a trial to ascertain a remedy.

A version of this article appeared in the November 07, 1990 edition of Education Week as Court Hears Challenge to Abortion-Counseling Ban