Rust v. Sullivan

The Supreme Court divided sharply over the issues presented by Rust. Writing for the one-vote majority, Chief Justice Rehnquist declared that the 1988 regulation was an acceptable interpretation of the 1970 statute. Because it provided funds for family planning while prohibiting assistance for abortion, the statute was ambiguous. But it was the Department of Health and Human Services' job to administer the law, and their regulation did not violate Congress' mandate. The courts, wrote Rehnquist, should defer to legislative intent.

Adding to this line of argument, Rehnquist went on to justify the regulation by citing the doctrine of unconstitutional conditions, which holds that government can impose conditions--even seemingly unconstitutional ones--on recipients of federal funds. The goal of such conditions is to insure that the monies are spent solely for the intended purposes:

The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights . . . By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has . . . not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc . . . The same principles apply to petitioners' claim that the regulations abridge the free speech rights of the grantee's staff.

Just as Title X does not prohibit fund recipients from performing abortions elsewhere, the new regulation does not prevent clinic professionals from giving abortion advice in other locations. Rehnquist conceded that it would be simpler for women to decide whether or not to choose abortion if information were available at their family planning clinics. But the constitutionally granted right to abortion did not, he maintained, require the government to change the mandate of its program.

On its face, Rust seemed to be another step in the Court's progress towards overturning Roe v. Wade. Justice Souter, who was participating in an abortion-related case for the first time, cast his vote with the usual anti-abortion coalition voting to uphold the gag rule. However, the closeness of the vote owed a great deal to the fact that Justice O'Connor, often considered a member of the Court's conservative wing, had dissented. The future of a woman's right to abortion remained in doubt.