Rust v. Sullivan

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In Rust v. Sullivan, 500 U.S. 173 (1991), the U.S. Supreme Court rejected a First Amendment challenge to regulations prohibiting entities that receive Title X grants for the operation of family-planning projects from engaging in abortion counseling or referrals. This decision was the only time newly confirmed Justice David Souter voted against abortion, and his vote provided the 5-4 margin of victory. Based on Justice Souter's position in this case, the liberal media began criticizing him, and he soon swung to the liberal side of the Court, whereupon the criticism stopped.

Rust v. Sullivan has been cited by more than 3000 court decisions. Future Chief Justice John Roberts successfully argued against the abortion side in this case, defeating liberal Professor Laurence Tribe who argued for the abortion side.

In Rust v. Sullivan, the U.S. Supreme Court held that, within "broad[] limits," when "the Government appropriates public funds to establish a program," it is "entitled to define the limits of that program" and to prohibit certain speech "to ensure that the limits of the federal program are observed." Id. at 193-194.

Distinguishing between the government's sovereign and non-sovereign functions, the Court explained that the case involved, not "a general law singling out a disfavored group on the basis of speech," but rather a "refus[al] to fund activities, including speech, which are specifically excluded from the scope of the project funded." Id. at 194-195. The Court noted that a recipient of funds "is in no way compelled to operate a Title X project" and may "avoid the force of the regulations ... simply [by] declin[ing] the subsidy." Id. at 199 n.5. The Court also indicated that the result would have been different if the program had involved property "traditionally open to the public for expressive activity" or "expressly dedicated to speech activity," id. at 200 (quoting Kokinda, 497 U.S. at 726), thereby suggesting that the program at issue could be viewed as a nonpublic forum.

Specific regulations upheld

The Court upheld three principal conditions on the grant of federal funds for Title X projects:

  • the regulations specified that a "Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning." 42 CFR § 59.8(a)(1) (1989). Title X projects must refer every pregnant client "for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child." The list may not be used indirectly to encourage or promote abortion, "such as by weighing the list of referrals in favor of health 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." Id. § 59.8(a)(3). The Title X project is expressly prohibited from referring a pregnant woman to an abortion provider, even upon specific request. One permissible response to such an inquiry is that "the project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion." Id. § 59.8(b)(5).
  • the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning." Id. § 59.10(a).
  • the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities. Id. § 59.9. To be deemed physically and financially separate, "a Title X project must have an objective integrity and independence from prohibited activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient." Id. The regulations provide a list of nonexclusive factors for the Secretary to consider in conducting a case-by-case determination of objective integrity and independence, such as the existence of separate accounting records and separate personnel, and the degree of physical separation of the project from facilities for prohibited activities. Id.

Rust v. Sullivan, 500 U.S. 173, 179-181 (1991).

Free speech issue

As explained by Judge Straub in dissent in All. for Open Soc'y Int'l, Inc. v. United States Agency for Int'l Dev., 651 F.3d 218, 249-50 (2d Cir. 2011):

In Rust, recipients of the family planning grants argued that the regulations restricting federal funds from being used for abortion services constituted impermissible viewpoint discrimination in favor of an anti-abortion position. 500 U.S. at 192. Relying on Taxation With Representation, they argued that because the government "continue[d] to fund speech ancillary to pregnancy testing in a manner that is not evenhanded with respect to views and information about abortion, it invidiously discriminates on the basis of viewpoint." Id. (internal quotation marks omitted). The Supreme Court rejected this challenge and found that Congress had not discriminated in favor of an anti-abortion position, but had "merely chosen to fund one activity to the exclusion of the other." Id. at 193. The Court reiterated that "'[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.'" Id. (quoting Maher v. Roe, 432 U.S. 464, 475, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977)). In other words, Rust was "not a case of the Government 'suppressing a dangerous idea,' but of a prohibition on a project grantee or its employees from engaging in activities outside of the project's scope," id. at 194. This was so even though it cannot be denied that the scope of the government-funded project in Rust necessarily limited recipients' ability to advocate a pro-abortion viewpoint within the scope of the government program.