• Last updated on November 11, 2022

The Supreme Court upheld a “gag rule” that imposed restrictions on abortion counseling in federally funded birth control clinics.

The Public Health Service Act of 1970 specified that no federal funds could be used to support abortion services as a form of family planning. In 1988 the Secretary of Health and Human Services issued three new regulations for the use of funds under the program: First, funded clinics were prohibited from recommending or encouraging abortions; second, clinics were prohibited from giving a pregnant woman any information about where to obtain an abortion; and third, clinics were required to provide pregnant women with a list of “providers that promote the welfare of the mother and the unborn child.” The clinics argued that the regulations were not authorized by Congress, that they violated the freedom of speech rights of the personnel in the clinics, and that they interfered with the right of a woman to obtain an abortion, as established under Roe v. Wade (1973).Abortion;Rust v. Sullivan[Rust v. Sullivan]Speech, freedom of;Rust v. Sullivan[Rust v. Sullivan]

By a 5-4 vote, the Supreme Court upheld the regulations. Speaking for the majority, Chief Justice William H. RehnquistRehnquist, William H.;Rust v. Sullivan[Rust v. Sullivan] wrote that “when the government appropriates public funds to establish a program it is entitled to define the limits of that program.” The government could make a value judgment favoring childbirth over abortion, and the First Amendment did not require it to subsidize all points of view. The gag rules did not require individuals to give up all abortion-related speech, but the rules only required that such speech must occur outside government-funded programs. The fact that the rules had a disproportionate effect on poor women was irrelevant. In regard to abortion rights, the government had no constitutional obligation to subsidize an activity merely because it is constitutionally protected. Finally, Rehnquist found that the 1988 regulations did not contradict the broad purposes of the relevant statute.

The Rust decision demonstrated that the Court was increasingly willing to accept major restrictions on the right to abortions. In addition, Rehnquist’s discussion of governmental conditions for the use of public funds was relevant to a large number of controversial programs.

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