Rust v. Sullivan/Dissent Blackmun

by Harry Blackmun

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, with whom JUSTICE STEVENS joins as to Parts II and [p204] III, and with whom JUSTICE O'CONNOR joins as to Part I, dissenting.

Casting aside established principles of statutory construction and administrative jurisprudence, the majority in these cases today unnecessarily passes upon important questions of constitutional law. In so doing, the Court, for the first time, upholds viewpoint-based suppression of speech solely because it is imposed on those dependent upon the Government for economic support. Under essentially the same rationale, the majority upholds direct regulation of dialogue between a pregnant woman and her physician when that regulation has both the purpose and the effect of manipulating her decision as to the continuance of her pregnancy. I conclude that the Secretary's regulation of referral, advocacy, and counseling activities exceeds his statutory authority, and also that the Regulations violate the First and Fifth Amendments of our Constitution. Accordingly, I dissent, and would reverse the divided-vote judgment of the Court of Appeals.

I

The majority does not dispute that "[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality." Machinists v. Street, 367 U.S. 740, 749 (1961). See also Hooper v. California, 155 U.S. 648, 657 (1895); Crowell v. Benson, 285 U.S. 22, 62 (1932); United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982). Nor does the majority deny that this principle is fully applicable to cases such as the instant one, in which a plausible but constitutionally suspect statutory interpretation is embodied in an administrative regulation. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); Kent v. Dulles, 357 U.S. 116, 129-130 (1958). Rather, in its zeal to address the constitutional issues, the majority sidesteps this established canon of construction with the feeble excuse that the challenged [p205] Regulations

do not raise the sort of "grave and doubtful constitutional questions," . . . that would lead us to assume Congress did not intend to authorize their issuance.

Ante at 191, quoting United States v. Delaware and Hudson Co., 213 U.S. 366, 408 (1909).

This facile response to the intractable problem the Court addresses today is disingenuous, at best. Whether or not one believes that these Regulations are valid, it avoids reality to contend that they do not give rise to serious constitutional questions. The canon is applicable to this case not because "it was likely that [the Regulations] . . . would be challenged on constitutional grounds," ante at 191, but because the question squarely presented by the Regulations — the extent to which the Government may attach an otherwise unconstitutional condition to the receipt of a public benefit — implicates a troubled area of our jurisprudence in which a court ought not entangle itself unnecessarily. See, e.g., Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv.L.Rev. 4, 6 (1988) (describing this problem as "the basic structural issue that for over a hundred years has bedeviled courts and commentators alike. . . ."); Sullivan, Unconstitutional Conditions, 102 Harv.L.Rev. 1413, 1415-1416 (1989) (observing that this Court's unconstitutional conditions cases "seem a minefield to be traversed gingerly").

As is discussed in Parts II and III, infra, the Regulations impose viewpoint-based restrictions upon protected speech, and are aimed at a woman's decision whether to continue or terminate her pregnancy. In both respects, they implicate core constitutional values. This verity is evidenced by the fact that two of the three Courts of Appeals that have entertained challenges to the Regulations have invalidated them on constitutional grounds. See Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (CA1 1990); Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (CA10 1990). [p206]

A divided panel of the Tenth Circuit found the Regulations

fal[l] squarely within the prohibition in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), and City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), against intrusion into the advice a woman requests from or is given by her doctor.

913 F.2d at 1501. The First Circuit, en banc with one judge dissenting, found the Regulations to violate both the privacy rights of Title X patients and the First Amendment rights of Title X grantees. See also New York v. Sullivan, 889 F.2d 401, 415 (CA2 1989) (Kearse, J., dissenting in part). That a bare majority of this Court today reaches a different result does not change the fact that the constitutional questions raised by the Regulations are both grave and doubtful.

Nor is this a case in which the statutory language itself requires us to address a constitutional question. Section 1008 of the Public Health Service Act, 84 Stat. 1508, 42 U.S.C. § 300a-6, provides simply: "None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." The majority concedes that this language "does not speak directly to the issues of counseling, referral, advocacy, or program integrity," ante at 184, and that "the legislative history is ambiguous" in this respect. Ante at 186. Consequently, the language of § 1008 easily sustains a constitutionally trouble-free interpretation. ^[1] [p207]

Thus, this is not a situation in which "the intention of Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). Indeed, it would appear that our duty to avoid passing unnecessarily upon important constitutional questions is strongest where, as here, the language of the statute is decidedly ambiguous. It is both logical and eminently prudent to assume that, when Congress intends to press the limits of constitutionality in its enactments, it will express that intent in explicit and unambiguous terms. See Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2113 (1990) ("It is thus implausible that, after Chevron, agency interpretations of ambiguous statutes will prevail even if the consequence of those interpretations is to produce invalidity or to raise serious constitutional doubts").

Because I conclude that a plainly constitutional construction of § 1008 "is not only ‘fairly possible' but entirely reasonable," Machinists, 367 U.S. at 750, I would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary's Regulations.

II

I also strongly disagree with the majority's disposition of petitioners' constitutional claims, and because I feel that a response thereto is indicated, I move on to that issue.

II A

Until today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds. Whatever may be the Government's power to condition the receipt of its largess upon the relinquishment of constitutional rights, it surely does not extend to a condition that suppresses the recipient's cherished freedom of speech based solely upon the content or viewpoint of that speech. Speiser v. Randall, 357 U.S. 513, 518-519 (1958) ("To deny an exemption to claimants [p208] who engage in certain forms of speech is in effect to penalize them for such speech. . . . The denial is ‘frankly aimed at the suppression of dangerous ideas,'" quoting American Communications Assn. v. Douds, 339 U.S. 382, 402 (1950)). See Cammarano v. United States, 358 U.S. 498, 513 (1959). See also League of Women Voters, 468 U.S. at 407 (REHNQUIST, J., dissenting). Cf. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (SCALIA, J., dissenting). This rule is a sound one, for, as the Court often has noted:

"A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law . . . abridging the freedom of speech, or of the press.'"

League of Women Voters, 468 U.S. at 383-384, quoting Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 546 (1980) (STEVENS, J., concurring in judgment).

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

Nothing in the Court's opinion in Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), can be said to challenge this long-settled understanding. In Regan, the Court upheld a content-neutral provision of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), that disallowed a particular tax-exempt status to organizations that "attempt[ed] to influence legislation," while affording such status to veterans' organizations irrespective of their lobbying activities. Finding the case controlled by Cammarano, supra, the Court explained:

The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to "‘ai[m] at the suppression of dangerous ideas.'" . . . We find no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect.

461 U.S. at 548, quoting Cammarano, 358 U.S. at [p209] 513, in turn quoting Speiser, 357 U.S. at 519. The separate concurrence in Regan joined the Court's opinion precisely

[b]ecause 26 U.S.C. § 501's discrimination between veterans' organizations and charitable organizations is not based on the content of their speech.

Id. 461 U.S. at 551.

It cannot seriously be disputed that the counseling and referral provisions at issue in the present cases constitute content-based regulation of speech. Title X grantees may provide counseling and referral regarding any of a wide range of family planning and other topics, save abortion. Cf. Consolidated Edison Co., 447 U.S. at 537 ("The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic"); Boos v. Barry, 485 U.S. 312, 319 (1988) (opinion of O'CONNOR, J.) (same).

The Regulations are also clearly viewpoint-based. While suppressing speech favorable to abortion with one hand, the Secretary compels anti-abortion speech with the other. For example, the Department of Health and Human Services' own description of the Regulations makes plain that

Title X projects are required to facilitate access to prenatal care and social services, including adoption services, that might be needed by the pregnant client to promote her wellbeing and that of her child, while making it abundantly clear that the project is not permitted to promote abortion by facilitating access to abortion through the referral process.

53 Fed.Reg. 2927 (1988) (emphasis added).

Moreover, the Regulations command that a project refer for prenatal care each woman diagnosed as pregnant, irrespective of the woman's expressed desire to continue or terminate her pregnancy. 42 CFR § 59.8(a)(2) (1990). If a client asks directly about abortion, a Title X physician or counselor is required to say, in essence, that the project does not consider abortion to be an appropriate method of family planning. § 59.8(b)(4). Both requirements are antithetical to [p210] the First Amendment. See Wooley v. Maynard, 430 U.S. 705, 714 (1977).

The Regulations pertaining to "advocacy" are even more explicitly viewpoint-based. These provide: "A Title X project may not encourage, promote or advocate abortion as a method of family planning." § 59.10 (emphasis added). They explain:

This requirement prohibits actions to assistwomen to obtain abortions or increase the availability or accessibility of abortion for family planning purposes.

§ 59.10(a) (emphasis added). The Regulations do not, however, proscribe or even regulate antiabortion advocacy. These are clearly restrictions aimed at the suppression of "dangerous ideas."

Remarkably, the majority concludes that "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another." Ante at 193. But the majority's claim that the Regulations merely limit a Title X project's speech to preventive or preconceptional services, ibid., rings hollow in light of the broad range of non-preventive services that the Regulations authorize Title X projects to provide. ^[2] By refusing to fund those family planning projects that advocate abortion because they advocate abortion, the Government plainly has targeted a particular viewpoint. Cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989). The majority's reliance on the fact that the Regulations pertain solely to funding decisions simply begs the question. Clearly, there are some bases upon which government may not rest its decision to fund or not to fund. For example, the Members of the majority surely would agree that government may not base its [p211] decision to support an activity upon considerations of race. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). As demonstrated above, our cases make clear that ideological viewpoint is a similarly repugnant ground upon which to base funding decisions.

The majority's reliance upon Regan in this connection is also misplaced. That case stands for the proposition that government has no obligation to subsidize a private party's efforts to petition the legislature regarding its views. Thus, if the challenged Regulations were confined to nonideological limitations upon the use of Title X funds for lobbying activities, there would exist no violation of the First Amendment. The advocacy Regulations at issue here, however, are not limited to lobbying, but extend to all speech having the effect of encouraging, promoting, or advocating abortion as a method of family planning. § 59.10(a). Thus, in addition to their impermissible focus upon the viewpoint of regulated speech, the provisions intrude upon a wide range of communicative conduct, including the very words spoken to a woman by her physician. By manipulating the content of the doctor/patient dialogue, the Regulations upheld today force each of the petitioners "to be an instrument for fostering public adherence to an ideological point of view [he or she] finds unacceptable." Wooley v. Maynard, 430 U.S. at 715, This type of intrusive, ideologically based regulation of speech goes far beyond the narrow lobbying limitations approved in Regan, and cannot be justified simply because it is a condition upon the receipt of a governmental benefit. ^[3] [p212]

II B

The Court concludes that the challenged Regulations do not violate the First Amendment rights of Title X staff members, because any limitation of the employees' freedom of expression is simply a consequence of their decision to accept employment at a federally funded project. Ante at 198-199. But it has never been sufficient to justify an otherwise unconstitutional condition upon public employment that the employee may escape the condition by relinquishing his or her job. It is beyond question

that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment.

Abood v. Detroit Board of Education, 431 U.S. 209, 234 (1977), citing Elrod v. Burns, 427 U.S. 347, 357-360 (1976), and cases cited therein; Perry v. Sindermann, 408 U.S. 593 (1972); Keyishian v. Board of Regents, 385 U.S. 589 (1967). Nearly two decades ago, it was said:

For at least a quarter-century, this Court has made clear that, even though a person has no "right" to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a [p213] person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would, in effect, be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly."

Perry v. Sindermann, 408 U.S. at 597, quoting Speiser v. Randall, 357 U.S. 513, 526 (1958).

The majority attempts to circumvent this principle by emphasizing that Title X physicians and counselors "remain free . . . to pursue abortion-related activities when they are not acting under the auspices of the Title X project." Ante at 198. "The regulations," the majority explains, "do not in any way restrict the activities of those persons acting as private individuals." Ibid. Under the majority's reasoning, the First Amendment could be read to tolerate any governmental restriction upon an employee's speech so long as that restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past.

In Abood, it was no answer to the petitioners' claim of compelled speech as a condition upon public employment that their speech outside the workplace remained unregulated by the State. Nor was the public employee's First Amendment claim in Rankin v. McPherson, 483 U.S. 378 (1987), derogated because the communication that her employer sought to punish occurred during business hours. At the least, such conditions require courts to balance the speaker's interest in the message against those of government in preventing its dissemination. Id. at 384; Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

In the cases at bar, the speaker's interest in the communication is both clear and vital. In addressing the family planning needs of their clients, the physicians and counselors who staff Title X projects seek to provide them with the full range of information and options regarding their health and reproductive freedom. Indeed, the legitimate expectations [p214] of the patient and the ethical responsibilities of the medical profession demand no less.

The patient's right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. . . . The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.

Current Opinions, the Council on Ethical and Judicial Affairs of the American Medical Association ¶ 8.08 (1989). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 70 (1982); American College of Obstetricians & Gynecologists, Standards for Obstetric-Gynecologic Services 62 (7th ed.1989). When a client becomes pregnant, the full range of therapeutic alternatives includes the abortion option, and Title X counselors' interest in providing this information is compelling.

The Government's articulated interest in distorting the doctor/patient dialogue — ensuring that federal funds are not spent for a purpose outside the scope of the program — falls far short of that necessary to justify the suppression of truthful information and professional medical opinion regarding constitutionally protected conduct. ^[4] Moreover, the offending Regulation is not narrowly tailored to serve this interest. For example, the governmental interest at stake could be served by imposing rigorous bookkeeping standards to ensure financial separation or adopting content-neutral rules for the balanced dissemination of family planning and health information. See Massachusetts v. Secretary of Health & Human Services, 899 F.2d 53, 74 (CA1 1990), cert. pending, No. 89-1929. By failing to balance or even to consider the free speech interests claimed by Title X physicians against the Government's asserted interest in suppressing the speech, the Court falters in its duty to implement the protection [p215] that the First Amendment clearly provides for this important message.

II C

Finally, it is of no small significance that the speech the Secretary would suppress is truthful information regarding constitutionally protected conduct of vital importance to the listener. One can imagine no legitimate governmental interest that might be served by suppressing such information. Concededly, the abortion debate is among the most divisive and contentious issues that our Nation has faced in recent years.

But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

III

By far the most disturbing aspect of today's ruling is the effect it will have on the Fifth Amendment rights of the women who, supposedly, are beneficiaries of Title X programs. The majority rejects petitioners' Fifth Amendment claims summarily. It relies primarily upon the decisions in Harris v. McRae, 448 U.S. 297 (1980), and Webster v. Reproductive Health Services, 492 U.S. 490 (1989). There were dissents in those cases, and we continue to believe that they were wrongly and unfortunately decided. Be that as it may, even if one accepts as valid the Court's theorizing in those cases, the majority's reasoning in the present cases is flawed.

Until today, the Court has allowed to stand only those restrictions upon reproductive freedom that, while limiting the availability of abortion, have left intact a woman's ability to decide without coercion whether she will continue her pregnancy to term. Maher v. Roe, 432 U.S. 464 (1977), McRae, and Webster are all to this effect. Today's decision abandons that principle, and with disastrous results. [p216]

Contrary to the majority's characterization, this is not a case in which individuals seek government aid in exercising their fundamental rights. The Fifth Amendment right asserted by petitioners is the right of a pregnant woman to be free from affirmative governmental interference in her decision. Roe v. Wade, 410 U.S. 113 (1973), and its progeny are not so much about a medical procedure as they are about a woman's fundamental right to self-determination. Those cases serve to vindicate the idea that "liberty," if it means anything, must entail freedom from governmental domination in making the most intimate and personal of decisions. See, e.g., Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 (1983) (governmental interest in ensuring that pregnant women receive medically relevant information "will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth"); Maher v. Roe, 432 U.S. at 473 (noting that the Court's abortion cases "recognize a constitutionally protected interest ‘in making certain kinds of important decisions' free from governmental compulsion," quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)); see also Harris v. McRae, 448 U.S. at 312; Thornburgh, 476 U.S. at 759; Roe v. Wade, 410 U.S. at 169-170 (Stewart, J., concurring). By suppressing medically pertinent information and injecting a restrictive ideological message unrelated to considerations of maternal health, the Government places formidable obstacles in the path of Title X clients' freedom of choice and thereby violates their Fifth Amendment rights.

It is crystal clear that the aim of the challenged provisions — an aim the majority cannot escape noticing — is not simply to ensure that federal funds are not used to perform abortions, but to "reduce the incidence of abortion." 42 CFR § 59.2 (1990) (in definition of "family planning"). As recounted above, the Regulations require Title X physicians and counselors to provide information pertaining only to childbirth, [p217] to refer a pregnant woman for prenatal care irrespective of her medical situation, and, upon direct inquiry, to respond that abortion is not an "appropriate method" of family planning.

The undeniable message conveyed by this forced speech, and the one that the Title X client will draw from it, is that abortion nearly always is an improper medical option. Although her physician's words, in fact, are strictly controlled by the Government, and wholly unrelated to her particular medical situation, the Title X client will reasonably construe them as professional advice to forgo her right to obtain an abortion. As would most rational patients, many of these women will follow that perceived advice and carry their pregnancy to term, despite their needs to the contrary and despite the safety of the abortion procedure for the vast majority of them. Others, delayed by the Regulations' mandatory prenatal referral, will be prevented from acquiring abortions during the period in which the process is medically sound and constitutionally protected.

In view of the inevitable effect of the Regulations, the majority's conclusion that

[t]he difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the government had not enacted Title X,

ante at 202, is insensitive and contrary to common human experience. Both the purpose and result of the challenged Regulations is to deny women the ability voluntarily to decide their procreative destiny. For these women, the Government will have obliterated the freedom to choose as surely as if it had banned abortions outright. The denial of this freedom is not a consequence of poverty, but of the Government's ill-intentioned distortion of information it has chosen to provide. ^[5] [p218]

The substantial obstacles to bodily self-determination that the Regulations impose are doubly offensive because they are effected by manipulating the very words spoken by physicians and counselors to their patients. In our society, the doctor/patient dialogue embodies a unique relationship of trust. The specialized nature of medical science and the emotional distress often attendant to health-related decisions requires that patients place their complete confidence, and often their very lives, in the hands of medical professionals. One seeks a physician's aid not only for medication or diagnosis, but also for guidance, professional judgment, and vital emotional support. Accordingly, each of us attaches profound importance and authority to the words of advice spoken by the physician.

It is for this reason that we have guarded so jealously the doctor/patient dialogue from governmental intrusion.

[I]n Roe and subsequent cases, we have "stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out."

Akron, 462 U.S. at 447 quoting Colautti v. Franklin, 439 U.S. 379, 387 (1979). See also Thornburgh, 476 U.S. at 763. The majority's approval of the Secretary's Regulations flies in the face of our repeated warnings that regulations tending to "confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession," cannot endure. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 67, n. 8 (1976).

The majority attempts to distinguish our holdings in Akron and Thornburgh on the post hoc basis that the governmental [p219] intrusions into the doctor/patient dialogue invalidated in those cases applied to all physicians within a jurisdiction while the Regulations now before the Court pertain to the narrow class of healthcare professionals employed at Title X projects. Ante at 202. But the rights protected by the Constitution are personal rights. Loving v. Virginia, 388 U.S. 1, 12 (1967); Shelley v. Kraemer, 334 U.S. 1, 22 (1948). And for the individual woman, the deprivation of liberty by the Government is no less substantial because it affects few, rather than many. It cannot be that an otherwise unconstitutional infringement of choice is made lawful because it touches only some of the Nation's pregnant women, and not all of them.

The manipulation of the doctor/patient dialogue achieved through the Secretary's Regulations is clearly an effort "to deter a woman from making a decision that, with her physician, is hers to make." Thornburgh, 476 U.S. at 759. As such, it violates the Fifth Amendment. ^[6]

IV

In its haste further to restrict the right of every woman to control her reproductive freedom and bodily integrity, the majority disregards established principles of law and contorts this Court's decided cases to arrive at its preordained result. The majority professes to leave undisturbed the free speech protections upon which our society has come to rely, but one must wonder what force the First Amendment retains if it is read to countenance the deliberate manipulation by the Government [p220] of the dialogue between a woman and her physician. While technically leaving intact the fundamental right protected by Roe v. Wade, the Court, "through a relentlessly formalistic catechism," McRae, 448 U.S. at 341 (MARSHALL, J., dissenting), once again has rendered the right's substance nugatory. See Webster v. Reproductive Health Services, 492 U.S. at 537 (opinions concurring in part and dissenting in part). This is a course nearly as noxious as overruling Roe directly, for if a right is found to be unenforceable, even against flagrant attempts by government to circumvent it, then it ceases to be a right at all. This, I fear, may be the effect of today's decision.

Notes

↑ . The majority states: "There is no question but that the statutory prohibition contained in § 1008 is constitutional." Ante at 192. This statement simply begs the question. Were the Court to read § 1008 to prohibit only the actual performance of abortions with Title X fund as, indeed, the Secretary did until February 2, 1988, see 53 Fed.Reg. 2923 (1988) — the provision would fall within the category of restrictions that the Court upheld in Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464 (1977). By interpreting the statute to authorize the regulation of abortion-related speech between physician and patient, however, the Secretary, and now the Court, have rejected a constitutionally sound construction in favor of one that is by no means clearly constitutional.

↑ . In addition to requiring referral for prenatal care and adoption services, the Regulations permit general health services such as physical examinations, screening for breast cancer, treatment of gynecological problems, and treatment for sexually transmitted diseases. 53 Fed.Reg. 2927 (1988). None of the latter are strictly preventive, preconceptional services.

↑ . The majority attempts to obscure the breadth of its decision through its curious contention that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship." Ante at 200. That the doctor-patient relationship is substantially burdened by a rule prohibiting the dissemination by the physician of pertinent medical information is beyond serious dispute. This burden is undiminished by the fact that the relationship at issue here is not an "all-encompassing" one. A woman seeking the services of a Title X clinic has every reason to expect, as do we all, that her physician will not withhold relevant information regarding the very purpose of her visit. To suggest otherwise is to engage in uninformed fantasy. Further, to hold that the doctor-patient relationship is somehow incomplete where a patient lacks the resources to seek comprehensive health care from a single provider is to ignore the situation of a vast number of Americans. As JUSTICE MARSHALL has noted in a different context:

It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

United States v. Kras, 409 U.S. 434, 460 (1973) (dissenting opinion).

↑ . It is to be noted that the Secretary has made no claim that the Regulations at issue reflect any concern for the health or welfare of Title X clients.

↑ . In the context of common law tort liability, commentators have recognized:

If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse. . . . The same is true, of course, of a physician who accepts a charity patient. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests.

P. Keeton et al., Prosser and Keeton on the Law of Torts 378 (5th ed.1984) (footnotes omitted). This observation seems equally appropriate to the cases at bar.

↑ . Significantly, the Court interprets the challenged regulations to allow a Title X project to refer a woman whose health would be seriously endangered by continued pregnancy to an abortion provider. Ante at 195. To hold otherwise would be to adopt an interpretation that would most certainly violate a patient's right to substantive due process. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982); Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983). The Solicitor General at oral argument, however, afforded the Regulations a far less charitable interpretation. See Tr. of Oral Arg. 44-47.