I asked the question yesterday: Can the president defund Planned Parenthood through executive action? The answer: We’re all about to find out. According to the Associated Press, HHS will announce later today the adoption of the so-called “gag rule” once put in place by Ronald Reagan, denying Title X funding to any organization that deals with, refers, or recommends abortions:
The Trump administration will resurrect a Reagan-era rule that would ban federally funded family planning clinics from discussing abortion with women, or sharing space with abortion providers.
The Department of Health and Human Services will announce its proposal Friday, a senior White House official said Thursday, speaking on condition of anonymity because the official was not authorized to confirm the plans before the announcement.
The policy has been derided as a “gag rule” by abortion rights supporters and medical groups, and it is likely to trigger lawsuits that could keep it from taking effect. However, it’s guaranteed to galvanize activists on both sides of the abortion debate ahead of the congressional midterm elections.
We’ll hear lots of analysis about this regulation being a “gag rule,” but bear in mind that its opponents lost the First Amendment argument. The Supreme Court decided in Rust v Sullivan that this rule doesn’t “gag” anyone at all. Chief Justice William Rehnquist’s majority opinion upheld lower court rulings on that point:
By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has, consistent with our teachings in League of Women Voters and Regan, not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc, and the Secretary has simply required a certain degree of separation from the Title X project in order to ensure the integrity of the federally funded program.
The same principles apply to petitioners’ claim that the regulations abridge the free speech rights of the grantee’s staff. Individuals who are voluntarily employed for a Title X project must perform their duties in accordance with the regulation’s restrictions on abortion counseling and referral. The employees remain free, however, to pursue abortion-related activities when they are not acting under the auspices of the Title X project. The regulations, which govern solely the scope of the Title X project’s activities, do not in any way restrict the activities of those persons acting as private individuals. The employees’ freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority.
This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression. For example, this Court has recognized that the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the restriction of speech in areas that have “been traditionally open to the public for expressive activity,” United States v. Kokinda, 110 S. Ct. 3115, 3119 (1990); Hague v. CIO, 307 U.S. 496, 515 (1939)(opinion of Roberts, J.), or have been “expressly dedicated to speech activity.” Kokinda, supra, 110 S. Ct., at 3119; Perry Education Assn. v. Perry Local Educators’ Assn.,460 U.S. 37, 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603, 605-606 (1967). It could be argued by analogy that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from government regulation, even when subsidized by the Government. We need not resolve that question here, however, because the Title X program regulations do not significantly impinge upon the doctor-patient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold. Nor is the doctor-patient relationship established by the Title X program sufficiently all-encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice. The program does not provide post-conception medical care, and therefore a doctor’s silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her. The doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program. In these circumstances, the general rule that the Government may choose not to subsidize speech applies with full force.
So it’s not truly a “gag” rule, because it doesn’t actually “gag” anyone. It prevents government subsidies from going to abortion providers or abortion referrers. However, Rehnquist’s construction in Rust opens up at least a theoretical possibility that funds could still go to Planned Parenthood — as long as they operated clinics separate from their abortion mills and never referred patients to them. It’s highly unlikely that could ever happen, but it’s not impossible either.
By the way, the elimination of Planned Parenthood and other abortion providers from the Title X program doesn’t mean that access to the subsidies by women will dry up, as some claimed after yesterday’s post. It’s true that Planned Parenthood is the largest distributor of those government benefits, but it’s equally if not more true that they’ve crowded out other potential clinics from providing that assistance. With Planned Parenthood forced out of that business, the same Title X money will still be available, and will incentivize other clinics to open or expand to handle the fresh demand.
Don’t expect Planned Parenthood and its supporters on Capitol Hill to get gagged by this, either. As the AP report predicts, there will soon be a flurry of lawsuits attempting to block implementation of these regulations and to overturn them in the long run. They’ll have initial success on the former, but with Rust as precedent, they don’t have much hope on the latter, especially not with the current roster on the Supreme Court.
It will make fine fodder for the 2018 and 2020 political cycles, and it’s not entirely clear which party will be able to make more hay out of it. Democrats should have an argument about excessive use of executive authority in pursuit of ideological hard-line goals, but … this is the same party that ran in 2016 on a promise to undo the Hyde Amendment and provide federal funding for abortions until the final day of pregnancy, too. It also follows eight years of President Pen & Phone telling Americans that he had the authority to pass pretty much any regulation he wanted, including one that forced nuns to pay for birth control. That’ll make for one heck of an argument.