This is the abortion case. In summary, the federal government banned doctors who receive government money under Title X of the Public Health Service Act from "providing, within their Title X programs, abortions or abortion-related services, including counseling clients about abortion, referring them to facilities that provide abortions, or engaging in abortion-related advocacy." At issue was both whether this violated the First Amendment rights of doctors, through banning referrals and counseling, and whether it violated the Fifth Amendment rights of patients, through limiting their access to abortion. The government's brief was written with the aid of John Roberts. What follows is a summary of its arguments
Reasons for Implementation. What is at issue isn't a law, but an order of the Health and Human Services Secretary. The brief defends that order, both by saying that it was necessary for financial reasons and because banning abortions under Title is "long-standing policy" at HHS. It goes on to use Title X as indisputable, not dissimilar to its treatment of the Constitution.
Roe vs. Wade. Yes, it mentions it, stating that "[w]e continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution. If Roe is overturned, petitioners' contention that the Title X regulations burden the right announced in Roe falls with it."
Subsidies. However, the brief doesn't rely on its belief that Roe was wrongly decided, asserting that "even under Roe's strictures, the Title X regulations at issue do not violate due process." It elaborates, stating that "[t]his Court has repeatedly recognized that 'the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.' Webster, 109 S. Ct. at 3051 (quoting DeShaney v. Winnebago County Dep't of Social Services, 109 S. Ct. 998, 1003 (1989)). Thus, while under Roe the government may not prohibit a woman, during the first trimester, from choosing to have an abortion, the government is not obligated to provide the means to exercise any such right. See Webster, 109 S. Ct. at 3051-3053; Harris v. McRae, 448 U.S. 297, 312-318 (1980); Poelker v. Doe, 432 U.S. 519, 521 (1977); Maher v. Roe, 432 U.S. 464, 473-474 (1977). Indeed, as this Court has expressly stated, the government 'may "make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds."'" It applies this to the right of doctors to speak to, and refer, their patients, as well, stating that "[t]his Court has repeatedly rejected the 'notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.' Regan v. Taxation With Representation (TWR), 461 U.S. 540, 546 (1983) (quoting Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring)). See also Lyng v. International Union, 485 U.S. 360, 369 (1988); Buckley v. Valeo, 424 U.S. 1, 93-95 (1976). Thus, the government can selectively fund a program that 'encourage(s) actions deemed to be in the public interest' (Maher, 432 U.S. at 476) without providing funding to encourage other actions that a private individual wishes to promote."
No Obstacle. The brief asserts that even if Roe was rightly decided, and even if the government was required to subsidize the right to abortion, the order might still be constitutional, as "we do not concede…what has not been shown…and what is hardly intuitive -- that a woman may encounter difficulty in obtaining abortion information if Title X projects do not provide abortion counseling, referral, or advocacy."
Consent. A key theme in the brief is the notion that women who go to clinics receiving Title X money chose to go to them, and thus any restriction of their rights is not the fault of the government:
The Act. The brief argues that the order is entirely consistent with Title X of the PHSA, as Title X states that "federal funding is not available for programs 'where abortion is a method of family planning.'" It goes into much detail on this, but as it does not pertain to Roberts' confirmation, I won't delve into it.
I have to say that, despite the brief's rather radical assertion that there isn't a right to have an abortion (and, thus, implication that there isn't a right to privacy) and that fetuses count as "human life", this brief was correct. The government has never been obligated to subsidize rights.
Reasons for Implementation. What is at issue isn't a law, but an order of the Health and Human Services Secretary. The brief defends that order, both by saying that it was necessary for financial reasons and because banning abortions under Title is "long-standing policy" at HHS. It goes on to use Title X as indisputable, not dissimilar to its treatment of the Constitution.
Roe vs. Wade. Yes, it mentions it, stating that "[w]e continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution. If Roe is overturned, petitioners' contention that the Title X regulations burden the right announced in Roe falls with it."
Subsidies. However, the brief doesn't rely on its belief that Roe was wrongly decided, asserting that "even under Roe's strictures, the Title X regulations at issue do not violate due process." It elaborates, stating that "[t]his Court has repeatedly recognized that 'the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.' Webster, 109 S. Ct. at 3051 (quoting DeShaney v. Winnebago County Dep't of Social Services, 109 S. Ct. 998, 1003 (1989)). Thus, while under Roe the government may not prohibit a woman, during the first trimester, from choosing to have an abortion, the government is not obligated to provide the means to exercise any such right. See Webster, 109 S. Ct. at 3051-3053; Harris v. McRae, 448 U.S. 297, 312-318 (1980); Poelker v. Doe, 432 U.S. 519, 521 (1977); Maher v. Roe, 432 U.S. 464, 473-474 (1977). Indeed, as this Court has expressly stated, the government 'may "make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds."'" It applies this to the right of doctors to speak to, and refer, their patients, as well, stating that "[t]his Court has repeatedly rejected the 'notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.' Regan v. Taxation With Representation (TWR), 461 U.S. 540, 546 (1983) (quoting Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring)). See also Lyng v. International Union, 485 U.S. 360, 369 (1988); Buckley v. Valeo, 424 U.S. 1, 93-95 (1976). Thus, the government can selectively fund a program that 'encourage(s) actions deemed to be in the public interest' (Maher, 432 U.S. at 476) without providing funding to encourage other actions that a private individual wishes to promote."
No Obstacle. The brief asserts that even if Roe was rightly decided, and even if the government was required to subsidize the right to abortion, the order might still be constitutional, as "we do not concede…what has not been shown…and what is hardly intuitive -- that a woman may encounter difficulty in obtaining abortion information if Title X projects do not provide abortion counseling, referral, or advocacy."
Consent. A key theme in the brief is the notion that women who go to clinics receiving Title X money chose to go to them, and thus any restriction of their rights is not the fault of the government:
Petitioners are also incorrect in asserting that the regulations intrude in an unconstitutional manner on the woman's relationship with her physician. See Rust Br. 32-33; N.Y. Br. 47, 48-49. Petitioners rely on Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), which invalidated laws designed to regulate the information that any physician practicing in a State could provide to any patient concerning abortion-related matters. The Title X regulations, by contrast, affect only those women who elect to participate in a federally subsidized program designed to provide only pre-pregnancy family planning and infertility services. The regulations do not prevent a woman from obtaining abortion information; she simply must seek it from a source other than a Title X project. As this Court has stated, "the critical factor is whether she receives the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it." See Akron, 462 U.S. at 448. Thus, Title X and the Secretary's regulations do not conflict with Akron and Thornburgh. Rather, they merely define the scope of the services that a federally subsidized Title X health care professional may provide in the context of a specific, limited program.
Nor do the regulations violate due process by unduly delaying the exercise of rights under Roe. See Rust Br. 34; N.Y. Br. 48. No one is required to visit a Title X project before seeking an abortion or abortion-related counseling; any "delay" occasioned by such a visits caused by the volitional act of the individual rather than the operation of law. The client can leave at once upon learning that the Title X project does not provide abortion-related counseling or referral, if that is her wish, and immediately seek those services elsewhere. Thus, the regulations do not deny, or even meaningfully delay, "the effective opportunity for an abortion." See Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 491 n.16 (1983). Indeed, the delay generally should be no greater than the delay that would result if, as in the past, the Title X project provided non-directive abortion counseling but required the client to go elsewhere to obtain an abortion. See 53 Fed. Reg. at 2937-2938. Cf. Hodgson v. Minnesota, 110 U.S. 2926, 2944 (1990) (opinion of Justice Stevens) (a statutory "48-hour waiting period may run concurrently with the time necessary to make an appointment for the procedure, thus resulting in little or no delay").
The Act. The brief argues that the order is entirely consistent with Title X of the PHSA, as Title X states that "federal funding is not available for programs 'where abortion is a method of family planning.'" It goes into much detail on this, but as it does not pertain to Roberts' confirmation, I won't delve into it.
I have to say that, despite the brief's rather radical assertion that there isn't a right to have an abortion (and, thus, implication that there isn't a right to privacy) and that fetuses count as "human life", this brief was correct. The government has never been obligated to subsidize rights.
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