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Rust v. Sullivan (89-1391), 500 U.S. 173 (1991)
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RUST, etc., et al., PETITIONERS v. W. SULLIVAN, SECRETARY OF HEALTHAND HUMAN SERVICES

YORK, et al., PETITIONERS v. W. SULLIVAN, SECRETARY OF HEALTHAND HUMAN SERVICES

Nos. 89-1391 and 89-1392

on writs of certiorari to the united states court of appeals for the second circuit

[May 23, 1991]

Justice Stevens, dissenting.

In my opinion, the Court has not paid sufficient attention to the language of the controlling statute or to the consistent interpretation accorded the statute by the responsible cabinet officers during four different Presidencies and 18 years.

The relevant text of the "Family Planning Services and Population Research Act of 1970" has remained unchanged since its enactment. 84 Stat. 1504. The preamble to the Act states that it was passed:

"To promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government, and for other purposes." Ibid.

The declaration of congressional purposes emphasizes the importance of educating the public about family planning services. Thus, 2 of the Act states, in part, that the purpose of the Act is:

"(1) to assist in making comprehensive voluntary family planning services readily available to all persons desiring such services;

.....

"(5) to develop and make readily available information (including educational materials) on family planning and population growth to all persons desiring such information." 42 U.S.C. 300 (Congressional Declaration of Purpose).

In contrast to the statutory emphasis on making relevant information readily available to the public, the statute contains no suggestion that Congress intended to authorize the suppression or censorship of any information by any Government employee or by any grant recipient.

Section 6 of the Act authorizes the provision of federal funds to support the establishment and operation of voluntary family planning projects. The section also empowers the Secretary to promulgate regulations imposing conditions on grant recipients to ensure that "such grants will be effectively utilized for the purposes for which made." 300a-4(b). Not a word in the statute, however, authorizes the Secretary to impose any restrictions on the dissemination of truthful information or professional advice by grant recipients.

The word "prohibition" is used only once in the Act. Section 6, which adds to the Public Health Service Act the new Title X, covering the subject of population research and voluntary planning programs, includes the following provision:

"PROHIBITION OF ABORTION

"SEC. 1008. None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." 84 Stat. 1508, 42 U.S.C. 300a-6.

Read in the context of the entire statute, this prohibition is plainly directed at conduct, rather than the dissemination of information or advice, by potential grant recipients.

The original regulations promulgated in 1971 by the Secretary of Health, Education and Welfare so interpreted the statute. This " `contemporaneous construction of [the] statute by the men charged with the responsiblity of setting its machinery in motion' " is entitled to particular respect. See Power Reactor Development Co. v. Electrical Workers, 367 U.S. 396, 408 (1961) (citation omitted); Udall v. Tallman, 380 U.S. 1, 16 (1965); Aluminum Co. of America v. Central Lincoln Peoples' Utility District, 467 U.S. 380, 390 (1984). The regulations described the kind of services that grant recipients had to provide in order to be eligible for federal funding, but they did not purport to regulate or restrict the kinds of advice or information that recipients might make available to their clients. Conforming to the language of the governing statute, the regulations provided that "[t]he project will not provide abortions as a method of family planning." 42 CFR 59.5(a)(9) (1972) (emphasis added). Like the statute itself, the regulations prohibited conduct, not speech.

The same is true of the regulations promulgated in 1986 by the Secretary of Health and Human Services. They also prohibited grant recipients from performing abortions but did not purport to censor or mandate any kind of speech. See 42 CFR 59.1-59.13 (1986).

The entirely new approach adopted by the Secretary in 1988 was not, in my view, authorized by the statute. The new regulations did not merely reflect a change in a policy determination that the Secretary had been authorized by Congress to make. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 865 (1984). Rather, they represented an assumption of policymaking responsibility that Congress had not delegated to the Secretary. See id., at 842-843 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"). In a society that abhors censorship and in which policymakers have traditionally placed the highest value on the freedom to communicate, it is unrealistic to conclude that statutory authority to regulate conduct implicitly authorized the Executive to regulate speech.

Because I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals.

Even if I thought the statute were ambiguous, however, I would reach the same result for the reasons stated in Justice O'Connor's dissenting opinion. As she also explains, if a majority of the Court had reached this result, it would be improper to comment on the constitutional issues that the parties have debated. Because the majority has reached out to decide the constitutional questions, however, I am persuaded that Justice Blackmun is correct in concluding that the majority's arguments merit a response. I am also persuaded that Justice Blackmun has correctly analyzed these issues. I have therefore joined Parts II and III of his opinion.