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The government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. A legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right. A refusal to fund protected activity, without more, cannot be equated with the imposition of a "penalty" on that activity. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.
Petitioner grantees under the Title X of the Public Health Service Act, 42 U.S.C.S. §§ 300-300a-6 challenged the validity of the Department of Health and Human Services regulations which limited the ability of Title X fund recipients to engage in abortion-related activities. The appellate court upheld the regulations limiting the ability of Title X fund recipients to engage in abortion-related activities, 42 C.F.R. §§ 59.8-59.10. The Supreme Court of the United States affirmed the decision.
Did the Department of Health and Human Services regulations, which limited the ability of recipients of funds under Title X of the Public Health Service Act, 42 U.S.C.S. §§ 300-300a-6 to engage in abortion-related activities, violate the U.S. Constitution?
The U.S. Constitution did not require the government to distort the scope of its program in order to provide information about abortion to indigent women where the statute did not encroach on a doctor's ability to provide or a woman's right to receive information concerning abortion-related services outside the Title X project.