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.
In 1970, Congress enacted Title X of the Public Health Service Act (42 USCS 300--300a-41). The Act authorizes the Secretary of Health and Human Services to make grants to, and enter into contracts with, public or nonprofit private entities to assist in family planning projects. The Act provided that none of the funds appropriated under it shall be used in programs where abortion is a method of family planning. In 1988, the Secretary promulgated new regulations about the Act which specified that projects receiving Title X funds may not provide counseling concerning the use of abortion, or referral for abortion, as a method of family planning. Additionally, projects receiving Title X funds may not engage in activities that encourage, promote, or advocate abortion as a method of family planning. Title X funds must be organized so that they are physically and financially separate from prohibited abortion activities. After the regulations had been promulgated, but before they had been applied, several Title X grantees and doctors who supervised Title X funds filed two separate actions against the Secretary with the district court, claiming that the regulations were not authorized by Title X and that the regulations violated their First and Fifth Amendment Rights. Following consolidation of the actions, the district court granted summary judgment in favor of the Secretary. On appeal, the court of appeals ruled that the regulations were a permissible construction of Title X and that the regulations did not impermissibly burden a woman's right to an abortion, and did not constitute a facial violation of the First Amendment rights of health care providers or of women.
Were the Department of Health and Human Services regulations which limited the ability of Title X fund recipients to engage in abortion-related activities constitutional?
The United States Supreme Court affirmed, holding that the regulations were a permissible construction of the underlying legislation and did not violate either U.S. Const., amend. I or U.S. Const., amend. V. The 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 does 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.