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Court unwisely lets government buy conformity

Published Oct. 13, 2005

Our private institutions _ educational, scientific, artistic _ have come to rely increasingly on government funds. The danger is that with the money will come bureaucratic control and conformity. So a critical question for democratic societies is how to maintain private independence and professionalism in an age of public funding. The United States took a large step backward on the issue last week when the Supreme Court decided the case of Rust vs. Sullivan. The court upheld a Reagan administration regulation that forbids doctors in family-planning clinics funded in any part by the government to discuss abortion with patients, or even to refer them to doctors who will discuss that question.

Judging by the polls, most Americans would reject a policy that forbids doctors to give their patients honest medical advice on the options available. I doubt that Congress would ever legislate such a rule. How, then, did it become law?

In 1970 Congress authorized funds for family-planning projects. The statute said that money should not go to programs "where abortion is a method of family planning." For 18 years successive administrations read the law as prohibiting clinics that performed abortions but not as restricting what doctors could say.

Then in 1988 a zealous bureaucrat, carrying out the Reagan administration's fierce opposition to abortion, imposed the new regulation. The first question for the Supreme Court was whether Congress in the 1970 act had authorized such a restriction of doctors' speech.

Chief Justice William Rehnquist, writing for a 5-4 majority, said the 1970 act was "ambiguous." In that situation, he said, the court should follow the current reading of it by the executive branch _ the restrictive 1988 regulation.

Doctors silenced by the policy argued that it violated their right to free speech under the First Amendment. The court's historic practice has been to construe statutes in a way that avoids constitutional doubts. But Rehnquist had no doubt that the rule was constitutional.

The government, he said, has a right to choose what activities it funds. And the regulation restricted only federally funded clinics; doctors were still free to give their real views in private clinics.

The premise was that a woman seeking advice has a choice of many clinics. But that is fantasy. In most rural areas _ or in the area of the South Bronx where this case began _ there is no choice. A woman will go to the only available clinic. She will seek and expect honest medical advice _ and get a stacked deck.

One of the puzzles of the decision is that such a libertarian conservative as Justice Antonin Scalia joined it. Why would he, and others, want to empower executive officials to ordain what private citizens may say?

One answer may be that abortion as a subject distorts other values. Some people, on and off the court, are so deeply and sincerely opposed to abortion that they will approve any measure designed to discourage it.

But Rust vs. Sullivan was only incidentally about abortion. The real issue was whether the government, when it pays the piper, can call the tune _ or command the piper to play the fiddle.

The Supreme Court is often admonished to defer to the popular will, as expressed by majorities in Congress. But here Congress did not impose the restriction. A bureaucrat did. And the decision may open the way for other bureaucrats to dictate to all kinds of recipients of public funds: schools, museums, scientific laboratories, etc.

Conservatives and liberals alike read the First Amendment as saying broadly that government may not punish people for what they say. I think conservatives will rue the day when they encouraged an alternative method of dictation _ by bribery. Professor Kathleen Sullivan of Harvard Law School put it: "This says that he who takes the king's shilling becomes the king's mouthpiece."

New York Times News Service