Groups Dismayed at Court Decision on Rule Barring Abortion Counseling

Major Jewish organizations have expressed deep disappointment with a Supreme Court ruling last week that bars federally funded family planning clinics from discussing abortion with their clients.

Groups opposing the 5-4 ruling include the American Jewish Committee, American Jewish Congress, Anti-Defamation League of B’nai B’rith, B’nai B’rith Women, Na’amat USA, National Council of Jewish Women, United Synagogue of America and Women’s American ORT.

Orthodox Jewish groups took no position on the decision, urging instead that any Jewish woman considering abortion consult with rabbis versed in traditional Jewish law.

The May 23 high court ruling, in Rust vs. Sullivan, upheld regulations that the Department of Health and Human Services issued in 1988. The regulations cover a 21-year-old federal grant program to 4,500 family planning clinics under Title X of the Public Health Service Act of 1970.

Section 1,008 of the act states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”

Among the regulations was one that states that a federally funded clinic cannot provide “counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning.”

Sammie Moshenberg, the NCJW’s Washington representative, said Congress may try to circumvent the decision by striking the language from Title X that Health and Human Services used as the basis for its regulations.

The Senate last year approved such a provision, which had the support of 62 senators, but it was stripped from a bill reauthorizing Title X for the 1991 fiscal year after President Bush issued a veto threat.

But Moshenberg said there is a “pro-choice majority” in both the Senate and House of Representatives that will grow because of the court ruling, and that could override any veto.

WILL HAVE ‘PERNICIOUS CONSEQUENCES’

The regulations were challenged by Planned Parenthood of America and the state and city of New York, which argued that the regulations violate the right to free speech guaranteed by the First Amendment. The petitioners also argued, that the regulations infringe on a woman’s right to have an abortion, as implied in various constitutional amendments.

Many of the Jewish groups joined a friend-of-the-court brief on the petitioners’ behalf.

Chief Justice William Rehnquist, writing for the majority, rejected both of those claims, while recognizing abortion as a “protected right.”

“To hold that the government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program advancing those goals necessarily discourages alternate goals, would render numerous government programs constitutionally suspect,” Rehnquist wrote.

Justice Harry Blackmun, writing the main dissenting opinion, argued that “until today, the court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.”

Blackmun also rejected Rehnquist’s argument that such regulations do not violate the First Amendment rights of clinic staffers to express themselves freely.

“It has never been sufficient to justify an otherwise unconstitutional condition upon public employment that the employee may escape the condition by relinquishing his or her job,” Blackmun wrote.

Justice Sandra Day O’Connor, who wrote her own dissent, agreed that “serious constitutional problems” are raised because of the regulations’ “content-based restrictions on the speech of Title X fund recipients.”

The court’s decision “denies patients the right to receive full and comprehensive medical advice from their physicians,” said Ann Lewis, chairwoman of the AJCongress Commission for Women’s Equality.

The decision “amounts to nothing more than a gag order,” said Harriet Horwitz, president of B’nai B’rith Women.

It “will have especially pernicious consequences for those women who rely on government-supported medical care,” said Reese Feldman, president of Women’s American ORT.

“The ruling actually compels the giving of medical advice that the physician may not believe,” said Samuel Rabinove, legal director of the American Jewish Committee.