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4. Limiting Governmental Support
The most perverse aspect of abortion law in the United States is that it affects
predominately poor women. The Supreme Court has ruled that it is not
discriminatory for a governmental agency to refuse to pay for medical care that is
otherwise available in the medical marketplace. Most states and the federal
government will not allow the use of governmental funds to pay for abortions or
abortion referral services. The restrictions on the federal Title X family planning
grants are typical:
Because Title X funds are intended only for family planning, once a client
served by a Title X project is diagnosed as pregnant, she must be referred for
appropriate prenatal and/or social services by furnishing a list of available
providers that promote the welfare of mother and unborn child.… A Title X
project may not use prenatal, social service or emergency medical or other
referrals as an indirect means of encouraging or promoting abortion as a
method of family planning, such as by weighing the list of referrals in favor
of medical care providers which perform abortions, by including on the list of
referral providers health care providers whose principal business is the
provision of abortions, by excluding available providers who do not provide
abortions, or by “steering” clients to providers who offer abortion as a
method of family planning. (42 CFR sec. 59.8)
These restrictions were recently upheld by the U.S. Supreme Court, which found that
the regulations did not interfere with medical care practitioners’ right of free speech.
Referring to its previous decisions upholding the right of the government not to fund
abortions, the Court reiterated the rule that refusing to fund the exercise of a right is
not the same as prohibiting that right. As with other voluntary employment
situations, the Court found that the employer has the right to restrict the workplace
activities:
The same principles apply to petitioners’ claim that the regulations abridge
the free speech rights of the grantee’s staff. Individuals who are voluntarily
employed for a Title X project must perform their duties in accordance with
the regulation’s restrictions on abortion counseling and referral. The
employees remain free, however, to pursue abortion related activities when
they are not acting under the auspices of the Title X project. The regulations,
which govern solely the scope of the Title X project’s activities, do not in any
way restrict the activities of those persons acting as private individuals. The
employees’ freedom of expression is limited during the time that they
actually work for the project; but this limitation is a consequence of their
decision to accept employment in a project, the scope of which is permissibly
restricted by the funding authority. [Rust v. Sullivan, 500 U.S. 173 (1991). ]
The Court found that the regulations were limited to a prohibition on abortion as a
means of birth control. It specifically found that the personnel in Title X–funded
facilities were free to discuss abortion and refer patients when the abortion was
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