IRVING RUST, ET AL., PETITIONERS V. LOUIS W. SULLIVAN, SECRETARY OF
HEALTH AND HUMAN SERVICES

   STATE OF NEW YORK, ET AL., PETITIONERS V. LOUIS W. SULLIVAN,
SECRETARY OF HEALTH AND HUMAN SERVICES

   No. 89-1391;  No. 1392

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Second Circuit

   Brief For The Respondent

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional, statutory, and regulatory provisions involved
   Statement
      a. Abortion counseling and referral
      b. Program integrity
      c. Abortion advocacy
   Summary of argument
   Argument
     I. The regulations do not violate the Fifth Amendment
    II. The regulations do not violate the First Amendment
        a. Grant recipients
        b. Employees of grant recipients
        c. Clients
   III. Title X authorizes the Secretary's regulations
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 35a-67a) is reported
at 889 F.2d 401.  The opinion of the district court (Pet. App. 9a-32a)
is reported at 690 F. Supp. 1261.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 1,
1989.  Justice Marshall extended the time to file a petition for
certiorari to and including March 1, 1990, and the petitions were
filed on that date.  The petitions were granted on May 29, 1990.  This
Court's jurisdiction rests upon 28 U.S.C. 1254(1).

     CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED

   The relevant constitutional provisions are set forth in
petitioners' briefs (Rust Br. 1;  N.Y. Br. 2).  The statutory
provisions are set forth in the joint appendix (J.A. 3-12), and the
regulatory provisions are set forth in the petition appendix (Pet.
App. 1a-8a).

                          QUESTION PRESENTED

   Title X of the Public Health Service Act, which authorizes federal
agents to support the provision of family planning services, provides
that "(n)one of the funds appropriated under this subchapter shall be
used in programs where abortion is a method of family planning." 42
U.S.C. 300a-6.  The implementing regulations prohibit Title X grant
recipients from providing, within their Title X programs, abortions or
abortion-related services, including counseling clients about
abortion, referring them to facilities that provide abortions, or
engaging in abortion-related advocacy.  The question presented is
whether those regulations violate Title X, the First Amendment rights
of grantees and pregnant women, or the Fifth Amendment rights of
pregnant women to terminate their pregnancy.

                               STATEMENT

   Congress enacted Title X of the Public Health Service Act to
provide federal subsidies for certain types of family planning
services.  See Family Planning Services and Population Research Act of
1970, Pub. L. No. 91-572, Section 6(c), 84 Stat. 1505-1508, 42 U.S.C.
300 to 300a-6a.  Section 1001(a) of Title X authorizes the Secretary
of Health and Human Services (HHS) to make grants and enter into
contracts with public or private nonprofit entities

      to assist in the establishment and operation of voluntary family
      planning projects which shall offer a broad range of acceptable
      and effective family planning methods and services (including
      natural family planning methods, infertility services, and
      services for adolescents).

42 U.S.C. 300(a).  Section 1006(a) further provides that "(g)rants and
contracts made under this subchapter shall be made in accordance with
such regulations as the Secretary may promulgate." 42 U.S.C.
300a-4(a).  However, Section 1008 expressly states:

         None of the funds appropriated under this subchapter shall be
      used in programs where abortion is a method of family planning.

42 U.S.C. 300a-6.  The Conference Report that accompanied the
legislation specifically addressed this provision:

         It is, and has been, the intent of both Houses that the funds
      authorized under this legislation be used only to support
      preventive family planning services, population research,
      infertility services, and other related medical, informational,
      and educational activities.  The conferees have adopted the
      language contained in section 1008, which prohibits the use of
      such funds for abortion, in order to make clear this intent.

H.R. Conf. Rep. No. 1667, 91st Cong., 2d Sess. 8 (1970).  As a sponsor
of Section 1008 explained, "the committee members clearly intend that
abortion is not to be encouraged or promoted in any way through this
legislation." 116 Cong. Rec. 37,375 (1970)(Rep. Dingell).  Petitioners
challenge the Secretary's regulations implementing Section 1008.  See
42 C.F.R. 59.7-59.10.

   1. The Secretary's regulations are the product of nearly 20 years
of experience in funding Title X family planning projects.  /1/ The
Secretary's initial regulations, which remained largely unchanged from
1971 to 1986, did not provide clear guidance on the scope of Section
1008.  They simply required that a grantee's application state that
the Title X "project will not provide abortions as a method of family
planning." 36 Fed. Reg. 18,465, 18,466 (1971);  42 C.F.R.
59.5(a)(9)(1972)(J.A. 21).  See 45 Fed. Reg. 37,433, 37,437 (1980);
42 C.F.R. 59.5(a)(5) (1986) (J.A. 25-26).  /2/ During this period, HHS
interpreted Title X to prohibit Title X projects from engaging in
activities that "in any way promot(e) or encourag(e) abortion as a
method of family planning." 53 Fed. Reg. 2922, 2923 (1988) (describing
previous HHS guidelines and internal memoranda).  See Pet. App.
42a-43a.  However, HHS construed Title X to allow, and later required,
that Title X projects provide "non-directive" counseling about
pregnancy termination, including information about and referral for
abortions through the provision of the names, addresses, and telephone
numbers of abortion providers.  Id. at 42a.  See 53 Fed. Reg. 2923
(1988).  /3/

   In 1982, the General Accounting Office (GAO) and HHS's Office of
the Inspector General (OIG) completed investigations into alleged
misuses of Title X funds.  See 53 Fed. Reg. 2923-2924 (1988).
Auditing 14 clinics receiving Title X grants, the GAO found that a
number of clinics were engaging in various questionable practices,
including:  (1) providing both family planning services and separately
funded, abortion-related activities at a single site;  (2) providing
family planning counseling that did not present alternatives to
abortion;  (3) engaging in referral practices that went beyond the HHS
referral policy;  (4) providing literature that promoted abortion as a
back-up method of family planning;  and (5) engaging in abortion
lobbying activities.  See GAO, Restrictions on Abortion and Lobbying
Activities in Family Planning Programs Need Clarification (Sept. 24,
1982) (hereinafter GAO Report) (J.A. 82-136).  See 53 Fed. Reg. 2924
(1988) (describing practices).  The GAO concluded that HHS "needs to
set forth clear guidance on the scope of abortion restrictions in its
title X program regulations and guidelines" and "needs to make its
guidance (with respect to abortion advocacy) more specific and
consistent." J.A. 82.  See also J.A. 88, 110-111, 120-122, 129.  For
its part, the OIG found, based on audits of 32 Title X projects, that
HHS's failure to provide specific program guidance as to the scope of
Title X's abortion restriction had created confusion about what
activities were proscribed and had led to variations in grantee
practices.  53 Fed. Reg. 2924 (1988).  Like GAO, the OIG recommended
that HHS "give more specific, formalized direction to programs about
the extent of prohibition on abortion as a method of family planning."
Id. at 2923-2924.

   On September 1, 1987, the Secretary of HHS published a notice of
proposed rulemaking to clarify the scope of Section 1008's
prohibition.  See 52 Fed. Reg. 33,210 (1987).  The notice recited the
GAO and OIG findings, proposed new regulations responding to those
findings, and invited public comment.  The resulting comments
confirmed the GAO and OIG determinations that the Secretary's past
policies had provided ineffective guidance to Title X grantees:

      Many comments argued that the practice o(f) nondirective
      counseling has been the subject of widespread abuse, with many
      providers foregoing (sic) any balanced discussion of options in
      favor of pressuring women, particularly teenagers, into
      obtaining abortions.  Numerous comments were received from women
      who said that they were never presented with any favorable or
      neutral information on any other option.  Many of these
      commenters specifically mentioned experiences with particular
      Title X grantees or projects.

53 Fed. Reg. 2924 (1988).  See also id. at 2924-2925 (citing and
quoting comments).

   The Secretary accordingly adopted the regulations at issue here to
resolve the ongoing uncertainty and confusion concerning the use of
Title X funds;  to prevent the abuses that the GAO, the OIG, and
public comments had documented;  and to effectuate more faithfully the
underlying congressional policy, embodied in Section 1008, against the
use of Title X funds in any way to encourage or promote abortion.  See
53 Fed. Reg. 2922 (1988).  The regulations first clarify, through a
definition of the term "family planning" (42 C.F.R. 59.2), that
Congress intended Title X funds to "be used only to support preventive
family planning services" (H.R. Conf. Rep. No. 1667, supra, at 8
(emphasis added)).  /4/ The regulations then address the three major
sources of GAO and OIG concern:  (a) abortion counseling and referral
(42 C.F.R. 59.8);  (b) program integrity (42 C.F.R. 59.9);  and (c)
abortion advocacy (42 C.F.R. 59.10).

   a. Abortion Counseling and Referral.  The Secretary determined that
allowing Title X projects to engage in abortion counseling and
referral is inconsistent with Title X's limited function of funding
pre-pregnancy family planning services and with HHS's longstanding
policy of forbidding Title X funded activities that promote or
encourage abortion.  See 52 Fed. Reg. 33,211 (1987).  Section 59.8 of
the new regulations accordingly specifies that "(a) Title X project
may not provide counseling concerning the use of abortion as a method
of family planning or provide referral for abortion as a method of
family planning." 42 C.F.R. 59.8(a)(1).  Furthermore, if "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." 42 C.F.R. 59.8(a)(2).  In that situation, the Title X
project's preventive family planning services are no longer apposite,
and the project must direct the client to a prenatal care facility
that, unlike a Title X project, can provide pregnancy counseling and
obstetric or other pregnancy-related care.  /5/

   Section 59.8 does not prohibit referrals to prenatal care
facilities that also provide abortions, nor does it limit in any way
the information or services that a referred client might receive at a
prenatal care facility.  That facility may provide the woman with
counseling about abortion and, indeed, may perform an abortion.
Section 59.8 provides, however, that

         (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
      health care providers which perform abortions, by including on
      the list of referral 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 C.F.R. 59.8(a)(3).  The new regulations do not prevent a Title X
project from advising its clients that it provides only preventive
family planning and infertility services -- i.e., that it is concerned
with pre-pregnancy planning only -- and that it does not assist in
procuring abortions and abortion services.

   b. Program Integrity.  The Secretary also determined that new
requirements were necessary to strengthen HHS's existing policy
requiring that if a Title X grantee provides abortion services, those
services must be "separate and distinct" from a Title X funded
project.  See 52 Fed. Reg. 33,212 (1987).  /6/ Section 59.9 therefore
provides that a Title X grantee must structure its Title X project "so
that it is physically and financially separate" from other parts of a
grantee's organization that might provide abortion services.  42
C.F.R. 59.9.  Section 59.9 states that the Secretary will make a
case-by-case determination of "objective integrity and independence"
based upon (but not limited to) factors such as (a) the existence of
separate accounting records;  (b) the degree of separation from
facilities (e.g., treatment, consultation, examination, and waiting
rooms) in which prohibited activities occur and the extent of such
prohibited activities;  (c) the existence of separate personnel;  and
(d) the extent to which signs and other forms of identification of the
Title X project are present and signs and material promoting abortion
are absent.  42 C.F.R. 59.9.

   c. Abortion Advocacy.  Finally, the Secretary concluded that
allowing Title X projects to engage in abortion advocacy is
inconsistent with congressional intent and HHS's longstanding policy
of forbidding Title X funded activities that promote or encourage
abortion.  See 52 Fed. Reg. 33,212 (1987).  Section 59.10 accordingly
states that "(a) Title X project may not encourage, promote or
advocate abortion as a method of family planning." 42 C.F.R. 59.10(a).
 /7/ The regulation does not prevent a Title X grantee (as distinct
from the Title X project run by the grantee) from engaging in
abortion-related advocacy.

   The Secretary explained at length that the three basic conditions
embodied in these regulations are necessary to assure that grantees
compy with Title X in administering their federally funded Title X
projects and to facilitate HHS monitoring of compliance.  53 Fed. Reg.
2923-2943 (1988);  52 Fed. Reg. 33,210-33,213 (1987).

   3. Petitioners initiated these consolidated actions against the
Secretary to challenge the facial validity of the regulations.
Petitioners argued that the regulations are inconsistent with Title X,
including Section 1008's restriction on the use of funds "in programs
where abortion is a method of family planning" (42 U.S.C. 300a-6), and
that the regulations violate the First and Fifth Amendments.  The
district court granted summary judgment for the Secretary, rejecting
all of petitioners' challenges to the regulations.  Pet. App. 9a-32a.
The court of appeals affirmed.  Id. at 35a-67a.

   The court of appeals first addressed petitioners' contention that
Title X does not authorize the regulations in question.  Pet. App.
46a-53a.  It rejected as "highly strained" petitioners' argument that
Section 1008 forbids Title X projects only from performing abortions.
Id. at 47a.  The court explained that a "principal function" of Title
X projects is counseling and that a project that counsels clients
concerning abortion includes abortion among its "methods of family
planning." Ibid.  Thus, "the natural construction of Section 1008 is
that the term 'method of family planning' includes counseling
concerning abortion." Ibid.

   The court found this construction consistent with Title X's
legislative history.  It observed that petitioners' "contrary view of
the legislative history is based entirely on highly generalized
statements about the expansive scope of family planning services"
(Pet. App. 48a) that "do not specifically mention counseling
concerning abortion as an intended service of Title X projects" and
that "surely cannot be read to trump a section of the statute that
specifically excludes it" (id. at 49a).  The court found
post-enactment legislative history relied upon by petitioners to be
"unenlightening." Id. at 49a-50a.

   The court also rejected petitioners' argument that the Secretary is
bound by prior administrative constructions of the statute.  Pet. App.
50a-53a.  The court explained that an agency is entitled to "consider
varying interpretations and the wisdom of its policy on a continuing
basis" (id. at 51a).  Here, "the Secretary has concluded that prior
policy failed to implement the statute" and properly revised that
policy through new regulations that "are fully consistent" with the
statute.  Ibid.

   The court of appeals likewise rejected petitioners' Fifth Amendment
challenge.  Pet. App. 53a-56a.  The court explained that this Court's
recent decision in Webster v. Reproductive Health Services, 109 S. Ct.
3040 (1989), "clearly refutes" petitioners' contention that the
regulations impermissibly burden the right discerned in Roe v. Wade,
410 U.S. 113 (1973), to obtain an abortion.  Pet. App. 55a.  The court
of appeals observed that the regulations, which simply prohibit
federal funding of abortion counseling, referral, or advocacy, do not
place any "affirmative legal barriers to access to abortion." Ibid.

   Finally, the court of appeals rejected petitioners' contention that
the First Amendment prohibits the government from limiting the use of
federal funds for abortion counseling, referral, or advocacy.  The
court explained that, under Regan v. Taxation With Representation
(TWR), 461 U.S. 540 (1983), the government has no obligation to
subsidize even the "exercise of fundamental rights," including "speech
rights." Pet. App. 56a.  Moreover, the court noted, the regulations do
not "condition receipt of a benefit on the relinquishment of
constitutional rights." Id. at 57a.  Grantees and their employees
"remain free to say whatever they wish about abortion outside the
Title X project." Ibid.  The court also held that the regulations "do
not facially discriminate on the basis of the viewpoint of the speech
involved." Id. at 59a.  "Argumentation pro or con as to the
advisability of an abortion for a particular woman is neither required
nor authorized.  * * * Nor do the regulations in any way suggest that
Title X funds may be used for public anti-abortion advocacy." Ibid.

   Judge Cardomone concurred in the majority opinion and wrote a
separate opinion.  Pet. App. 60a-62a.  Judge Kearse dissented in part.
 Id. at 62a-67a.  She concluded that the new abortion counseling and
referral regulations are arbitrary and capricious and also violate the
First and Fifth Amendments.  /8/

                          SUMMARY OF ARGUMENT

   Petitioners contend that the Secretary's regulations violate the
constitutional rights of Title X participants and are inconsistent
with the statute.  The court of appeals correctly rejected these
arguments.  Petitioners' constitutional arguments, disrobed of their
rhetoric, rest on the assertion that the government is obligated to
subsidize abortion-related services.  Their statutory arguments, which
the court of appeals aptly described as "highly strained" (Pet. App.
47a), are inconsistent with Title X's language, purpose, and
legislative history.

   Petitioners incorrectly contend that the Secretary's regulations,
which limit Title X projects to the provision of pre-pregnancy family
planning services, burden the qualified right announced in Roe v.
Wade, 410 U.S. 713 (1973), to choose to have an abortion.  While under
Roe the government may not prohibit a woman from choosing to have a
first trimester abortion, this Court has repeatedly held that the
government is not obligated to provide the means to exercise any such
right.  Thus, the government need not finance the provision of
information about abortion, whether the information is provided in the
form of abortion counseling, referral, or advocacy.  Petitioners'
contention that the Secretary's regulations require Title X projects
to "mislead" their clients is categorically false.  The regulations do
not permit the project to provide abortion counseling or referral, but
they do not prevent the project from informing its clients that the
project provides only pre-pregnancy family planning services and that
a client must go elsewhere for post-pregnancy counseling and care.

   Petitioners are also mistaken in contending that the Secretary's
regulations violate the First Amendment rights of Title X
participants.  The government can selectively fund a program to
encourage certain activities that are in the public interest without
providing funds to encourage other activities that a private
individual wishes to promote.  In this case, the government has made a
decision to provide federal subsidies for pre-pregnancy family
planning and infertility services, but it has decided not to fund
activities that "promote or encourage" abortion.  The government
regulations limit the Title X project's activities, but they do not
prevent a Title X grant recipient, its employees, or its clients from
advocating and pursuing other objectives outside of the Title X
project itself.

   Finally, petitioners' contention that Title X does not authorize
the Secretary's regulations is without merit.  As the court of appeals
explained, the Secretary's regulations are consistent with the
language and history of Title X, which make clear that federal funding
is not available for programs "where abortion is a method of family
planning." Section 1008, 42 U.S.C. 300a-6.  HHS has consistently taken
the position that Title X funds are not available to fund projects
that "promote or encourage" abortion.  The Secretary's regulations,
which clarify the scope of this restriction, are reasonable and
necessary to assure that Title X funds are applied only to those
activities that Congress wished to promote.

                               ARGUMENT

   Petitioners challenge the Secretary's Title X regulations on both
constitutional and statutory grounds.  Since petitioners place
greatest emphasis on their constitutional arguments (see Rust Br.
13-39, N.Y. Br. 31-49), we address those contentions first and show,
as the court of appeals held, that the regulations do not
impermissibly burden the Fifth Amendment rights of Title X project
clients or the First Amendment rights of Title X project participants.
 We then demonstrate, as the court of appeals also held, that the
regulations properly implement the statute.

   I. THE REGULATIONS DO NOT VIOLATE THE FIFTH AMENDMENT

   Petitioners argue that the Secretary's regulations impermissibly
burden the qualified right discerned in Roe v. Wade, 410 U.S. 113
(1973), to choose to have an abortion.  See Rust Br. 31-36;  N.Y. Br.
47-49.  We continue to believe that Roe was wrongly decided and should
be overruled.  As more fully explained in our briefs, filed as amicus
curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990);  Webster v.
Reproductive Health Services, 109 S. Ct. 3040 (1989);  Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747
(1986);  and City of Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983), the Court's conclusions in Roe that there is a
fundamental right to an abortion and that government has no compelling
interest in protecting prenatal human life throughout pregnancy find
no support in the text, structure, or history of the Constitution.  If
Roe is overturned, petitioners' contention that the Title X
regulations burden the right announced in Roe falls with it.  But even
under Roe's strictures, the Title X regulations at issue do not
violate due process.

   This Court has repeatedly recognized that "the Due Process Clauses
generally confer no affirmative right to governmental aid, even where
such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the
individual." Webster, 109 S. Ct. at 3051 (quoting DeShaney v.
Winnebago County Dep't of Social Services, 109 S. Ct. 998, 1003
(1989)).  Thus, while under Roe the government may not prohibit a
woman, during the first trimester, from choosing to have an abortion,
the government is not obligated to provide the means to exercise any
such right.  See Webster, 109 S. Ct. at 3051-3053;  Harris v. McRae,
448 U.S. 297, 312-318 (1980);  Poelker v. Doe, 432 U.S. 519, 521
(1977);  Maher v. Roe, 432 U.S. 464, 473-474 (1977).  Indeed, as this
Court has expressly stated, the government "may 'make a value judgment
favoring childbirth over abortion, and . . . implement that judgment
by the allocation of public funds.'" Webster, 109 S. Ct. at 3052
(quoting Maher, 432 U.S. at 474).  Webster made it clear that

      the State's decision * * * to use public facilities and staff to
      encourage childbirth over abortion "places no governmental
      obstacle in the path of a woman who chooses to terminate her
      pregnancy." McRae, 448 U.S., at 315.  Just as Congress' refusal
      to fund abortions in McRae left "an indigent woman with at least
      the same range of choice in deciding whether to obtain a
      medically necessary abortion as she would have had if Congress
      had chosen to subsidize no health care costs at all," id. at
      317, Missouri's refusal to allow public employees to perform
      abortions in public hospitals leaves a pregnant woman with the
      same choices as if the State had chosen not to operate any
      public hospitals at all.

109 S. Ct. at 3052 (parallel citations omitted).

   This Court's decisions in Webster, McRae, Poelker, and Maher
establish that the government need not finance abortions or provide
public facilities and personnel for their performance.  By the same
token, the government need not finance the provision of information
about abortion, whether that information is provided in the form of
counseling, referral, or advocacy.  Even assuming what we do not
concede, what has not been shown, and what is hardly intuitive -- that
a woman may encounter difficulty in obtaining abortion information if
Title X projects do not provide abortion counseling, referral, or
advocacy -- that difficulty is not a government-created obstacle.  The
woman is in precisely the same position she would occupy if Congress
had not enacted Title X.  See McRae, 448 U.S. at 316.  She "suffers no
disadvantage as a consequence" of the Secretary's Title X regulations,
because "she continues as before to be dependent on private sources
for the services she desires." Maher, 432 U.S. at 474.  The
government's choice not to have its funds spent on abortion
counseling, referral, or advocacy is simply not an infringement on any
right to engage in those activities.  As this Court explained in
McRae, 448 U.S. at 317 n.19, "refusal to fund protected activity,
without more, cannot be equated with the imposition of a 'penalty' on
that activity." /9/

   Petitioners contend, however, that the regulations place an
obstacle in the path of a woman's choice to have an abortion by
requiring Title X projects to "misinform" and "mislead" their clients
concerning the scope of available medical services.  See Rust Br.
31-32, 34, 36;  N.Y. Br. 48.  Not so.  The regulations state that a
Title X project can provide only certain types of family planning
services, but they in no wise prevent the project from acknowledging
that fact.  To the contrary, the Title X regulations leave a
participating project and its employees entirely free to advise
clients that the project provides a service but only a limited
service:  it provides only pre-pregnancy services, and clients should
go elsewhere if they desire either abortion-related counseling and
services or obstetric care in carrying the child to term.  Similarly,
a Title X project is entirely free to advise those who are pregnant
that the project's referral list of prenatal care facilities (see 42
C.F.R. 59.8(a)(2)) includes providers that promote the welfare of the
mother and the unborn child and does not include entities whose
principal business is the provision of abortions.  Thus, the
regulations do not require Title X projects to deceive their clients.
/10/ Petitioners' contention that the regulations require "(m)andatory
distortion of relevant medical information" (Rust Br. 31-32) is
categorically false.  /11/

   Petitioners are also incorrect in asserting that the regulations
intrude in an unconstitutional manner on the woman's relationship with
her physician.  See Rust Br. 32-33;  N.Y. Br. 47, 48-49.  Petitioners
rely on Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) and City of Akron v. Akron Center
for Reproductive Health, 462 U.S. 416 (1983), which invalidated laws
designed to regulate the information that any physician practicing in
a State could provide to any patient concerning abortion-related
matters.  /12/ The Title X regulations, by contrast, affect only those
women who elect to participate in a federally subsidized program
designed to provide only pre-pregnancy family planning and infertility
services.  The regulations do not prevent a woman from obtaining
abortion information;  she simply must seek it from a source other
than a Title X project.  As this Court has stated, "the critical
factor is whether she receives the necessary information and
counseling from a qualified person, not the identity of the person
from whom she obtains it." See Akron, 462 U.S. at 448.  Thus, Title X
and the Secretary's regulations do not conflict with Akron and
Thornburgh.  Rather, they merely define the scope of the services that
a federally subsidized Title X health care professional may provide in
the context of a specific, limited program.

   Nor do the regulations violate due process by unduly delaying the
exercise of rights under Roe.  See Rust Br. 34;  N.Y. Br. 48.  No one
is required to visit a Title X project before seeking an abortion or
abortion-related counseling;  any "delay" occasioned by such a visit
is caused by the volitional act of the individual rather than the
operation of law.  /13/ The client can leave at once upon learning
that the Title X project does not provide abortion-related counseling
or referral, if that is her wish, and immediately seek those services
elsewhere.  Thus, the regulations do not deny, or even meaningfully
delay, "the effective opportunity for an abortion." See Planned
Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 491 n.16 (1983).  Indeed,
the delay generally should be no greater than the delay that would
result if, as in the past, the Title X project provided non-directive
abortion counseling but required the client to go elsewhere to obtain
an abortion.  See 53 Fed. Reg. at 2937-2938.  Cf. Hodgson v.
Minnesota, 110 U.S. 2926, 2944 (1990) (opinion of Justice Stevens) (a
statutory "48-hour waiting period may run concurrently with the time
necessary to make an appointment for the procedure, thus resulting in
little or no delay").  /14/

   II. THE REGULATIONS DO NOT VIOLATE THE FIRST AMENDMENT

   Petitioners further argue that the regulations violate the "free
speech rights of private health care organizations that receive Title
X funds, of their staff, and of their patients." Rust Br. 13;  see
N.Y. Br. 32.  Petitioners specifically contend that the regulations
impermissibly "impose viewpoint-discriminatory conditions on
government subsidies" and "penaliz(e) speech funded with non-Title X
monies." Rust Br. 14, 24;  see N.Y. Br. 32, 41, 42.  Petitioners'
arguments are incorrect and reflect a mistaken understanding of the
First Amendment's application to the Title X program.

   1. This Court has repeatedly rejected the "notion that First
Amendment rights are somehow not fully realized unless they are
subsidized by the State." Regan v. Taxation With Representation (TWR),
461 U.S. 540, 546 (1983) (quoting Cammarano v. United States, 358 U.S.
498, 515 (1959) (Douglas, J., concurring)).  See also Lyng v.
International Union, 485 U.S. 360, 369 (1988);  Buckley v. Valeo, 424
U.S. 1, 93-95 (1976).  Thus, the government can selectively fund a
program that "encourage(s) actions deemed to be in the public
interest" (Maher, 432 U.S. at 476) without providing funding to
encourage other actions that a private individual wishes to promote.
See id. at 476-477.  /15/ The Court's reasoning here closely follows
its reasoning in the Fifth Amendment context (pp. 13-15, supra):

      "although government may not place obstacles in the path of a
      (person's) exercise of . . . freedom of (speech), it need not
      remove those not of its own creation."

TWR, 461 U.S. at 549-550 (brackets and ellipsis in original, quoting
McRae, 448 U.S. at 316).  /16/

   The Title X regulations are consistent with these principles.  The
government has made a decision to provide federal subsidies for a
concededly valid purpose:  the promotion of pre-pregnancy family
planning and infertility services for low-income individuals.  But the
government has decided against funding actions to "promote or
encourage" abortion, whether those actions take the form of abortion
counseling, referral, or advocacy.  The government's decision against
funding the exercise of what might amount to "speech" concerning
abortion imposes no affirmative obstacle on the person who is free to
engage in such speech without federal funding, and therefore does not
infringe any constitutional right.  See TWR, 461 U.S. at 549.

   Petitioners argue that the Court's reasoning in TWR, McRae, and
Maher is inapposite because the Title X regulations subject Title X
grant recipients, their employees, and their clients to discriminatory
treatment "on the basis of viewpoint." Rust Br. 15;  N.Y. Br. 32.
They contend -- based on this Court's decisions in Arkansas Writers'
Project v. Ragland, 481 U.S. 221 (1987), and FCC v. League of Women
Voters, 468 U.S. 364 (1984), and dicta in TWR, 461 U.S. at 548 -- that
the regulations are accordingly unlawful.  Rust Br. 17;  see N.Y. Br.
38-39.  Petitioners are mistaken as to both their premise and the
import of those cases.  The regulations governing how federal money is
spent do not place impermissible burdens on the expressive conduct of
grantees, employees, or clients.

   a. Grant Recipients.  Petitioners are manifestly wrong in
suggesting that the Title X regulations restrict the speech of Title X
grant recipients.  A Title X grantee and a Title X project are two
distinct entities.  The grantee, which is normally a health care
organization (Rust Br. 13), may receive funds from a variety of
sources for a variety of purposes.  See Rust Br. 3 n.5.  However, it
receives Title X funds for the specific and limited purpose of
establishing and operating a Title X project (Section 1001(a), 42
U.S.C. 300(a)).  The Secretary's regulations govern the scope of the
project's activities.  /17/ The grantee, however, can continue to
perform abortions, provide abortion-related services, and engage in
abortion advocacy.  The grantee is simply required to conduct those
activities through programs that are separate and independent from the
project that receives federal funds.  See 42 C.F.R. 59.9.

   The Court's decisions in Arkansas Writers' Project and FCC, and the
dicta in TWR, all involve restrictions imposed on the recipient of the
subsidy rather than on the specific subsidized service.  Those are two
quite different forms of restrictions.  /18/ The Court's decision in
FCC illustrates the importance of the distinction.  In FCC, the Court
invalidated a federal law providing that noncommercial television and
radio stations that receive federal grants may not "engage in
editorializing." 468 U.S. at 374-402.  In that case, the statute
imposed a "content-based" restriction directly on the media grantee.
In this case, by contrast, the government restrictions are not imposed
on the grantee, but rather on the specific Title X project that the
grantee produces.  The facts in FCC would bear some similarity to the
present case if the government had offered the broadcaster a federal
grant to produce a specific broadcast program, subject to certain
content-based conditions.  But under FCC's reasoning, such grants
would be permissible because the station would be "able to segregate
its activities according to the source of its funding." 468 U.S. at
400.  Indeed, part of the very purpose of the regulations at issue
here is to implement such segregation.  /19/

   More generally, the government is entitled to participate in public
discourse.  See Block v. Meese, 793 F.2d 1303, 1312-1314 (D.C. Cir.),
cert. denied, 478 U.S. 1021 (1986).  Indeed, petitioners acknowledge
as much.  Rust Br. 23;  N.Y. Br. 39 n.40.  For example, we submit that
the government could offer a television station a grant to produce a
documentary that discusses family planning techniques but does not
provide abortion counseling, or otherwise promote, encourage, or
advocate abortion.  In that circumstance, the government is acting as
a "participant in the marketplace of ideas" rather than as "a
regulator of expression." The government's decision to enter the
marketplace by "contracting out" the production of that message does
not violate the First Amendment rights of the grantee who voluntarily
decides to produce the program.  /20/ If the First Amendment allows
the government to fund that broadcast program, which involves
expressive conduct, it certainly must permit the government to fund
the services themselves.  /21/

   Indeed, the Secretary's regulations can be said to restrict a grant
recipient's freedom of expression in only the most attenuated way:
grantees must conduct any abortion counseling and advocacy through
programs that are separate and distinct from the federally funded
program.  See 42 C.F.R. 59.9.  That restriction, which is designed to
assure "program integrity" (ibid.), plainly is permissible.  This
Court has recognized that the government's power to spend government
funds for public purposes includes an ancillary power to assure that
those funds are properly applied to the prescribed use.  /22/ The
Secretary's program integrity regulation, which states that the "Title
X project must be organized so that it is physically and financially
separate" from prohibited activities (43 C.F.R. 59.9(a)), is a
reasonable condition on the receipt of Title X funds.  The regulation
is specifically designed to assure that Title X grantees do not mix
federally subsidized activities with non-subsidized activities in a
manner that results in, or creates the appearance of, the government
funding abortion as a method of family planning.  The regulation,
which is applied on a case-by-case basis (see p. 8, supra), is
narrowly tailored to assure that Title X funds are expended for the
intended government purposes.  /23/ The restriction bears a rational
and close relationship to the purpose of the subsidy.  /24/

   b. Employees of Grant Recipients.  Similarly, petitioners are wrong
in arguing that the Secretary's regulations abridge the "free speech"
rights of the grantee's "staff" (Rust Br. 13).  The grantee may employ
persons to carry out the Title X project's functions, and those
persons who voluntarily accept employment as Title X project personnel
must perform duties in accordance with the Title X project's objects
and purposes.  The First Amendment does not entitle Title X project
personnel to use the federal funds to defeat or compromise the
objectives of the federally-funded project.  The Secretary's
regulations provide that the Title X project (and hence employees
implementing the project's objectives) may not engage in abortion
counseling and advocacy activities.  The employees remain free,
however, to pursue abortion-related activities, whether favoring or
opposing abortion, when they are not acting under the auspices of the
Title X project.  42 C.F.R. 59.10(b)(6) and (7).  See Pet. App. 57a.

   The Court's decision in FCC illustrates again the flaws in
petitioners' challenge.  As we explained above, the government's
funding of a health care organization's Title X project would be
analogous, for First Amendment purposes, to the government's funding
of a television station's broadcast program that describes, in
documentary form, pre-pregnancy preventive family planning techniques.
 The grant recipient's employees that implement the Title X project
stand in the same shoes, for First Amendment purposes, as the
broadcaster's employees who direct and prepare the documentary.  It
would be a curious extension of First Amendment principles to hold
that the government's specification of the content of a federally
funded documentary program violates the First Amendment rights of the
program director or the health care professionals who choose to appear
in the program.  Yet, that is exactly what petitioners argue here.
/25/

   Simply put, the grant recipient, by accepting the federal subsidy,
is obligated to comply with the conditions of the federal grant.  The
grant recipient's employees, as a matter of the employment
relationship, are obligated to comply with the grant recipient's
directions.  Thus, any limitation on the employees' freedom of
expression arises from their voluntary decision to enter a particular
employment relationship.  The government's federally funded grant may
have enabled the grant recipient to offer job options that some may
not wish to exercise, but it has not violated any First Amendment
rights.  See TWR, 461 U.S. at 549-550 (the government need not remove
"obstacles in the path of a (person's) exercise of . . . freedom of
(speech)" that are "not of its own creation" (brackets and ellipsis in
original)).  /26/

   In short, Title X project personnel do not have a First Amendment
right to use Title X project resources for purposes that are
inconsistent with Title X project objectives.  They remain free,
however, to pursue abortion-related activities, whether favoring or
opposing abortion, on their time and with their own resources.  The
Secretary's regulations, which govern only the scope of Title X
project activities (see note 17, supra), do not in any way restrict
the activities of those persons acting as private individuals.

   c. Clients.  Petitioners are also incorrect in arguing that the
Secretary's regulations abridge the "free speech" rights of Title X
project clients.  As we have explained (pp. 13-18, supra), the
government's decision to deny funding for abortion counseling,
referral, and advocacy does not violate a woman's exercise of rights
under Roe.  See McRae, 448 U.S. at 316.  By the same token, it does
not violate any conceivable First Amendment right.  Again, the Court's
decision in FCC demonstrates the fallacy in petitioner's reasoning.
In our television analogy, a Title X project client occupies the same
position, for First Amendment purposes, as the audience for the
government-funded documentary.  Petitioners argue, in essence, that
the government's funding of a program that provides family planning
information -- but only on pre-pregnancy preventive techniques --
violates the audience's First Amendment rights, because the audience
wants to see a different program -- one that includes post-pregnancy
information.  That extravagant contention finds no support in First
Amendment law.  To pursue the analogy, the person who wants to see
that different program need only turn the channel.  The government is
not required to fund all the possible programs an audience may wish to
watch before it may fund any program.

   As we observed above (p. 22, supra), petitioners acknowledge that
the government may participate in the "marketplace of ideas." Rust Br.
23;  N.Y. Br. 39 n.40.  Having conceded that, petitioners cannot
reasonably argue that the First Amendment prevents the government from
providing family planning information.  /27/ Similarly, petitioners
cannot reasonably contend that the First Amendment prevents the
government from limiting the subject of its "program" to pre-pregnancy
family planning techniques.  /28/ Petitioners do not contend that the
government is conveying false information, and they are plainly
incorrect in suggesting that the information is misleading.  Their
objection is simply that the government has failed to fund the message
they wish to hear -- an objection more properly addressed to the
political branches responsible for funding decisions.

   Ultimately, petitioners are left to argue that "the Title X program
is often the only 'marketplace' in which low-income women can obtain
medical counsel and information." Rust Br. 23-24.  In effect, they
contend that the government has "monopolized" the market for
information about the availability of abortion.  Id. at 24.  The
government, however, has expressly refused to enter that market:  the
regulations, by their terms, specifically provide that Title X
projects "may not provide counseling concerning the use of abortion as
a method of family planning." 42 C.F.R. 59.8(a)(1).  Moreover, if it
is a woman's income that constrains her from obtaining abortion
information, we have simply returned to where we began:  this Court
has repeatedly rejected the "notion that First Amendment rights are
somehow not fully realized unless they are subsidized by the State."
TWR, 461 U.S. at 546.

   2. Petitioners also contend that the Secretary's regulations
"violate the First Amendment by penalizing speech funded with
non-Title X monies" (Rust Br. 24).  They argue that since Title X
requires that grant recipients contribute to the financing of Title X
projects through the use of "matching funds" and grant-related income,
the government restrictions on abortion counseling and advocacy
"penalize" privately funded speech.  See id. at 24-31;  N.Y. Br.
42-46.  /29/

   Petitioners' argument suffers from the same flaw that infects their
previous assertions:  the Secretary's regulations do not restrict the
grant recipient's freedom of expression, they instead restrict the
content of a specific, federally subsidized project.  Our television
analogy again is instructive.  The government does not infringe the
First Amendment rights of a television station by offering to
subsidize a particular broadcast program even if the government
conditions its subsidy on the station contributing matching or
program-generated funds.  The reason is self-evident:  if the station
objects to the useof its funds, then it can decline to produce the
program.  Similarly, if petitioners object to the use of their funds
in a Title X project -- for whatever reason -- they can simply decline
the subsidy.  /30/

   These principles are not novel.  The government "may attach
conditions on the receipt of federal funds, and has repeatedly
employed the power 'to further broad policy objectives by conditioning
receipt of federal moneys upon compliance by the recipient with
federal statutory and administrative directives.'" South Dakota v.
Dole, 483 U.S. 203, 206 (1987).  The government frequently requires,
as was the case in South Dakota, that the recipient contribute
matching funds (see 23 U.S.C. 123).  /31/ This Court has never
suggested that a grant recipient who contributes matching funds is
entitled to dictate the objectives or purposes of the federal program,
or that the recipient is entitled to apply his contribution to the
program to his personal objectives.  /32/ Indeed, in Buckley v. Valeo,
424 U.S. 1 (1976), the Court held, in response to First and Fifth
Amendment challenges, that the government's power to restrict the use
of public campaign funds includes the power to limit private campaign
expenditures of those who receive public funds.  See id. at 92-93, 99.
 The government's condition does not "penalize" speech in that context
because the candidate has the option to decline the subsidy.  /33/ So
too here:  grant recipients can choose between accepting Title X funds
-- subject to the government's conditions that they provide matching
funds and forgo abortion counseling or advocacy in the project -- or
financing their own unsubsidized program.  /34/ The First Amendment
does not prohibit the government from offering that choice.  /35/

   III. TITLE X AUTHORIZES THE SECRETARY'S REGULATIONS

   Petitioners contend that this Court should invalidate the
Secretary's regulations because "they are neither required nor
expressly authorized by the language, structure, or history of Title
X." Rust Br. 37.  See N.Y. Br. 10-31.  The court of appeals (like the
district court) correctly rejected that argument, holding that "the
language and history of Title X are fully consistent with the
regulations challenged in the instant case." Pet. App. 51a.  The other
court of apeals that has addressed the question, the First Circuit, is
largely in agreement with that determination.  /36/ We will show that
the court below is correct, addressing, first, the regulations'
limitations on abortion counseling, referral, and advocacy (42 C.F.R.
59.8, 59.10), and second, the program integrity requirements (42
C.F.R. 59.9).

   1. It is well established that when a court reviews an agency's
construction of a statute that the agency administers, the court must
first inquire "whether Congress has directly spoken to the precise
question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984).  If the statute "is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the agency's answer is based on a permissible
construction of the statute." Id. at 843.  In this case, Section 1008
-- read in light of Title X's structure, purpose and history --
answers the precise question at issue:  Title X projects may not
engage in abortion counseling, referral or advocacy.  But even if the
Court determines that Section 1008 does not address that precise
question, the agency's answer is plainly based on a permissible
construction of the statute.

   a. The starting point for determining Congress's intent is, of
course, the language of the statute.  E.g., Community for Creative
Non-Violence v. Reid, 109 S. Ct. 2166, 2172 (1989).  Section 1008
states:

      None of the funds appropriated under this subchapter shall be
      used in programs where abortion is a method of family planning.

42 U.S.C. 300a-6.  Petitioners concede that this language forbids
Title X family planning projects from performing abortions.  See Rust
Br. 41;  N.Y. Br. 12.  They contend, however, that this is all that
the section prohibits.  In their view, a Title X project may encourage
or promote abortions through counseling, referral, and advocacy.  Rust
Br. 41-44;  N.Y. Br. 11-13.  /37/

   As the court of appeals aptly stated, "(t)his is a highly strained
construction of Section 1008." Pet. App. 47a.  Congress enacted Title
X, among other purposes, to "make readily available information
(including educational materials) on family planning and population
growth to all persons desiring such information." Family Planning
Services and Population Research Act of 1970, Pub. L. No. 91-572,
Section 2(5), 84 Stat. 1504.  A principal function of a Title X
project is to provide clients with "information or 'counseling' as to
a range of methods of family planning." Pet. App. 47a.  If the Title X
project provides information or counseling that characterizes abortion
as a family planning option, then it has become a "program() where
abortion is a method of family planning." 42 U.S.C. 300a-6.  /38/

   As the court of appeals explained, it would make little sense to
say that a program that counseled clients about the use of
contraceptives or referred clients to other entities whose principal
business is the provision of contraceptives is not a program where
contraception is a method of family planning.  See Pet. App. 47a.
Similarly, "it would be wholly anomalous to read Section 1008 to mean
that a program that merely counsels but does not perform abortions
does not include abortion as a method of family planning." Ibid.

   Title X's legislative history confirms that interpretation.  The
Conference Report, which petitioners acknowledge is "a legislative
source entitled to great weight" (N.Y. Br. 14-15), explains:

         It is, and has been, the intent of both Houses that the funds
      authorized under this legislation be used only to support
      preventive family planning services, population research,
      infertility services, and other related medical, informational,
      and educational activities.

H.R. Conf. Rep. No. 1667, supra, at 8-9 (emphasis added).  Thus, the
Conference Report confirms that services directed to the termination
rather than prevention of pregnancy -- such as abortion counseling,
referral, and advocacy -- are not within the scope of the "preventive
family planning services" Congress designed Title X to subsidize.
/39/

   Petitioners do not question the significance of this statement, but
they interpret it differently.  They argue that the quoted statement
implicitly authorizes abortion counseling, referral, and advocacy as
"other related medical, informational, and educational activities."
Rust Br. 45;  N.Y. Br. 14-15.  The context makes clear, however, that
the mission of Title X projects is to provide "preventive family
planning services, population research, (and) infertility services"
(H.R. Conf. Rep. No. 1667, supra, at 8 (emphasis added)) and that the
"other related" activities must be in support of those objectives.  If
a woman seeks information on non-preventive birth control measures she
must go elsewhere.  Similarly, if a client is diagnosed as pregnant,
the Title X project's preventive family planning function is at an
end, and the project must refer the client to an organization that
provides post-pregnancy services.  /40/

   Petitioners rely on several "highly generalized statements about
the expansive scope of the family planning services intended to be
provided by Title X grantees." Pet. App. 48a.  See Rust Br. 45;  N.Y.
Br. 14.  As the court of appeals observed, not one of those statements
indicates that Title X services include abortion-related activities.
Pet. App. 49a.  By contrast, the more specific legislative statements
indicate that Title X services do not include abortion-related
activities.  For example, Congressman Dingell, a principal proponent
of Section 1008, advised his colleagues that "(w)ith the 'prohibition
of abortion' amendment -- title X, section 1008 -- the committee
members clearly intend that abortion is not to be encouraged or
promoted in any way through this legislation." 116 Cong. Rec. 37,375
(1970).  The clear implication is that Title X funds should not be
applied toward abortion or toward activities that "encourage or
promote" abortion.  Thus, the generalized statements petitioners cite
have little value in light of Section 1008's more specific language
and legislative history.  See Chevron U.S.A. Inc., 467 U.S. at 862;
Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers, 325
U.S. 161, 168-169 (1945) (general remarks not probative of Congress's
intent on narrow issue).  /41/

   Petitioners rely most heavily on Title X's "subsequent" legislative
history.  See Rust Br. 46-48;  N.Y. Br. 16-19.  Post-enactment
legislative history, however, provides a "hazardous basis" for
determining the enacting Congress's intent.  Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980).  It is
particularly suspect here.  Congress has not reenacted Title X, nor
has it ever amended Section 1008;  Congress has simply reauthorized
appropriations for the Title X program.  See Pet. App. 49a & n.2.
Congressional committees and individual members have offered opinions
in the course of reauthorizing appropriations, but these statements
cannot somehow change, nunc pro tunc, the meaning of the underlying
statute.  See TVA v. Hill, 437 U.S. 153, 190-193 (1978)
("(e)xpressions of committees dealing with requests for appropriations
cannot be equated with statutes enacted by Congress").  Moreover, as
the court of appeals explained, the statements petitioners cite are
"unenlightening." Pet. App. 49a-50a.  Indeed, the committee reports
that address the issue of abortion counseling with any degree of
specificity are the least likely to reflect collective congressional
intent.  /42/

   Petitioners go so far as to rely not only on post-enactment history
but post-enactment inaction as well.  See Rust Br. 46 n.83;  N.Y. Br.
17-18.  Congress's rejection of various amendments prohibiting
abortion counseling does not establish that Congress approved of that
practice.  See Pet. App. 48a.  /43/ Moreover, as we explain (pp.
40-42, infra), even if Congress's rejection of those amendments
indicated that Congress approved of a past administrative policy of
allowing non-directive counseling (see p. 3, supra), it would not mean
that the Secretary has no discretion to change that policy.  /44/

   b. We believe that Section 1008 prohibits Title X projects from
engaging in abortion counseling and advocacy.  But even if Section
1008 does not address that precise question, the agency's answer is
certainly based on a permissible construction of the statute.  See
Massachusetts v. Secretary of HHS, 899 F.2d 53, 64 (1st Cir. 1990) (en
banc).

   This Court emphasized in Chevron that "when an agency is charged
with administering a statute part of the authority it receives is the
power to give reasonable content to the statute's textual
ambiguities." Department of the Treasury v. FLRA, 110 S. Ct. 1623
(1990).  "That is a task infused with judgment and discretion,
requiring the '"accommodation of conflicting policies that were
committed to the agency's care."'" Ibid. (citations omitted).  The
Secretary properly exercised that judgment and discretion here.

   As we have already shown -- and two counts of appeals have held --
the Secretary's interpretation is consistent with the statute.  Title
X does not define the term "family planning services," nor does it
enumerate precisely what types of medical and counseling services are
entitled to Title X funding and what services are not.  Section 1008
does, however, specifically prohibit funding of "programs where
abortion is a method of family planning" (42 U.S.C. 300a-6), the
Conference Report indicates that Title X is intended to support
"preventive family planning services" (H.R. Conf. Rep. No. 1667,
supra, at 8), and a principal sponsor indicated that "abortion is not
to be encouraged or promoted in any way" (116 Cong. Rec. 37,375
(1970)).  /45/ Thus, since 1972, the Secretary's policy has been to
prohibit Title X projects from performing abortions or engaging in
activities "promoting or encouraging abortion as a method of family
planning." 53 Fed. Reg. 2923 (1988).  See pp. 3-4, supra.  This policy
reflects a proper exercise of the Secretary's responsibility to
administer a statutory program while observing the conditions that
Congress has imposed on the use of public funds.  Cf. OPM v. Richmond,
110 S. Ct. 2465, 2471-2473 (1990);  Heckler v. Community Health
Services, 467 U.S. 51, 63 (1984).  The 1988 regulations implement that
policy.

   Petitioners argue that the Secretary's 1988 regulations are
entitled to "little deference" and are "arbitrary and capricious"
because they depart from previous HHS guidelines and internal
memoranda.  N.Y. Br. 19-26.  Petitioners vastly overstate those
departures.  But, in any event, an agency is entitled to change its
policies.  As this Court has stated:

      An initial agency interpretation is not instantly carved in
      stone.  On the contrary, the agency, to engage in informed
      rulemaking, must consider varying interpretations and the wisdom
      of its policy on a continuing basis.

Chevron, 467 U.S. at 863-864.  Accord NLRB v. Curtin Matheson
Scientific, Inc., 110 S. Ct. 1542, 1549 (1990);  Motor Vehicle Mfrs.
Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983);
American Trucking Ass'n v. Atchison, T. & S.F. R.R., 387 U.S. 397, 416
(1967).  The relevant question is whether an agency's revision of an
existing policy is "rational, based on consideration of the relevant
factors, and within the scope of authority delegated to the agency by
the statute." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 42.  The
Secretary's new regulations clearly meet that test.

   As we have explained (pp. 3-4, supra), HHS has consistently
followed the policy of forbidding Title X projects from activities
that "encourage or promote" abortion;  the question that continually
arose from 1971 through 1981 was whether specific practices were
consistent with that "non-encouragement" policy.  53 Fed. Reg. 2923
(1988).  /46/ In 1981, the Secretary issued guidelines that required
Title X projects to offer "non directive" counseling and referral for
abortion based on the premise that those activities "did not have the
effect of promoting or encouraging abortion." Ibid.  Shortly
thereafter, however, the GAO and OIG issued their reports, finding
that Title X projects were engaging in questionable practices and
recommending that the Secretary "give more specific, formalized
direction to programs about the extent of prohibition on abortion as a
method of family planning." Id. at 2923-2924.  See J.A. 82.  The
Secretary took that advice and in the process of conducting "informed
rulemaking" duly reconsidered "the wisdom of its policy" (Chevron, 467
U.S. at 863-864).  The Secretary determined, for the reasons we have
explained, that abortion counseling, referral, and advocacy are
inconsistent with Section 1008 and "promote or encourage" abortion.
See 53 Fed. Reg. 2923-2924 (1988).  The Secretary also determined,
based on the GAO and OIG findings, that the guidelines set forth in
the regulations were necessary to implement properly the statute and
to prevent program abuses.  Ibid.  He therefore promulgated the
regulations at issue here, responding in detail to public comment,
including the complaints voiced by petitioners in this case.  See id.
at 2924-2943.

   In short, the Secretary examined the relevant data, including the
GAO and OIG reports and public comments, and articulated "a rational
connection between the facts found and the choice made." Motor Vehicle
Mfrs. Ass'n, 463 U.S. at 43.  He did not reach the conclusion that
petitioners would prefer, but that is not the issue.  His decision
"was based on a consideration of the relevant factors" and does not
reflect any "clear error in judgment." Ibid.  See Robertson v. Methow
Valley Citizens Council, 109 S. Ct. 1835, 1848-1849 (1989).  Thus, as
both the First Circuit and the Second Circuit concluded, the abortion
counseling, referral, and advocacy regulations are entitled to
deference and must be upheld.  See Pet. App. 51a-52a;  Massachusetts,
899 F.2d at 62-64.  /47/

   2. Petitioners' challenge to the Secretary's new "program
integrity" regulations (42 C.F.R. 59.9) is likewise flawed.
Petitioners contend that Congress did not authorize the Secretary's
requirement that a Title X project "must be organized so that it is
physically and financially separate" from activities that are
prohibited by Section 1008 (42 C.F.R. 59.9) and, furthermore, that the
requirement is unreasonable.  N.Y. Br. 26, 30;  see Rust Br. 48-50.
Both contentions are incorrect.

   Title X empowers the Secretary to promulgate regulations for
administration of Title X grants and contracts.  See Section 1006(a),
42 U.S.C. 300a-4(a).  This power includes the authority to promulgate
regulations that are "reasonably related to the purposes of the
enabling legislation." Mourning v. Family Publications Service, Inc.,
411 U.S. 356, 369 (1973).  The Secretary's program integrity
regulations are designed to assure that Title X grantees apply federal
funds only to federally authorized purposes and that the grantees
avoid creating the appearance that the government is supporting
unauthorized activities.  /48/ This obviously is a permissible
regulatory objective.

   Furthermore, the specific requirements that the regulation imposes
are in no sense arbitrary.  In fact, HHS has consistently taken the
position that Section 1008 requires some degree of physical and
financial separation between Title X projects and abortion-related
activities.  /49/ However, based on experience, the Secretary
concluded in the course of preparing the 1988 regulations that the
informal guidance that HHS had previously given had failed to assure
adequate separation.  The GAO and OIG reports and testimony from
private individuals revealed that grant recipients frequently failed
to keep their Title X preventive family planning and infertility
services separate from their abortion-related activities;
consequently, there was a real likelihood that federal funds were
being used for prohibited purposes.  See 53 Fed. Reg. 2924 (1988);  52
Fed. Reg. 33,212 (1987).  The Secretary's regulations responded
directly to those findings.  See United States v. Kokinda, 110 S. Ct.
3115, 3124 (1990) (plurality opinion) (change in Postal Service
regulation governing solicitation based on "real-world experience").

   The Secretary's new regulations require HHS to apply four specific
non-exclusive criteria "to make case-by-case determinations as to
whether a given Title X project is physically and financially separate
from prohibited activities." 53 Fed. Reg. at 2940.  These four
requirements are not "arbitrary and capricious";  they are all
rationally related to the objective of assuring that federal funds are
not used to "promote or encourage" abortion.  Indeed, petitioners do
not suggest otherwise.  /50/

   Petitioners' complaint, at bottom, is that the program integrity
regulation is arbitrary because it will cost grantees money in the
form of "duplicating facilities and personnel" (N.Y. Br. 30) and
because it will be applied in an arbitrary manner (id. at 30-31).
Petitioners' first argument, however, is just another way of saying
that Title X projects should subsidize other programs, including
abortion-related services.  As we have shown, that is what Section
1008 is designed to prevent.  Petitioners' second argument goes beyond
the bounds of their ostensibly facial challenge to the regulation.
/51/ Moreover, a grantee can "expect no less than to be held to the
most demanding standards in its quest for public funds." Community
Health Services, 467 U.S. at 63.  This is particularly so when
"real-world experience" has given the Secretary ample reason to
believe that some of those who have sought program funds in the past
have failed to "act with scrupulous regard for the requirements of
law." Ibid.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   JEFFREY P. MINEAR

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   LOWELL V. STURGILL, JR.

      Attorneys

   MICHAEL J. ASTRUE

      General Counsel

   JOEL MANGEL

      Deputy Chief Counsel

   CAROL C. CONRAD

      Attorney Department of Health and Human Services

   SEPTEMBER 1990

   /1/ The terms "Title X project" and "Title X program" are used by
the Secretary interchangeably, and can mean either the "program which
is approved by the Secretary for support" or the "coherent assembly of
plans, activities and supporting resources contained within an
administrative framework." 42 C.F.R. 59.2.  While Title X services may
be delivered through a family planning clinic, the Title X project may
be only one aspect of that clinic.  See Rust Br. 3 n.5.

   /2/ The initial regulations also stated, without reference to
abortion, that a grant application must contain provisions for medical
and social services "related to family planning." 36 Fed. Reg. 18,466
(1971);  42 C.F.R. 59.5(d) and (e) (1972).  See also 45 Fed. Reg.
37,437 (1980);  42 C.F.R. 59.5(b)(1) and (2).

   /3/ See U.S. Dep't of Health and Human Services, Program Guidelines
for Project Grants for Family Planning Services Section 8.6 (1981)
(Pet. App. 71a);  U.S. Dep't of Health, Educ. & Welfare, Program
Guidelines for Project Grants for Family Planning Services (1976)
(Pet. App. 72a).  An HHS internal memorandum from this period
explains:

      This office has traditionally taken the view that Section 1008
      not only prohibits the provision by Title X grantees of abortion
      as a method of family planning as part of the Title X-supported
      program, but also prohibits activities which promote or
      encourage the use of abortion as a method of family planning by
      the Title X-supported program.  Under this view, the provision
      of information concerning abortion services, mere referral of an
      individual to another provider of services for an abortion, and
      the collection of statistical data and information regarding
      abortion are not considered to be proscribed by Section 1008.
      The provision of "pregnancy counseling" in the sense of
      encouraging persons to obtain abortions and the provision of
      transportation to persons to enable them to obtain abortions, on
      the other hand, are considered to be proscribed by Section 1008.
       The test to be applied, then, appears to be whether the
      immediate effect of the activity is to encourage or promote the
      use of abortion as a method of family planning.

Memorandum from Carol C. Conrad, Office of the General Counsel, Dep't
of Health, Educ. & Welfare, to Elsie Sullivan, Ass't for Information
and Education, Office of Family Planning, BCHS (Apr. 14, 1978)
(footnotes omitted) (J.A. 56-57).  See Pet. App. 23a, 42a-43a.
Petitioners' description of these prior policies as "having no bearing
on speech and information between a doctor or counselor and her
patient" (Rust Br. 2) is thus clearly wrong.

   /4/ The regulations state:

         "Family planning" means the process of establishing
      objectives for the number and spacing of one's children and
      selecting the means by which those objectives may be achieved.
      These means include a broad range of acceptable and effective
      methods and services to limit or enhance fertility, including
      contraceptive methods (including natural family planning and
      abstinence) and the management of infertility (including
      adoption).  Family planning services includes (sic)
      preconceptional counseling, education, and general reproductive
      health care (including diagnosis and treatment of infections
      which threaten reproductive capability).  Family planning does
      not include pregnancy care (including obstetric or prenatal
      care).  As required by section 1008 of the Act, abortion may not
      be included as a method of family planning in the Title X
      project.  Family planning, as supported under this subpart,
      should reduce the incidence of abortion.

42 C.F.R. 59.2.

   /5/ The Title X project must also provide the client "with
information necessary to protect the health of mother and unborn child
until such time as the referral appointment is kept." If emergency
care is required, however, the project must "refer the client
immediately to an appropriate provider of emergency medical services,"
even when such emergency services normally would involve an abortion.
See 42 C.F.R. 59.8(a)(2) and (b)(2).

   /6/ HHS regulations are directed at achieving the specific and
narrow purpose of program integrity and thus do not prevent Title X
grant recipients from providing abortion-related services in programs
that do not utilize Title X project funds.  See note 29, infra
(explaining the scope of Title X project funds).

   /7/ The regulation sets forth several specific examples of
prohibited advocacy activities:  (1) lobbying for the passage of
legislation to increase in any way the availability of abortions as a
method of family planning;  (2) providing speakers to promote the use
of abortion as a method of family planning;  (3) paying dues to any
group that as a significant part of its activities advocates abortion
as a method of family planning;  (4) using legal action to make
abortion available in any way as a method of family planning;  and (5)
developing or disseminating in any way materials (including printed
matter and audiovisual materials) advocating abortion as a method of
family planning.  42 C.F.R. 59.10(a).  The Secretary interprets the
statute and the regulations neutrally as barring all forms of
abortion-related advocacy, whether in favor of, or opposed to,
abortion.  With the exception of item 3, these activities were
considered to be prohibited under HHS's prior policies.  See 53 Fed.
Reg. 2942.

   /8/ The Court of Appeals for the First Circuit has ruled that the
Title X regulations are unconstitutional.  See Massachusetts v.
Secretary of HHS, 899 F.2d 53 (1st Cir. 1989) (en banc), petition for
cert. pending, No. 89-1929 (filed June 8, 1990).  But see 899 F.2d at
79 (Torruella, J., dissenting).  In addition, the government has
appealed two district court decisions that have invalidated the
regulations.  See West Virginia Ass'n of Community Health Centers,
Inc. v. Sullivan, 737 F. Supp. 929 (S.D. W. Va. 1990) (partially
invalidating the regulations on constitutional grounds), appeal
pending, No. 90-2366 (4th Cir.);  Planned Parenthood Fed'n v. Bowen,
680 F. Supp. 1465 (D. Colo. 1988) (invalidating the regulations on
statutory and constitutional grounds), appeal pending, No. 88-2251
(10th Cir.).

   /9/ Indeed, the Secretary's Title X regulations have far less
practical effect than the state action upheld in Webster, which
prevented women from obtaining abortions at a hospital "where, in
1985, 97 percent of all Missouri hospital abortions at 16 weeks or
later were performed." Webster, 109 S. Ct. at 3068 n.1 (Blackmun, J.,
dissenting).  The dissenting opinion in Webster concluded that McRae
and Maher were inapposite because the State, in the dissent's view,
"has taken affirmative steps to assure that abortions are not
performed by private physicians in private institutions." Ibid.  That
certainly is not the case here.

   /10/ There is no evidence, or reason to believe, that Title X
projects will fail to acknowledge the limited scope of their services.
 And there is no constitutional requirement that the regulations
explicitly guard against the unlikely prospect that Title X projects
will fail to provide that information.  Cf. Bowen v. Kendrick, 487
U.S. 589, 615 (1988) ("we do not think that the absence of an
limitation on the use of federal funds for religious purposes (in the
Adolescent Family Life Act) means that the statute, on its face, has
the primary effect of advancing religion").  In any event, the
regulations are not subject to facial constitutional attack based on
the anticipation of an implausible event.  See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5
(1982) (law or regulation cannot be held unconstitutional on its face
unless it is incapable of valid application);  Roemer v. Maryland
Board of Public Works, 426 U.S. 736, 761 (1976) ("It has not been this
Court's practice, in considering facial challenges to statutes of this
kind, to strike them down in anticipation that particular applications
may result in unconstitutional use of funds.").

   /11/ Ironically, petitioners use selective placement of ellipses to
support their claim that the regulations require Title X projects to
mislead their clients.  They contend that a "negative message about
abortion will be all that is conveyed" because the regulations require
referral to facilities that "promote the 'welfare of . . . (the)
unborn child,' Section 59.8(a)(2), while providing 'information
necessary to protect the health of . . . (the) unborn child,' id."
Rust Br. 16 (ellipses in original).  The regulations require that the
referral list include facilities that promote the welfare of both the
"mother and unborn child." See 42 C.F.R. 59.8(a)(2).  Presumably, a
woman in need of pregnancy counseling has not decided whether or not
to have an abortion.  During this interim period of indecision, it is
completely reasonable that the health care professional's referral
should preserve both the mother's health and her option to carry the
child to term.

   /12/ See Thornburgh, 476 U.S. at 758-771 (invalidating informed
consent requirements applicable to all physicians practicing in the
State);  Akron, 462 U.S. at 442-449 (invalidating affirmative
disclosure obligations placed upon all physicians practicing in the
State).  As petitioners acknowledge (N.Y. Br. 32 n.28), "(m)uch, if
not most counseling of pregnant women in Title X clinics is performed
by health professionals other than physicians." See also J.A. 114 (GAO
Report).  As we explain (pp. 24-27, infra), the Title X regulations do
not violate the First Amendment rights of those health care
professionals.

   /13/ Compare Ohio v. Akron Center for Reproductive Health, 110 S.
Ct. 2972, 2981 (1990) (holding that a State may prohibit the
performance of an abortion on an unmarried, unemancipated minor unless
the physician provides timely notice to one of the minor's parents or
a juvenile court issues an order authorizing a minor to consent, which
could take up to 22 days);  Hodgson v. Minnesota, 110 S. Ct. 2926
(1990) (holding that a State may prohibit the performance of an
abortion on a minor until at least 48 hours after both of her parents
have been notified, provided that the minor also may obtain a judicial
"bypass" around the notice requirement);  Planned Parenthood Ass'n v.
Ashcroft, 462 U.S. 476, 491 n.16 (1983) (holding that a state parental
consent statute containing a judicial bypass procedure that could
require 17 calendar days plus a sufficient time for deliberation and
decisionmaking at both the trial and appellate levels did not deny a
woman the "effective opportunity for an abortion" (see Ohio, 110 S.
Ct. at 2981)).  Any delay here would not exceed the delay that a woman
would experience if she mistakenly sought an abortion at a Missouri
public hospital (see Webster, 109 S. Ct. 3040).  The minimal delay
that a woman might encounter is necessary to achieve the government's
legitimate interest in assuring that Title X projects do not become
associated with controversial family planning techniques, such as
abortion, that might jeopardize public support for any family planning
services.  See note 24, infra.  Moreover, the woman, through her own
efforts, could minimize or eliminate the delay.  Compare Akron, 462
U.S. at 450-451 (invalidating, as "arbitrary and inflexible," a
mandatory 24-hour waiting period for abortions).

   /14/ For related reasons, petitioners err in contending that the
new regulations will unduly increase the cost of a woman's exercise of
her rights.  See Rust Br. 34-35;  N.Y. Br. 48 n.54.  An individual who
does not want the limited services offered by a Title X project can
leave before incurring any costs.  In addition, the sliding-scale fee
schedules that most Title X programs use, which entitle indigent women
generally to receive Title X services without charge (see 42 C.F.R.
59.5(a)(6)-(8)), and the existence of other federally funded programs
(including but not limited to Medicaid) further diminish the
possibility that the cost of Title X services would ever increase the
cost of obtaining abortion-related services to constitutionally
significant levels.  See Webster, 109 S. Ct. at 3052 (rejecting
argument that state law forbidding use of public facilities or
employees for performing abortions would unconstitutionally "increase
the cost of obtaining an abortion");  Planned Parenthood Ass'n, 462
U.S. at 490 (upholding state requirement that a pathologist examine
tissue samples after every abortion, at the estimated cost of $19.40
per abortion, because "in light of the substantial benefits that a
pathologist's examination can have, this small cost clearly is
justified").

   /15/ As Judge Cudahy succinctly stated that matter, the
Constitution "does not engraft an 'equal time' requirement onto the
dispensation of state funds for the encouragement of matters
reflecting a legitimate state interest." Planned Parenthood Ass'n v.
Kempiners, 700 F.2d 1115, 1128 (7th Cir. 1983) (opinion of Cudahy,
J.).

   /16/ See also, e.g., Maher, 432 U.S. at 476 ("Constitutional
concerns are greatest when the State attempts to impose its will by
force of law;  the State's power to encourage actions deemed to be in
the public interest is necessarily far broader.").  Cf. Lyng v.
Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988)
("the Free Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the individual can
extract from the government") (quoting Sherbert v. Verner, 374 U.S.
398, 412 (1963) (Douglas, J., concurring)).

   /17/ See 42 C.F.R. 59.8 ("A Title X project may not provide
counseling concerning the use of abortion as a method of family
planning.") (emphasis added);  42 C.F.R. 59.9 ("A Title X project must
be organized so that it is physically and financially separate" from
prohibited activities.) (emphasis added);  42 C.F.R. 59.10 ("A Title X
project may not encourage, promote, or advocate abortion as a method
of family planning.") (emphasis added).

   /18/ Arkansas Writers' Project, which involves the special problem
of "a discriminatory tax on the press" (481 U.S. at 227), obviously
has little relevance here.  See id. at 228 ("selective taxation of the
press * * * poses a particular danger of abuse by the State").  In any
event, it involves a situation where the State provided publishers
with a subsidy (a sales tax exemption) based on the general identity
of their publications' audience (e.g., religious, professional, or
trade magazines) rather than a subsidy to produce a particular
article.  Id. at 223-225.  As we explain in the text, FCC is likewise
distinguishable;  the government restricted a subsidized broadcaster's
expression rather than the content of a particular subsidized
broadcast.  468 U.S. at 400.  Similarly, the Court's statement in TWR
that "(t)he case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to 'aim at the
suppression of dangerous ideas'" (461 U.S. at 548) describes Speiser
v. Randall, 357 U.S. 513 (1958), where California denied a tax
exemption to persons who refused to sign a loyalty oath.  There as
well the government imposed a limitation directly on the grant
recipient's freedom of expression rather than on the content of a
particular subsidized product or service.

   /19/ The Court specifically explained that if the government
permitted stations "to establish 'affiliate' organizations which could
then use the station's facilities to editorialize with nonfederal
funds, such a statutory mechanism would plainly be valid under the
reasoning of (TWR)." 468 U.S. at 400.

   /20/ See L. Tribe, American Constitutional Law 783 (2d ed. 1988)
("When government adds its own voice to the dialogue, and perhaps also
when it subsidizes the voices of its surrogates, it is not subject to
the usual form or level of first amendment scrutiny.").

   /21/ Contrary to petitioners' suggestion, the Secretary's
regulations are content-based rather than viewpoint-based.  As the
court of appeals explained, they prohibit all discussion of abortion
"pro or con." Pet. App. 59a.  Even if the regulations did impose a
viewpoint restriction, the analysis would be much the same.  The
government is entitled to have a viewpoint when it participates in
public discourse.  Moreover, as this Court has already held, it "may
'make a value judgment favoring childbirth over abortion and . . .
implement that judgment through the allocation of public funds.'"
Webster, 109 S. Ct. 3052 (quoting Maher, 432 U.S. at 474).

   /22/ See South Dakota v. Dole, 483 U.S. 203, 207-209 (1987)
(government may withhold federal highway funds from States that fail
to raise the drinking age to 21 because that failure relates to
highway safety and, hence, the proper use of the federal subsidy);
Buckley v. Valeo, 424 U.S. 1, 99 (1976) (government's power to
restrict use of public campaign funds includes the power to limit
private campaign expenditures of those who receive public funds);  see
also Cammarano v. United States, 358 U.S. 498, 513 (1959);  Ivanhoe
Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958).

   /23/ Moreover, because the program integrity regulation is applied
on a flexible, case-by-case basis and takes into account a number of
relevant facts and circumstances (see 42 C.F.R. 59.9), a facial
challenge is particularly inappropriate.  Petitioners' primary
complaint -- that the program integrity requirements will increase the
grantees' costs in providing nonsubsidized services (Rust Br. 28-29;
N.Y. Br. 42-43) -- seems an especially unsuitable ground for a facial
challenge.  Indeed, that argument, on its face, suggests that
petitioners are improperly using Title X monies to subsidize non-Title
X services.

   /24/ See L. Tribe, supra, at 783 ("government's power to set the
terms on which it offers a subsidy must be thought to include at least
some power to restrict not only how that very subsidy is used but also
certain other activities of the subsidized person or entity when those
other activities bear a close enough relationship to use of the
subsidy").  The government has a legitimate interest in assuring that
Title X projects do not become associated with controversial family
planning techniques that might jeopardize public support for any
family planning services.  Cf. Cornelius v. NAACP Legal Defense &
Educ. Fund, 473 U.S. 788, 809 ("avoiding the appearance of political
favoritism is a valid justification for limiting speech in a nonpublic
forum").  Thus, the government may not only choose to include or
exclude particular family planning methods, it may determine the
necessary degree of separation between subsidized and unsubsidized
activities.  The line drawn will leave some parties dissatisfied, but
that is an inevitable consequence of a program that funds some
activities but not others.  The fact remains that the "refusal to fund
protected activity, without more, cannot be equated with the
imposition of a 'penalty' on that activity." McRae, 448 U.S. at 317
n.19;  Maher, 432 U.S. at 474-475 n.8.  For example, the government
has determined that Title X projects must counsel clients concerning
various methods of birth control.  As a result, Catholic organizations
have largely refused to participate in the Title X program.  No one
suggests, however, that Title X therefore violates the First
Amendment.  Catholic organizations are still free to counsel against
the use of any artificial method of birth control, and they are not
"penalized" in any respect for doing so.  They are simply unable to
take part in a government-sponsored program with a different purpose.
Like petitioners, they have no right to insist that the government
fund the activities they wish to pursue simply because the government
has decided to fund other activities.

   /25/ Petitioners maintain that different rules should apply in the
case of health care professionals because government "manipulation" of
the "doctor-patient dialogue is particularly antithetical to the First
Amendment." Rust Br. 20;  see N.Y. Br. 32-34.  Putting petitioners'
rhetoric to one side, the health care professional's dialogue is
restricted in only one limited sense.  He is hired to provide only
pre-pregnancy family planning and infertility services and must refer
the client to other qualified health care professionals for
post-pregnancy services.  As the Secretary explained in promulgating
the regulations, the referral of a client to another health care
professional does not violate accepted medical ethics.  See 53 Fed.
Reg. 2932-2933 (1988).  See also Br. of the Ass'n of American
Physicians and Surgeons as Amicus Curiae in Support of Respondent;
Br. of the American Academy of Medical Ethics as Amicus Curiae in
Support of Respondent.

   /26/ Obviously, a private health care organization's employees
cannot raise a First Amendment challenge to thwart an employer's
attempt to convey (or not convey) a particular message.  See Hudgens
v. NLRB, 424 U.S. 507, 513 (1976) ("the constitutional guarantee of
free speech is a guarantee only against abridgement by government,
federal or state").  The government, like other "participants in the
marketplace of ideas," is also entitled to convey its message.  Thus,
even if this Court were to hold that the grant recipient's employees
have a First Amendment claim against the federal government in this
context, it should be fashioned in light of the government's right to
convey, or not convey, a particular message.  It is, of course, well
settled that the government may condition government employment on the
employee's willingness to abide by a wide variety of rules, including
rules governing expressive activity, that are reasonably related to
the government's interest as an employer.  See, e.g., CSC v. National
Ass'n of Letter Carriers, 413 U.S. 548 (1973) (Hatch Act).  See also,
e.g., O'Connor v. Ortega, 480 U.S. 709, 723 (1987) (government may
search employees' property under various circumstances in which
searches of private citizens would not be allowed);  Connick v. Myers,
461 U.S. 138, 147 (1983) (government employees may be fired for speech
of merely private concern under various circumstances);  Kelley v.
Johnson, 425 U.S. 238, 247 (1976) (government may bar policemen from
wearing long hair);  Broadrick v. Oklahoma, 413 U.S. 601, 616-617
(1973) (state law restriction on partisan political activities);
United Public Workers v. Mitchell, 330 U.S. 75 (1947) (Hatch Act).
Thus, while a government employee has a qualified right to
participate, like other citizens, in public discourse, the First
Amendment does not protect a public employee when he "speaks not as a
citizen upon a matter of public concern, but instead as an employee
upon matters only of personal interest." Connick v. Myers, 461 U.S.
138, 147 (1983).  By the same token, when the government has provided
federal funding to furnish a particular service, the employee hired to
render that service has no First Amendment right to ignore the
government's instructions, and certainly no First Amendment right to
use the federal funds to provide services the government has elected
not to provide.

   /27/ See, e.g., First National Bank v. Belotti, 435 U.S. 765, 777
(1978) ("(t)he inherent worth of the speech in terms of its capacity
for informing the public does not depend upon the identity of its
source").  Particularly troublesome are petitioners' contentions that
government speech is pernicious because clients might be influenced by
what they think the government "disapproves" (N.Y. Br. 39) or that it
might "distort the marketplace of ideas" (id. at 39 n.40).  This
analysis is at war with the basic values enshrined in our system of
free expression.  See Schauer, Is Government Speech a Problem?, 35
Stan. L. Rev. 373, 381-382 (1983) ("The assumption that government
speech is likely to have a highly distorting effect on the trade in
ideas is an assumption that goes not to the question of government
speech but instead to the roots of the very idea of freedom of speech.
 * * * (A)s a long run strategy, we are willing to place some faith in
the collective judgment of the people, and if this is the case, there
seems to be no reason to assume that such collective judgment cannot
appreciate government speech for what it is, in light of its
source.").

   /28/ The First Amendment does not forbid the government from
limiting a federal program to the purpose for which it was intended,
as this Court's "nonpublic forum" cases make clear.  See Cornelius,
473 U.S. at 806 (government entitled to limit federal fund-raising
program to groups that serve program's goals);  see also United States
v. Kokinda, 110 S. Ct. 3115 (1990);  Perry Educ. Ass'n. v. Perry Local
Educators' Ass'n, 460 U.S. 37 (1983);  Madison School Dist. v.
Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976).  Cf.
Kamenshine, The First Amendment's Implied Political Establishment
Clause, 67 Cal. L. Rev. 1104, 1111 (1979) (First Amendment does not
bar government from "supporting contemporary art over traditional art,
ballet over modern dance, and family-oriented entertainment over adult
entertainment").

   /29/ Title X project funds are defined to include "grant funds,
grant-related income or matching funds." See 42 C.F.R. 59.2.  Grant
funds are those provided by the government;  matching funds are the
funds that must be supplied to the project by the grantee to cover the
balance of estimated expenses.  42 C.F.R. 59.11(b).  Grant-related
income describes funds generated by the Title X project through, for
example, patient charges or reimbursement from collateral sources.
The terms of the grant specify how grant-related income may be used.
The Secretary may specify that these funds be returned to the
government, be applied as matching funds, or be used to expand the
Title X project.  See, e.g., 45 C.F.R. 74.42(c)-(e).  The grant
recipient makes the decision whether to apply for federal funds and --
subject to Title X and the Secretary's regulations -- what activities
to include in its application.  Once a grant award is made, the
federal funds support the allowable costs, on a proportional basis, of
all of the authorized activities described by the grantee in its
application.  There is no clear differentiation between federal and
non-federal funds within a Title X project.  See 45 C.F.R. 74.170.

   /30/ As we have explained (see note 18, supra), the Court's FCC
decision dealt with a fundamentally different situation.  The
government offered grants to television stations on the condition that
the grant recipient -- the television station -- would engage in no
editorializing.  Thus, the station would be "barred absolutely from
all editorializing" because it "is not able to segregate its
activities according to its source of funding." 468 U.S. at 400.
Here, by contrast, the grant recipient suffers no limitation on its
freedom of expression;  it simply has an opportunity to operate a
federally subsidized project under the conditions -- both financial
and programmatic -- that the government has attached to the use of
federal funds.  Indeed, the regulations specifically contemplate the
possibility that some Title X recipients will engage in
abortion-related activities by means of complying with the program
integrity requirements.  42 C.F.R. 59.9.

   /31/ The Court recently rejected an Establishment Clause challenge
to a law that, like the Title X program, has a matching fund
requirement and that restricts the awarding of grants for adolescent
pregnancy programs to programs that do not provide abortions or
abortion counseling or referral unless that adolescent and her parents
request such referral.  See Bowen v. Kendrick, 487 U.S. 589, 593-597
(1988) (describing the Adolescent Family Life Act, 42 U.S.C. 300z et
seq.).

   /32/ The federal government generally provides the dominant share
of funding, and thus has a strong interest in dictating program
functions and objectives.  For example, in the case of the Title X
program, the federal government generally provides grants covering at
least 90% of the estimated project costs.  See 42 C.F.R. 59.11(b).
Compare FCC, 468 U.S. at 400 ("a noncommercial educational station
that receives only 1% of its overall income from CPB grants is barred
absolutely from all editorializing").

   /33/ See L. Tribe, supra, at 783 ("it is understandable that the
Court should have concluded, in Buckley v. Valeo, that a candidate may
be forced to choose between running a campaign funded exclusively with
a public grant and running a campaign funded solely with unlimited
private spending").

   /34/ The government can attract matching funds because the programs
it designs provide benefits that the participants are willing to
support.  Here, as elsewhere, an organization is free to choose not to
participate in programs that do not serve its particular interests.
See note 24, supra.  See also South Dakota, 483 U.S. at 211 ("Till now
the law has been guided by a robust common sense which assumes the
freedom of the will as a working hypothesis in the solution of its
problems." (quoting Stewart Machine Co. v. Davis, 301 U.S. 548, 590
(1937)).

   /35/ Petitioners also contend that the Secretary's regulations
should be invalidated to avoid encountering the constitutional issues
that petitioners have raised.  N.Y. Br. 31;  Rust Br. 37-38.  They
rely on this Court's decisions in Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building and Construction Trades Council, 485 U.S. 568
(1988), and NLRB v. Catholic Bishop, 440 U.S. 490 (1979), which hold
that "an Act of Congress ought not be construed to violate the
Constitution if any other possible construction remains available."
440 U.S. at 500.  But as we have shown, Title X, as the Secretary has
interpreted and applied it, does not give rise to "serious
constitutional questions." Id. at 501.  Contrary to petitioners'
suggestion (Rust Br. 38 n.69), the mere fact that several lower courts
have held a regulation unconstitutional does not mean that this Court
must invalidate it on Catholic Bishop grounds.  See also United States
v. Locke, 471 U.S. 84, 96 (1985) ("(w)e cannot press statutory
construction 'to the point of disingenuous evasion' even to avoid a
constitutional question" (quoting Moore Ice Cream Co. v. Rose, 289
U.S. 373, 379 (1933) (Cardozo, J.));  Califano v. Yamasaki, 442 U.S.
682, 693 (1979) (court should not adopt construction of statute
necessary to avoid constitutional question unless construction is
"fairly possible").  See generally Board of Education v. Mergens, 110
S. Ct. 2356 (1990) (adopting broad construction of Equal Access Act
even though broad construction raised Establishment Clause questions).

   /36/ As we have explained (note 8, supra), the First Circuit
invalidated the regulations as unconstitutional;  however, it held
that Title X authorizes the Secretary to promulgate Section 59.8
(prohibiting abortion counseling) and Section 59.10 (prohibiting
abortion advocacy).  Massachusetts, 899 F.2d at 64.  Thus, the courts
of appeal are in disagreement only with respect to Section 59.9, which
deals with program integrity.

   /37/ Petitioners' position champions what amounts to an extreme
departure from past, as well as present, HHS policy.  HHS has
consistently rejected the assertion that Title X projects are
prohibited only from actually performing abortions.  Since 1972, HHS
has "interpreted section 1008 not only as prohibiting the provision of
abortion but also as prohibiting Title X projects from in any way
promoting or encouraging abortion as a method of family planning." 53
Fed. Reg. 2923 (1988).  See Memorandum from Carol Conrad, supra, note
3.  See discussion, pp. 41-42, infra.  Thus, it is petitioners, not
HHS, that seek "a dramatic reversal of agency policy." N.Y. Br. 8.

   /38/ Petitioners attempt to escape that conclusion by arguing that
Title X subsidizes "family planning methods and services." N.Y. Br. 11
(quoting, with emphasis added by petitioners, 42 U.S.C. 300(a)).  They
contend that while abortion is a family planning method, abortion
counseling is a service and is therefore immune from Section 1008.
See Rust Br. 41-42;  N.Y. Br. 12-13.  This argument is unavailing.
Even if the Title X project is providing abortion counseling as a
"service," that service treats abortion as a "method of family
planning." The Title X project thus becomes a "program() where
abortion is a method of family planning." 42 U.S.C. 300a-6.
Petitioners also contend that abortion, as they describe it, is not a
"'family planning' option equivalent to diaphragms, IUDs, oral
contraceptives, and other pregnancy prevention options";  instead it
is "a backup to contraceptive or human failure." Rust Br. 41 n.74.
The fact remains that the use of abortion to terminate an unwanted
pregnancy is the use of abortion as a method of family planning,
"backup" or otherwise.

   /39/ The passage quoted in the text appears in the "Statement of
the Managers on the Part of the House." This Court observed in
National Ass'n of Greeting Card Publishers v. USPS, 462 U.S. 810
(1983), that a Manager's Statement involved there, "while certainly
significant," did not have the same status as the Conference Report
itself because the Statement was not available to both Houses.  Id. at
832 n.28.  Here, the Manager's Statement was appended to the
Conference Report and was submitted to both Houses prior to their
passage of the final bill.  See 116 Cong. Rec. 39,871, 40,884 (1970).

   /40/ If Section 1008 specifically required funding of abortion, it
would be quite reasonable to view "other related" activities to
include abortion counseling, referral, and advocacy.  But here, where
Congress has "prohibit(ed) the use of such funds for abortion" (H.R.
Conf. Rep. No. 1667, supra, at 8), it would be incongruous to conclude
that such activities are permissible.  Indeed, if a Title X project's
function to provide preventive family planning services and "other"
related activities includes abortion counseling, other parties could
insist that Title X projects provide the full gamut of post-pregnancy
services ranging from pregnancy counseling to prenatal and obstetric
care.  That plainly was not Congress's intent.

   /41/ This Court has explained that "statements by individual
legislators should not be given controlling effect, but when they are
consistent with the statutory language and other legislative history,
they provide evidence of Congress's intent." Brock v. Pierce County,
476 U.S. 253, 263 (1986).  Other members expressed a similar intent
that Title X should not encourage abortion.  See 116 Cong. Rec. 37,371
(1970) (statement of Rep. Pickle) ("I strongly support * * * the
provision in the House version of this legislation that prevents this
bill from being construed as support for abortion.").  See also id. at
37,368 (statement of Rep. Carter);  id. at 37,370 (statement of Rep.
Bush);  id. at 37,374 (statement of Rep. Broyhill);  id. at 37,379
(statement of Rep. Dingell);  id. at 37,382 (statement of Rep.
Rogers).

   Petitioners correctly observe (N.Y. Br. 15-16 n.12) that Rep.
Dingell subsequently criticized the Secretary for relying on the
statements the congressman made in 1970.  See Letter from John D.
Dingell, Chairman, Committee on Energy and Commerce of the U.S. House
of Representatives to Otis R. Bowen, Secretary of HHS (Oct. 14, 1987)
(J.A. 137-139).  Rep. Dingell principally asserted that the Secretary
should interpret Title X in light of its post-enactment legislative
history.  See J.A. 138.  Significantly, Rep. Dingell did not take
issue with the Secretary's understanding of Title X as enacted in
1970, or with the precise content of his statement.  See ibid.  ("My
statement was made in opposition to the use of Federal funds to
support or encourage abortion as a form of birth control.").  Instead,
he took issue with the inferences that should be drawn from his
statement.  See ibid.  The relevant matter, however, is the Congress's
collective understanding, and whatever interpretive inferences one
might draw from a floor debate, it is clear that a congressman's post
hoc clarification or revision of his statements -- or perhaps even
change of mind -- has no probative weight in determining the
collective body's intent at the time of passage.  See Bread Political
Action Comm. v. FEC, 455 U.S. 577, 582 n.3 (1982).  See also, e.g.,
International Union of Electrical Workers v. Westinghouse Electric
Corp., 631 F.2d 1094, 1104 (3d Cir. 1980).

   /42/ For example, petitioners rely heavily (N.Y. Br. 18-19) on a
passage from a 1985 committee report.  See H.R. Rep. No. 403, 99th
Cong., 1st Sess. 6 (1985).  That 13-page report prepared by the
Committee on Appropriations deals with 18 appropriations matters
ranging from "Outrage Over 'Achille Lauro' Events" (id. at 5) to
"Downtown Component of the Metrorail Dade County Florida" (id. at 7),
and the entire discussion of pregnancy counseling is contained in the
one brief paragraph quoted in petitioners' brief.  Here, as in TVA,
the congressional committees that have jurisdiction over family
planning matters "would be somewhat surprised to learn that their
careful work on the substantive legislation had been undone by the
simple -- and brief -- insertion of some inconsistent language in
Appropriations Committees' Reports." 437 U.S. at 191.

   Indeed, when a 1987 report of the Committee on Labor and Human
Resources suggested that Title X clients are entitled to
"non-directive counseling" (S. Rep. No. 286, 100th Cong., 2d Sess.
(sic) 14 (1987), it precipitated strong dissenting opinions.  See id.
at 23-24 (statement of Sen. Humphrey) ("Section 1008 was intended to
establish a wall of separation between pregnancy prevention and
pregnancy termination services.  * * * Despite the statutory
restriction * * * , Title X guidelines actually require abortion
referral and 'non-directive' abortion counseling as part of 'options
counseling'.  This requirement contrasts sharply with the statute.");
see also id. at 22 (statement of Sen. Hatch).

   /43/ Petitioners' amici discuss at great length the House of
Representatives' 1978 rejection of amendments that would have
expressly prohibited Title X projects from providing abortion-related
counseling.  Rep. Patricia Schroeder, et al. Amici Br. 19-21.  As the
court of appeals explained, Congress's rejection of those amendments
certainly does not prove that Congress thought Title X allowed such
counseling.  Pet. App. 50a.  Indeed, the legislative history shows
that Congress did not have a clear understanding of the then-existing
policy and practice concerning abortion counseling.  The House
rejected the amendment only after Rep. Rogers (the floor manager for
Title X reauthorization) stated that Title X already prohibited
abortion-related counseling and that, even if it did not, an amendment
was unnecessary because Title X programs were not engaging in that
practice.  See 124 Cong. Rec. 37,046 (1978) (Rep. Rogers).  See also
121 Cong. Rec. 17,219 (1975) (Rep. Rogers);  120 Cong. Rec. 21,687
(1974) (Rep. Roncallo).  We discuss the defeated legislative
initiatives in greater detail in our court of appeals brief.  See
Gov't C.A. Br. 37-44.

   /44/ As the First Circuit explained in rejecting an identical
challenge to the Title X regulations, "such ratification would merely
reflect acquiescence to a prior policy -- it would not indicate that
the Secretary's new policy exceeds his statutory authority."
Massachusetts v. Secretary of HHS, 899 F.2d at 61.  See also Motor
Vehilce Mfrs. Ass'n. v. State Farm Mutual Auto. Ins. Co. 463 U.S. 29,
45 (1983) ("even an unequivocal ratification -- short of statutory
incorporation -- of (a regulation) would not connote approval or
disapproval of an agency's later decision to rescind the regulation").

   /45/ There is room to argue that the meaning of Section 1008 is
less than completely clear.  Indeed, Section 1008's language is not as
clear as provisions of various appropriations acts that prohibit the
use of federal funds "to perform abortions" (e.g., District of
Columbia Appropriation Act, 1988, Pub. L. No. 100-202, Section 117,
101 Stat. 1329-99), or the Adolescent Family Life Act, which prohibits
the funding of programs "which provide abortions or abortion
counseling or referral" (42 U.S.C. 300z-10).  There is no room to
argue, however, that Section 1008 unambiguously states that
petitioners contend:  that Section 1008 prohibits the performance of
abortions but nothing else.

   /46/ See Memorandum from Joel M. Mangel, Deputy Ass't General
Counsel, to Louis M. Hellman, M.D., Deputy Ass't Secretary for
Population Affairs (Apr. 20, 1971) (J.A. 35-40) (describing HHS's
"non-encouragement policy");  Memorandum from Joel M. Mangel, Deputy
Ass't General Counsel, to Louis M. Hellman, M.D., Deputy Ass't
Secretary for Population Affairs (Jan. 18, 1973) (J.A. 43-48) (same);
Memorandum from Louis M. Hellman, M.D., Deputy Ass't Secretary for
Population Affairs, to Hilary H. Connor, M.D., Regional Health
Administrator (Nov. 19, 1976) (C.A. App. 134A-135) ("if you are funded
under Title X, you cannot promote or encourage abortion");  Memorandum
from Carol Conrad (Apr. 14, 1978), note 3, supra ("This office has
traditionally taken the view that Section 1008 not only prohibits the
provision by Title X grantees of abortion as a method of family
planning as part of the Title X-supported program, but also prohibits
activities which promote or encourage the use of abortion as a method
of family planning by the Title X-supported program.").  J.A. 56.
Petitioners' contrary characterizations are based on incomplete
renditions of the relevant memoranda.  See Rust Br. 43-44;  N.Y. Br.
21 n.20.

   /47/ Petitioners make a number of exaggerated claims about the
application of the regulations, suggesting, for example, that Title X
project counselors cannot even say "the word 'abortion' to their
patients" (N.Y. Br. 5) and that the telephone yellow pages "must be
purged from the waiting rooms" of Title X facilities.  Rust Br. 26.
That hyperbole is not accurate.  See 42 C.F.R. 59.8(a) (4),
59.8(b)(5);  53 Fed. Reg. 2941.  See also Pet. App. 45a n.1.  In any
event, a court should not sustain a facial challenge to a regulation
based on suggested fanciful applications, particularly those that the
agency itself has rejected.  See Bowen v. Yuckert, 482 U.S. 137, 154
n.12 (1987).

   /48/ There is a manifest need for effective separation between a
Title X project and prohibited activities;  without it, an abortion
clinic could be fully integrated into a Title X program, distinguished
only by the bookkeeper's imagination in "allocating" the costs of
abortions to non-Title X funds.  That integration would result in a
Title X project subsidizing or promoting abortion services.  53 Fed.
Reg. 2940-2941 (1988);  52 Fed. Reg. 33,212-33,213 (1987).  The
Secretary noted that the program integrity regulations were
"independently justified by the need to prevent existing or potential
clients of Title X projects -- as well as the general public -- from
concluding that the government endorses abortion." Id. at 33,212.  The
government has a legitimate interest in preventing such
misapprehensions.  See note 24, supra.  Cf. McConnell, Political and
Religious Disestablishment, 1986 B.Y.U. L. Rev. 405, 457 ("(o)nly a
physical separation can prevent aid to the non-advocacy aspects of an
organization's activities from accuring to the benefit of its advocacy
by defraying a portion of the joint or common costs, and only a
physical separation can preclude the intertwining of the
government-funded activity and the organization's political or
religious advocacy").

   /49/ For example, the Office of General Counsel issued an opinion
in 1973 that concludes, in pertinent part:

      (A) mere technical allocation of funds, attributing Federal
      dollars to non-abortion activities and other dollars to abortion
      activities, in what is otherwise a discrete project for
      providing abortion services, would not, in our opinion, be a
      legally supportable avoidance of the section 1008 prohibition.
      In our opinion, the activities (abortion and non-abortion) must
      be so separated as to constitute separate programs (projects).
      As we have already indicated, our conclusion does not require
      separate grantees or even a separate health facility.  However,
      neither do we think that separate booking entries alone will
      satisfy the spirit of the law.

Memorandum from Joel Mangel, Deputy Ass't General Counsel, to Albert
B. Lauderbaugh, Chief, Office of Field Operations, National Center for
Family Planning Services (Apr. 10, 1973).  See also Memorandum from
Carol Conrad (Apr. 14, 1978) (J.A. 59) note 3, supra.

   /50/ Section 59.9 states that the Secretary "will determine whether
such objective integrity and independence exist based on a review of
facts and circumstances.  Factors relevant to this determination shall
include (but are not limited to):  (a) the existence of separate
accounting records;  (b) the degree of separation from facilities
(e.g., treatment, consultation, examination, and waiting rooms) in
which prohibited activities occur and the extent of such prohibited
activities;  (c) the existence of separate personnel;  and (d) the
extent to which signs and other forms of identification of the Title X
project are present and signs and material promoting abortion are
absent." 42 C.F.R. 59.9.

   /51/ That argument is both inappropriate in a facial challenge and
not borne out by experience.  The regulations have been enjoined in
most areas of the Nation pending the outcome of the various legal
challenges.  However, they have been implemented in portions of five
States (Kentucky, Iowa, Texas, Nevada, and South Dakota) and all of
the territories.  To date, no issues of compliance with 42 C.F.R. 59.9
have been raised.  Clearly, petitioners have no basis whatsoever for
contending that the Secretary will apply the criteria of that section
in an arbitrary manner.