# Rust v. Sullivan/Dissent O'Connor

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* Opinion of the Court
* Dissenting Opinions Blackmun Stevens O'Connor
JUSTICE O'CONNOR, dissenting.
    [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988). JUSTICE BLACKMUN has explained well why this longstanding canon of statutory construction applies in this case, and I join Part I of his dissent. Part II demonstrates why the challenged regulations, which constitute the Secretary's interpretation of § 1008 of the Public Health Service Act, 84 Stat. 1508, 42 U.S.C. § 300a-6, "raise serious constitutional problems": the regulations place content-based restrictions on the speech of Title X fund recipients, restrictions directed precisely at speech concerning one of "the most divisive and contentious issues that our Nation has faced in recent years." Ante at 215.
One may well conclude, as JUSTICE BLACKMUN does in Part II, that the regulations are unconstitutional for this reason. I do not join Part II of the dissent, however, for the same reason that I do not join Part III, in which JUSTICE [p224] BLACKMUN concludes that the regulations are unconstitutional under the Fifth Amendment. The canon of construction that JUSTICE BLACKMUN correctly applies here is grounded in large part upon our time-honored practice of not reaching constitutional questions unnecessarily. See DeBartolo, supra, at 575.
    It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157 (1984). See also Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Burton v. United States, 196 U.S. 283, 295 (1905); Liverpool, New York and Philadelphia S.S.C.o. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885) (In the exercise of its jurisdiction to pronounce unconstitutional laws of the United States, this Court "has rigidly adhered" to the rule "never to anticipate a question of constitutional law in advance of the necessity of deciding it").
This Court acts at the limits of its power when it invalidates a law on constitutional grounds. In recognition of our place in the constitutional scheme, we must act with "great gravity and delicacy" when telling a coordinate branch that its actions are absolutely prohibited absent constitutional amendment. Adkins v. Children's Hospital of District of Columbia, 261 U.S. 525, 544 (1923). See also Blodgett v. Holden, 275 U.S. 142, 147-148 (1927) (Holmes, J., concurring). In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of § 1008 compels the Secretary's interpretation, [p225] and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.