Individual Rights And Government Power InCollision: A Look At Rust V. SullivanThrough The Lens Of Power Analysis

In Rust v. Sullivan(1) the Supreme Court upheld regulations forbidding abortion counseling in clinics receiving family planning grants.(2) The Rust decision provoked controversy in part because it limited a doctor's ability freely and fully to advise a patient and it limited a patient's ability to obtain medical information.(3) The controversy over the Rust decision rests on the tension between congressional spending power and individual constitutional liberties.(4) In this arena government has dual roles. On the one hand government must exercise power in order to govern as the representative of the collective political will. On the other hand government must ensure that its exercise of power does not erode the individual citizen's constitutional rights. Tension between government power and constitutional liberties is constant and inevitable.The Rust decision selects a particular balance between government power and individual rights. However, neither the decision nor the preceding legal discourse explains why the balance should be struck as it was, or as the Rust opponents would have it. The analytical models used by either side in the controversy, the unconstitutional conditions doctrine and the rational basis test of spending power, fall in two ways.(5) First, they apply labels rather than analysis and therefore produce inconsistent and illogical results.(6) Second, and more fundamentally, the unconstitutional conditions doctrine and the rational basis test miss the issue by focusing on discrete, isolated elements of government power and individual rights rather than on the dynamics of the relationship between the two.(7) Government power and citizen autonomy are interdependent and reciprocal; as one changes, so must the other.This Note suggests a different analytical framework that focuses on the dynamics of the relationship between government power and individual rights and the central role of expression in that relationship. The suggested framework is power analysis, developed in the disciplines of political science and sociology to study the nature and strength of power relationships in social settings ranging in scale from the intimate to the national.(8) Power analysis reaches behind the label of doctrine to assess real power and autonomy. Part I of this Note chronicles the Rust legal controversy. Part II examines the analytical failures of the unconstitutional conditions doctrine and the rational basis test of spending power, and offers power analysis as an alternative. The power analysis framework permits genuine analysis and recognizes the critical role of freedom of expression and information in the distribution of power. Part III uses power analysis to describe the effect of the Rust decision on the balance between government power and individual rights inside a clinic receiving federal family planning grants. Part IV applies power analysis to other examples of government intervention, contrasting those power landscapes and legal outcomes to Rust. Part V concludes that Rust goes further than the comparison cases to enhance government power at the cost of individual rights, and offers an observation and a suggestion. The observation is that Rust is not an aberration, but a trend. The suggestion is that power analysis is an appropriate way to monitor the balance between government power and individual liberties, particularly when legal discourse becomes polarized and conclusory.I. THE RUST DECISIONThe Rust dispute involved a complex interplay of congressional spending power, the implementation powers of the executive, and the interpretive powers of the judiciary. The precise government power at issue was that of the executive. An executive agency issued regulations construing a federal statute in a way that raised constitutional questions.(9) In 1988 the Secretary of Health and Human Services (HHS) issued new regulations governing Title X family planning grants.(10) Congress had enacted Title X as part of the Public Health Services Act of 1970 (Act)(11) in order to give grants to family planning projects offering a broad range of services. …