William H. Rehnquist: We will hear arguments next in No. 85-5731, Willie Davis Brown, AKA Will Brown, Petitioner, versus the United States. You may begin whenever you are ready, Mr. Haddad.
Fred Haddad: Thank you, Mr. Chief Justice, and may it please the Court, if I may, the Court has already heard argument somewhat on this issue. I would like to address the facts momentarily in the case in that I think it may have a bearing on what I would argue in response to what Justice Blackmun asked at the initial opening argument in Griffith. In this case the defendant, a black man, was charged with a co-defendant, another black man, with violations of the conspiracy narcotics laws, and was put to trial in the United States District Court for the Western District of Oklahoma. Five black people were called for the jury, three of which were excused for cause by the court, two of whom were excused by the prosecutor peremptorily, and there was an objection made, and the defendants or petitioner sought to... a request of the trial judge for the... and a couple of additional challenges in an effort to seek some black members of the venire that were still available as well as an objection to the prosecutor's employment of his challenges to exclude black people who responded on voir dire in a manner sufficient to indicate that they could be fair in the case. As it turned out during the second day of jury deliberation counsel were made aware that during a break between the first venire and the second venire the United States Attorney or Assistant United States Attorney, Mr. Richardson, had made a telephone call to the jury clerk asking her the composition of those who would be calling or coming and asking her not to bring any jurors, as he recalled it, or don't get any blacks on the jury, as she recalled it. A hearing was then had during the... excuse me. We had a hearing while the jury was deliberating, and at that hearing Mr. Richardson attested to the fact that he took into consideration that the defendants were black and that their lawyer was black, and that their lawyer was a prominent black member of the Oklahoma State Senate, and he intended to strike from the jury panel any person who indicated whether or not they... whether they knew Mr. Porter, who was my co-counsel at the time, and that was... I asked the question, did not that person that you excluded admit that she would be fair, not influenced by Senator Porter and so forth, and the answer was yes. That brings us, I think, to the question that Justice Blackmun asked regarding the clear break. I would suggest to the Court that in my review of discrimination cases the only persons who have ever been afforded a presumption of validity on their conduct has been attorneys. I think the Court offered to prosecutors both of the United States Government and of the state court that they, being lawyers, and being sworn to uphold the Constitution, would not employ their peremptory challenges in a manner that was different that that which was set out in Swain versus Alabama. That is that any peremptory challenge would be directed to matters related to trial as opposed to race. And I think that is a distinction in this case that takes it out of the ambit of the rest of the retroactivity cases. I would note in many of these retroactivity cases the good faith of the persons involved comes to mind, particularly in United States against Peltier or Peltier. The fact that the law may have not been... may have been overruled and Alameda Sanchez may not have been the proper law, people relied upon this law in good faith. I think what Batson recognizes is that in Swain versus Alabama the Court recognized, the lawyers, people who are sworn, and I don't mean to be melodramatic, to uphold the Constitution would in fact act in conformance with their oath. After 20 years or 21 years of the evolution of trials, I think the Court in Batson realized that perhaps this is not the case in certain circumstances. The Court in Batson just said, if the appearance is there, we are not saying grant a new trial, we are not saying to anyone that you have to indulge in all these acts. What we are saying is, if the appearance of impropriety is there by articulable reasons offered by the defense counsel which the trial judge as the listener to voir dire can take unto himself, then he can request that the prosecutor offer a neutral basis or a monochromatic basis for the exercise of his challenges. I think that was a decision that surely ought to have effect to cases pending on direct appeal. I don't think, it was... granted, it was a break in the rules, it was a clear break more than likely, but I think it was bottomed on a conception that that which should be right would have been done, and I think the facts in the case before the Court in Brown illustrate that at least in times it has not been done. The arguments in support of retroactivity as in the Harlan approach have been offered to the Court already. I don't want to repeat them and just unduly talk too much, but they have been set forth, and I think and I would suggest to the Court that the Harlan approach is the approach that ought to be taken as Chief Justice Rehnquist did in Shea, and just draw a bright line and say, cases pending on direct appeal receive the benefit of the case... of the law at the time the case is decided.
William H. Rehnquist: The problem with getting the Court to ever adopt the Harlan approach is that we seldom have a case here in which both sides of the thing are involved. That is, it would take an opinion of the Court, say, a holding in the technical sense that on habeas corpus there is no retroactivity perhaps with minor exceptions; on direct review there is always retroactivity. But we tend to get our cases, it is either a direct review or a habeas corpus, and so it is hard to get the court to coalesce around a proposition that would apply to both situations.
Fred Haddad: I understand that, Your Honor. I would think that, as Justice Harlan said, taking the scope of the great writ, as he called it, it is to determine if a person is lawfully in custody by those factors or those rules in effect at the time conviction became final, with certain limited exceptions. One would think of matters that go to jurisdiction, double jeopardy or as the Court has applied Gideon versus Wainwright and those cases.
Speaker: Why would double jeopardy be an exception?
Fred Haddad: For a writ?
Speaker: Yes.
Fred Haddad: Waller versus... Robinson versus Neil held... it wasn't Waller, and I am just trying to give the Court an example. If a person... I don't think we have that any more after Waller and Ash versus Swenson, but trying to give the Court an idea of what... a response to your question.
William H. Rehnquist: But Robinson against Neil was an application of the Stovail against Denno test, not an application of Justice Harlan's test.
Fred Haddad: Yes, sir. I agree, but I am just trying to give it as an example of what I am talking about. When you are talking about--
William H. Rehnquist: Well, I think it is a very poor example of what you are talking about, is what I am trying to say. But you are entitled, obviously, to convince my eight colleagues that you are right.
Fred Haddad: --It is just that that is the example that I think I could give, where it went to the essence of the truthfinding factor on collateral review or something where the Court has previously held that it was of such a critical nature that it ought to be applied retroactively on collateral review.
John Paul Stevens: Mr. Haddad, may I ask you, do you think a Batson claim and a trial that arises in the future, say someone is tried tomorrow and a Batson claim is made and it is denied on direct review, that that claim could be raised on collateral review?
Fred Haddad: I would think so. Yes, sir, I would think it would be a failure to follow the law in existence at the time. It would be... and I hope, Mr. Chief Justice, this isn't a bad example again, but I would think it would be in the nature of a failure to afford a full and fair hearing under Stone versus Powell and the Fourth Amendment Issue.
John Paul Stevens: No, I am assuming that they had a full and fair hearing in the state system that would satisfy Stone against Powell and that it was appealed but just was denied on the merits, but there was, you know, an arguable basis for the claim. Under those facts do you think it would be raisable on collateral review?
Fred Haddad: Yes, sir. Yes, sir, I do, so that I just say that in conformance and conjunction with... yes, sir?
William J. Brennan, Jr.: 0 xxx. I think you or at least others have cited Stovall. Do you recall when the Stovall opinion, which was, of course, a collateral case, where retroactivity was involved, we held that the rules should not be made... those were the Wade and Gilbert rules--
Fred Haddad: Yes, sir.
William J. Brennan, Jr.: --should not be made retro.
Fred Haddad: Yes, sir.
William J. Brennan, Jr.: But then we went on to say, "We also conclude for these purposes no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. " "We regard the factors of alliance and burden and the administration of justice as entitled to such overriding significance as to make that distinction unsupportable. " and then went on to say that it is just too bad for the... that only those whose cases were actually taken had the constitutional question decided in their favor, this on the ground that "we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making. " Do you think that is still law?
Fred Haddad: Do I still think it is still law?
William J. Brennan, Jr.: Do you think what I have read you is still law?
Fred Haddad: I think the Court has gotten away from that. I think Justice Harlan, and I hope the Macke decision came afterwards, said that those cases came along because of this Court's many--
William J. Brennan, Jr.: 0 xxx.
Fred Haddad: --I am sorry? This Court's decisions--
William J. Brennan, Jr.: Justice Harlan's view was usually expressed either in dissent or in concurrence.
Fred Haddad: --I am sorry. I meant dissenting opinion in Macke or concurring opinion in Macke dissenting and the cases with it noted, I believe, that this Court had taken this almost as a policy approach because of its numerous decisions in the criminal law field, and that the Court was taking certain cases and holding them one way on collateral and one way on direct and then not of benefit to anybody, as in Morrissey versus Brewer, or certain chance beneficiaries, and that is what brought about his decision, I think, or his opinion.
William J. Brennan, Jr.: Well, this opinion went on to recognize that inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process but raise the same issue.
Fred Haddad: Yes, sir.
William J. Brennan, Jr.: Nevertheless what we said there was that there is no retroactivity.
Fred Haddad: I think Justice Brennan wrote that, too.
William J. Brennan, Jr.: Him--
Fred Haddad: I think Your Honor wrote that, too, as I recall.
William J. Brennan, Jr.: --That's right. Why else do you think he is reading it?
Fred Haddad: I understand that Justice--
William J. Brennan, Jr.: I just wondered. Is that no longer law?
Fred Haddad: --I think there has been a break away from that with Johnson and Shea. Let me say that. I think there has been a trend away from it with Johnson and Shea.
William H. Rehnquist: It would bode ill for your case if the language that Justice Brennan just read to you were controlling in this case in view of our decision last spring in Allen against Hardy.
Fred Haddad: It certainly would, sir, yes. I don't deny that. If I may, if I have any other time left, I would like to reserve it. Thank you very much.
William H. Rehnquist: Thank you, Mr. Haddad. We will hear next from you, Mr. Bryson.
William C. Bryson: Thank you. Mr. Chief Justice, and may it please the Court, I would like to summarize briefly what our position is in this case. It has been laid out well, I think, by the attorney general from Kentucky, but in essence what it is is simply this, that Batson was a clear break with the past. That the Johnson case, while holding that ordinarily case new decisions will be given retroactive effect on direct appeal, made an exception for cases that it referred to as clear break cases, and that in Allen against Hardy this Court found that the Stovall against Denno factors cut against full retroactivity for Batson. We put those three propositions together and we submit that that compels a finding that Batson should not be held retroactive on direct appeal in this case. Now, Justice Blackmun asked a question, I believe, in the first argument about whether this clear break exception to the Johnson rule should be preserved, whether it has any justification, and that ties in, I think, with the question of what the status of Stovall is with respect to direct appeal cases at this point. As we read the Court's opinion in Johnson, what the Court was saying was, yes, we are adopting to an extent Justice Harlan's rule that the new decisions would be applied retroactively on direct appeal, but we are not willing to go so far as to overturn settled precedent in this area, particularly with respect to that area of settled precedent in which the Stovall against Denno factors are the most compelling, and that is the definition of the clear break area. Now, in the clear break area, as this Court recognized in Johnson, that is the very area where the Stovall against Denno factors operate very strongly, particularly the factors of reliance by prosecutors, trial courts, and courts of appeals, and the administration of justice, because in that area, that is the area in which, because decisions are clear breaks from the past, clear breaks from prior precedent, and particularly when they constitute square overrulings of prior precedent, that is the area in which it is the least likely that lower courts and law enforcement officers and prosecutors will have anticipated a change in the law, and as a result that is the area in which you will have the most number of cases which will be affected by the change and in which you will have had reliance, justifiable reliance by people who read the law and attempt to follow it. So, I think what the Court has done in Johnson is essentially to reach a compromise between Stovall against Denno and Justice Harlan's views as expressed in the number of dissents. The Court has preserved that area of the Stovall analysis that is the area in which it is the most telling, and has otherwise adopted Justice Harlan's views. Now, we have argued in the past for a straight application of Stovall against Denno to not only collateral attack but also direct review, but if the Court is not prepared to go back to the Stovall against Denno across the board rationale, then we submit that Johnson--
William J. Brennan, Jr.: Well, I gather, Mr. Bryson, you don't think that what I read earlier from Stovall controls this case without more?
William C. Bryson: --Well, I think in light of Johnson, Your Honor, we would say that it does control this case to the extent that the Court concludes that this is a clear break case. Now, of course, if the Court concludes that it is not a clear break case, then Stovall under the analysis of Johnson doesn't have any applicability, and the Court would then go to the Harlan rule which would be simply flat-out applicable... retroactivity as applied to direct review. So the answer is yes, but it is yes because we believe this is a clear break case, and that is a condition precedent for Stovall applying as we read Johnson. Now, that brings me to the question, is this a clear break case, and there is a lot of argument in the briefs, and there has been argument this morning about whether it is. We would rely, of course, very heavily on both Johnson, in which a clear break was defined as either a straight overruling or the Court disapproving a well established prior practice, we rely on that; we would also rely on Allen against Hardy, in which the Court specifically said this was an explicit, that was an explicit and substantial break with the past. Now, I don't, as I think General Richwalsky said before, I don't see any difference between a clear break and an explicit and substantial break. I cannot imagine that the Court had in mind to draw a line between those two concepts, but in any event between Johnson and Allen against Hardy it is clear to us that this was a sufficiently new rule that it is one that would fall within the Court's characterization of clear break cases. Now, the petitioner and amicus in this case have provided two proposed answers for the argument that this is a clear break case One, they say, well, yes, it was a break but it was a break with respect to burden of proof question only, not with respect to the underlying standard of conduct, and second, they say, well, it is really no break, or to the extent that it was a break it was a break that was so completely foreshadowed by prior events that no one had the right to rely on it. Now, as to the first, first, again, going back to Allen against Hardy, the Court in Allen pointed out that the question of whether this was a break with regard to burden of proof or whether this was a break with regard to standards of conduct is of no moment in determining whether it is a clear break case for the simple reason that courts, prosecutors, and appellate courts were relying on the entire rule, not just the standards of conduct that were prescribed in Swain, but also the principles of reviewability in Swain. That is why in case after case prosecutors declined and trial courts did not require them to make a record as to the reasons for their peremptory strike simply because Swain did not require such a record be kept. That is the reason that this reliance by the prosecutors in trial courts and appellate courts would be so expensive to overturn, because you would be sending cases back for determination on hearings in case after case for determination of whether the prosecutor had had a particular intention with respect to strikes as to which almost certainly he or she would have no recollection and almost certainly--
John Paul Stevens: Mr. Bryson, could I interrupt you for a minute, because there are two aspects about this case I would like you to comment on. First, as I remember it, this is a case in which the clerk testified that the prosecutor had requested that as few blacks as possible be put on the venire, and apparently the Court of Appeals accepted that testimony and thought the conduct was reprehensible but it didn't affect the outcome, and so it didn't matter. And the question I am wondering about is, if you have facts which seem clearer than they are on some records there may have been a deliberate intent to minimize the number of blacks on the jury just for racial reasons alone, is it as clear in this case as it may be in some of the others that the prosecutor was justified in assuming that his or her conduct was entirely proper, and should we not since it is a federal case rather than a state case, do we not have some obligation to consider our supervisory power with respect to the conduct of federal prosecutors in federal trials? Is it precisely the same issue as in the other case, in other words?
William C. Bryson: I think the Court could conceivably view this case differently from the typical case, and it is really not just because of the telephone call, as a matter of fact. There are two features to this case that I think frankly distinguish it from the average case in which... such as Griffith, in which the prosecutor simply says, I don't have to give an explanation, Swain does not require me to give an explanation. It is not just the telephone call. It is also that in fact the prosecutor did give an explanation on the record in this case. Now, there was no finding by the trial court as to whether that explanation was candid or correct, but he said that, yes, I struck two blacks, and the reason I struck them is because the defense lawyer for the co-defendant is a very imposing and impressive lawyer who has in my view a very substantial effect on black jurors. Now, with respect to the telephone call first, there is no question that the call was completely improper. It was a deplorable incident, and we are obviously not defending it on the merits. However, to the extent that anything in mitigation can be said, and I think something can be said, the telephone call, as the prosecutor explained, was intended to find out information about how many blacks were coming, and he did not intend to direct the jury clerk to strike sub silentio the blacks who were on that incoming panel. Now, she remembered the conversation as giving her the impression that he was asking her to strike them. His impression of what he said was, we are looking for a jury which does not have many blacks on it, that is to say, I am hoping not to have many blacks on this jury, not, please, Ms. Jury Clerk, take those black jurors off this jury. Now, in other words, my point is that however unwise his conduct in making the call, It did not reflect an intent to skew the jury in an improper way. At most it reflects something that he admitted later, which was that in this particular case he was looking for a jury that had as few black members as possible. That brings me to the second point. What is the legitimacy of his having struck jurors on the ground that he claimed that he did? Well, that goes right back to Swain, and what Swain said. Swain in fact had a passage which it seems to me is very pertinent here, and that is that a place in which Swain quoted the prosecutor as having said that he struck differently depending on the race of the defendant and the race of the victim, and the Court said, well, that is all right because that shows that he was not striking blacks in every case. And in this case this prosecutor indicated on the record he did not strike blacks in every case. In fact, he had no objection to having blacks on his jury. But in this particular case, with this particular lawyer who in his view had such an impressive... had such a way of speaking effectively to black members of the jury, he feared, having black members on the jury, he feared frankly that he was going to be beaten. Now, in answer to your question, I think that the supervisory power would not be appropriate here principally because the jury clerk, as she testified, was not in any way affected by the telephone call. It didn't affect her conduct, and the telephone call was, while improper, was not designed to have an effect on her conduct. The most it does is, it reflects that which he had already indicated he was going to do, which is to strike the black jurors, and the second part of the answer is that under Swain we submit that however wrong the Court may now think that to have been, it was permissible under Swain, as we read Swain.
John Paul Stevens: Just to add on other thought, do you think that the federal government should be judged by precisely the same standards as states when evaluating the significance of reliance on Swain and the prior rule?
William C. Bryson: --Well, in Williams this Court said precisely that. The Williams case, one of the series of retroactivity cases, the Court said that there is no basis for drawing a line between the federal government and the state governments. Now, that is, I think, only a partial answer to your question because I think you are asking more about whether the federal government has a greater burden to anticipate a change in an equal protection subject such as this one. I think there were a number of offices, frankly, in which Swain was in a sense anticipated... I mean the overruling of Swain was anticipated because I think prosecutors stopped using strikes on blacks for race related reasons but--
Antonin Scalia: I don't understand that. Why is this? Federal officers are smarter than state officers?
William C. Bryson: --No, I am just--
Antonin Scalia: They take a different oath to support the Federal Constitution?
William C. Bryson: --Not at all. Not at all.
Antonin Scalia: Well, then, what is the basis for treating the one different from the other?
William C. Bryson: I don't think--
Antonin Scalia: I mean, if it was apparent to Federal prosecutors, it should have been apparent to state prosecutors.
William C. Bryson: --I don't think there is any basis for treating them differently. I am simply saying that the number of cases may be smaller. There may be a lesser effect on the administration of justice, in part because there may have been... it is conceivable that there may have been more anticipation of the overruling of Swain. On the other hand, unlike in the state system, there was no Federal court at the time this case was tried, no Federal court at all which had questioned the validity of Swain, continuing validity of Swain. The two Court of Appeals decisions which came down after this case was tried in this area did question the validity of Swain in a sense, but those were after this case was tried. There were some state court cases, I think, four of them. Four states had held that Swain would not be applied under state law. I see no real distinction between the two except, one could argue, in the extent that there is a smaller number of Federal cases for a variety of reasons. Now, the second question is one which I have already touched on, which is the degree to which the overruling of Swain was foreshadowed, and therefore any reliance on Swain was unjustified. First of all, as I have noted, there was very little contrary law prior to Batson. This Court had in the dissents from denial in the McCray case and two subsequent cases had indicated that Swain might be subject to reconsideration, but other than that there were only the two Court of Appeals cases going off on different grounds, on Sixth Amendment grounds, and a handful of state cases going off principally on state law grounds. But even if... I would add this case is not like a case such as the Brown case, the Brown against Louisiana, which held the Burch decision retroactive, in which there was no case out there to be overruled, and in which this Court's own decisions, prior decisions had given a clear indication that the Burch decision was on the way. This case is one in which there would have to be an overruling of Swain and in which there were no prior decisions of this Court that gave any indication that an overruling of Swain was coming. But beyond that a mere foreshadowing, this Court has held, is not enough to undercut reliance or reader a case not a clear break with the past. In the Desist case, this Court dealt with the question of whether the Katz overruling of Olmstead should be given retroactive effect, and the Court said no even though there has probably been no case in the... no constitutional case in the history of this Court in which the overruling of the prior decision was as clearly foreshadowed as it was in the case of Olmstead. Similarly, in the Williams case, the same result. This Court said that Chimell should not be applied retroactively even though Chimell was clearly foreshadowed by developments in this Court and in the lower courts, and perhaps most pointedly, the case which we think supports us most directly... excuse me... is the Daniels case, which held that Taylor against Louisiana should not be applied retroactively. In Taylor the Court had held that the exclusion of women from juries was a violation of the Sixth Amendment. Nonetheless, even though the Court said the judgment may appear a foregone conclusion from the pattern of this Court's cases over the past 30 years, and even though the unmistakable import of this Court's opinions since 1940 suggested the result that the Court was about to reach in Taylor, nonetheless the Court said the Taylor opinion would not be applied retroactively either on direct review or on collateral attack because it was necessary to reverse a prior decision which had approved the practice. At minimum, at worst this case falls within the pattern of Taylor, and we submit that it in fact is a such less extreme case than Taylor, and therefore calls for the application of the clear break test. Now, the Court has already dealt with, in Allen against Hardy, the question of the application of the Stovall factors to this case, and I will not go through them at length except to point out very briefly that as far as the most important of the Stovall factors, which is the effect on the truthfinding process, the Court acknowledged in Allen that, yes, the Batson case does have some effect on the truthfinding process, some effect, but that it serves multiple purposes, and it is not like those cases in which the new rule has had a direct and emphatic effect on the truthfinding process. The language that the Court has used in this area it seems to me is very instructive. The Court has said, for example, that a case affects truthfinding if there is a clear danger of convicting the innocent, a serious risk that guilt or innocence was not reliably determined. It is likely that many trial results are factually inaccurate. That's the kind of language that is simply inapplicable here because in this cases, while the new rule serves important and laudable purposes of reducing discrimination and increasing the confidence of the public in the administration of justice, it does not have a substantial impact on the truthfinding process because what is going on when you say that prosecutors cannot strike blacks on the ground of race is that... not that you are allowing on to a jury someone who is biased, as is the case, for example, in a case such as Turner against Murray, but it it simply saying that you are removing from the jury someone who is unbiased, the black juror, and you are replacing that juror with someone else who is presumably also unbiased. Now, it may be entirely an offensive practice. It may be... it has been declared by this Court to be an illegal practice, but what it does not do is to substantially impact on the truthfinding process because of the nature of the replacement that occurs. Now, as to reliance. I have already spoken at some length on the reliance factor, and I would only point out that to the extent that the... to the extent that the courts and commentators have construed Swain on the question of whether it constituted a change in burden of proof or whether it constituted a change in the nature of the rule affecting substantive conduct.
William H. Rehnquist: You mean Batson?
William C. Bryson: I am sorry. What I meant was that--
William H. Rehnquist: Whether Batson constituted a change?
William C. Bryson: --Yes, whether Batson constituted a change in what Swain had said. That's right. The courts and commentators talking about Swain have repeatedly held and repeatedly said that the Swain rule permitted the use of race in making peremptory challenges. The petitioners and the amici say that, well, no, Swain didn't really permit that, but regardless of whether Swain permitted it or not, virtually every commentator and virtually every Court that has analyzed Swain has come to that conclusion, and therefore even if the reliance by the Courts and by the prosecutors and by the appellate courts has been in retrospect incorrect, it was certainly not unreasonable. Based on that reasonable reliance, the lack of effect on the truthfinding function and the continuing effect of a change in the administration of justice we suggest that the Court should follow the Johnson case and hold that this is a clear break case which should not be given retroactive effect on direct appeal. Thank you.
William H. Rehnquist: Thank you, Mr. Bryson. Mr. Haddad, do you have something further? You have 17 minutes left.
Fred Haddad: I don't think so, Your Honor.
William H. Rehnquist: The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.


William H. Rehnquist: We'll hear argument first this morning in No. 89-1391, Irving Rust v. Louis W. Sullivan, and 89-1392, New York v. Louis W. Sullivan. Mr. Tribe.
Laurence H. Tribe: Mr. Chief Justice, and may it please the Court: We depend upon our doctors to tell us the whole truth, whoever is paying the medical bill... the patient or the government, whether in a Title X clinic or in the Bethesda Naval Hospital. Especially when a medical test confirms a condition that we had worried about, we all, I think, rely on the doctor to level with us in a discussion that follows the diagnosis.
Anthony M. Kennedy: Are doctors always involved in Title X programs?
Laurence H. Tribe: They supervise, Justice Kennedy. They are not always the personal counselor, but under the Title X regulations they are responsible for supervision. And the health care professionals to whom women speak, whether doctors or not, are ones that I think one would trust to tell one the truth. And if the government were to play a role in the picture I think we would assume that its role is to make sure that nothing relevant is left out. But if any of us were to discover that the government instead had arranged to have the doctor or the health care professional omit all information about one legally-available medical option and give you a referral list that is clearly tilted in the direction of the other option, regardless of what dangers there might be to your health, I would suppose that most of us would conclude that the government had used its bargaining power to betray a rather basic trust. Its contract with the doctor, if that really were a fair description of the situation, would violate its more fundamental contract with all of us, including the First and Fifth Amendments. By conditioning Title X grants on the regulations that we challenge in this case, the government, in the words of Judge Cardamone, concurring below, sets a trap for the unwary. The reason, quite simply, is that under these regulations not even the petitioners' private funds, sometimes in excess of three times the size of the Federal grant, may be used to provide uncensored medical information to the patients enrolled in the petitioners' Title X family planning clinics.
Antonin Scalia: Excuse me. I don't understand that to be the case, so long as those funds are not used in the Title X program. The Title X program, by the way, is how much Federal money? It's at least 90 percent, is it?
Laurence H. Tribe: Well, actually, Justice Scalia, the regulation makes reference to a 90-10 ratio, but, as the counsel for the Secretary explicitly conceded in oral argument in the First Circuit at footnote 59 of the Planned Parenthood brief, it's been a very long time since they have made any effort to live up with that. The reason has been that as Federal funds have diminished and as the government, I think quite understandably, has not wanted to penalize clinics for growing, the norm now is that the Title X program project, as defined under 59.2 of the regs, is typically funded at a level of 50 percent or less, as the Secretary conceded in the First Circuit, of the Federal funds. So that, for example, in the case of the clinics in this case, in Westchester-Rockland it's about 23 percent, in the case of the City of New York it's about 50.
Antonin Scalia: Where is the 90-10 pulled from?
Laurence H. Tribe: The 90-10 does have, actually, a statutory origin, and there is some confusion, I understand, about whether the statute has been properly construed by the Secretary of HHS in allowing the reach of the Federal hand to exceed this 10 percent Federal fisk. But, in any event, there's no dispute that the entire program... the family planning program at the Hub in the Bronx, the family planning program, including, as the regs call it, the comprehensive coherent set of plans and program... including the private money, is encumbered by these regulations.
Antonin Scalia: I suppose we ought to evaluate the Federal statute and the regulations under the Federal statute on the basis of what Congress contemplated when it passed it, and Congress appears to have contemplated a program that is at least 90 percent Federal money.
Laurence H. Tribe: That has been argued in various courts. It is still not resolved. I would say that much of our argument is completely independent of whether the private funds are 10 percent or 50 percent, because we will be arguing that in this case the regulations are sufficiently viewpoint-based that it would not be permissible for the government to impose them, even as a condition of expending its own funds. But when I reach that point, Justice Scalia, I think I will be adding a couple of thoughts about the way in which those arguments relate. The government actually claims no general authority, even with its own money, to trick patients about their medical situation after they have come to trust a doctor in a government-assisted clinic, and they certainly don't affirmatively claim that with respect to private funds they have the power to do that. Their basic claim is quite different. Their claim is that once the client is diagnosed as pregnant the Title X program, the provision of services, is over, so that the further discussion that might be had about abortion is simply outside the scope of the program. I think the fairest way to respond to that is simply to say that it just is not the case. Much of section 59.8 of the regulations is expressly directed to post-conception services, with only abortion counseling and referral banned. The section details the kind of information that a Title X client must be given once pregnancy is diagnosed, and indeed under the original version of the regulations it had said, and I quote, "no medical services or counseling after pregnancy is diagnosed. " would be allowed.
William H. Rehnquist: Certainly the government in its brief, Mr. Tribe, and perhaps it is wrong, seems to take the position that this is basically a pre-pregnancy counseling program.
Laurence H. Tribe: That's right, Mr. Chief Justice. We disagree with that. We think that's incorrect.
William H. Rehnquist: You say that that was not what Congress intended, or that's not what has happened in fact?
Laurence H. Tribe: I think neither. That is, President Bush, when a Member of Congress, was one of the leading co-sponsors of this law, and he said that the health care service mechanism that he had in mind was not just a population control mechanism. It should include an annual physical examination, and the regulations themselves have contemplated and the statute has said from the beginning that one must provide more than just a kind of pregnancy kit and see you later. And indeed the original version was objected to on the dramatic ground that it would permit no "counseling which discourages abortion". The Secretary explained at 53 Federal Register 2926 that that is why the current version does not contain any language suggesting that the program finishes when pregnancy is diagnosed. The aim was put very clearly in 52 Federal Register at 33.2.12, and I quote: "The express purpose"... and this is the purpose of the regulations about how the dialogue after diagnosis is to proceed... "is to ensure Title X projects do not provide counseling relating to the issue of medical indication for abortion. " That was the express purpose.
Antonin Scalia: I don't see where this argument is going. I suppose where is lead is since the only prohibition in the statute is a prohibition on the use of funds in programs where abortion is a method of family planning, and since you say that the program doesn't just authorize family planning but authorizes medical treatment after a woman is pregnant, then there really is no prohibition even on the conduct of abortion.
Laurence H. Tribe: No, Justice Scalia. I am sorry. If I left that impression, I surely did not mean to.
Antonin Scalia: Well, it's where your argument leads. I mean, it seems to me you are painting with a very broad brush when you say that the program is not just a program of family planning.
Laurence H. Tribe: No, I didn't say that, Justice Scalia. The concept of family planning under the program is a somewhat broader concept than would be suggested by a kind of truck stop pregnancy test. That is, many of these women are enrolled throughout their reproductive lives. When they are diagnosed as pregnant, the statute and the regulations in fact do not authorize the provision to these women of the gynecological, obstetrical, prenatal and other services that they might need. But the idea is that an important part of the program is not simply to put them out on the street without advice, without information. It is at that point to have a discussion with them about the options available, and in that discussion the regulations are quite clear in specifically prohibiting even neutral discussion about one option, namely abortion, and at the same time mandating with respect to the other option in this mutually-exclusive pair of medical choices, mandating the provision of a prenatal list, a list of prenatal care centers, which under the regulations must include all prenatal care providers in the area, must exclude all clinics specializing in abortion, and must be limited to clinics that are committed to the welfare both of the unborn child and of the mother. So that the message, quite plainly, of your doctor handing you, after a pregnancy diagnosis, a list of this sort and saying this is a list of places that will be concerned with you welfare and that of the unborn child is basically that your welfare is not endangered by the birth of the child, and the implicit message is that abortion needn't concern you. And, indeed, if the woman asks she may be told that the project does not consider abortion an appropriate method of family planning. So this is all quite obviously reassuring, but it is not a--
Byron R. White: But isn't the program permitted to respond to a question? Aren't there some abortion agencies around? Aren't they permitted to identify some in response to a question?
Laurence H. Tribe: --No, they are not, Justice White. That is, what would be steering and referral in clear violation of the regulations. They are allowed to say... they would be allowed to hand the woman a copy of the regulations, I suppose, although that might be said to be handing her material that could be encouraging of abortion. I would hope not. If they hand her that list... that is, the information on how the list is composed... she will understand that by coincidence there might be some abortion providers in the area, but even if they include a hospital which might, for example, provide abortion, the Federal Register 53 at page 29.38 says that the referral must be specifically made to its prenatal care service. So that if the woman finds the needle in the haystack it's not going to be by the government's design. Indeed, the Secretary, below, said it was designed to have no loopholes. And, when asked below whether the woman could be told that maybe under A in the Yellow Pages she would find something that could be relevant to her, the government said no. And two of the three judges below said that that would probably be, in their view, impermissible. So this is not a neutral--
Byron R. White: Is your argument now suggesting that or arguing that the regulations are inconsistent with the statute?
Laurence H. Tribe: --Well, we have argued throughout that the regulations go way beyond the statute, but I'm now arguing that, even if they didn't, that a government command--
Byron R. White: You're making a constitutional argument now.
Laurence H. Tribe: --That's right. And we're saying that--
Byron R. White: Even though perhaps we should deal with the statutory question first?
Laurence H. Tribe: --We'd be entirely happy to have you say that, to avoid the constitutional question.
Byron R. White: Or are you just following the ordinary rule that you're arguing your strongest point first?
Laurence H. Tribe: Well, I don't know whether that's the best rule. One sometimes wants to wind up and finish with a bang. [Laughter] But I think the point is that it's partly because of the constitutional doubt about these regulations that we would not suggest that the normal rules of Chevron in deferring to the HHS are appropriate. And because of that we would suggest that if the constitutional cloud seems sufficiently ominous one might simply read the statute the way the Secretary himself read it for the first 11 years, simply to permit options to be presented to the woman and perhaps the way it's been read since '81, namely to require the neutral provision of options, but not the way these regs read it.
Sandra Day O'Connor: Mr. Tribe, do you concede that the way the Secretary originally interpreted it is constitutional?
Laurence H. Tribe: We think in respect to that, Justice O'Connor, that permitting options to be presented is surely constitutional. The part where I am not as certain... we were never in a position to challenge it because the clients that I represent, the City, the State of New York, and the various clinics do not themselves engage in encouraging or promoting abortion... but insofar as that was a viewpoint-based limitation I suppose an argument could be made that that part was not constitutional. We do not make that argument here. We do argue that when in respect to a binary choice about one's medical fate the government suppresses talk about one branch, even neutral talk, and mandates steering in the other direction, that that is the impermissible suppression of information.
Byron R. White: And why is that unconstitutional?
Laurence H. Tribe: Because, I guess, as Justice Rehnquist said in his concurring opinion in Bolger v. Youngs Drug, the central purpose of the First Amendment is to prevent the suppression of information.
Byron R. White: So this is a First Amendment argument?
Laurence H. Tribe: It's strictly a First Amendment argument.
William H. Rehnquist: But is it peculiar to the medical situation here? Because certainly if the government is talking about the Secretary of State hiring a press or public information officer or the press secretary at the White House, the press secretary or the public information officer are not free to say look, I want to tell the reporters everything I know, if the Secretary of State says you play this down.
Laurence H. Tribe: Some of them don't seem to realize that. [Laughter]
William H. Rehnquist: Well, some of them may not realize it, but I think they'll soon learn. [Laughter]
Laurence H. Tribe: That's right.
William H. Rehnquist: Would you agree that is not unconstitutional?
Laurence H. Tribe: Absolutely, Mr. Chief Justice. The difference... it's not peculiar to the medical profession. The real difference is that some people serve as mouthpieces for the state... speechwriters, spokespersons; other people serve as professionals in whom people place their trust. That's at the other end of the spectrum. And we suggest-- [Laughter] I didn't quite mean it that way. The point really is that the people in Title X clinics look like doctors. They are dressed like doctors. They act like doctors. And, therefore, when they try to speak like doctors the fact that the government has selectively shaped their speech has First Amendment significance that it wouldn't have if everyone looked at them and said, these are the Solicitor... I didn't mean the Solicitor General-- The Surgeon General of the United States. In other words, these are not the Voice of America. These are the voice of medical professionals.
William H. Rehnquist: You don't challenge the statute, though, do you?
Laurence H. Tribe: No. We think the statute would be unconstitutional only if it were written specifically to authorize these regulations; otherwise, excluding abortion from this funding I think is clearly permissible under Harris and under McRae.
Anthony M. Kennedy: Under the Secretary's former interpretation, the one that you would like us to in effect go back to, suppose this medical care professional said, in our view, from your standpoint and your family situation, abortion is the recommended choice for family planning, and we urge you to have an abortion and here is the name of a place where you can obtain that. Is that consistent with the statute?
Laurence H. Tribe: I think not, Justice Kennedy. It seems to me that this statute is most plausibly implemented by maximizing the autonomy of the patient and by steering the patient in neither direction but by suppressing information in either direction. That is, I would think that the most obviously constitutional way to implement it is to permit, as the Secretary did until 1981, or to require, as the Secretary did from 1981, the provision of a neutral set of options so that the person can make an intelligent choice. Justice White I think--
Anthony M. Kennedy: So that it's wrong to make a recommendation under the First Amendment?
Laurence H. Tribe: --It's not wrong to make a recommendation. It is, however, consistent with a program designed to provide information and not designed to steer people toward any choice to insist that the professional stand back and play a more passive role.
Anthony M. Kennedy: Well, I take it that a doctor could, under your view, under the statute as now interpreted or as previously interpreted, strongly recommend contraception.
Laurence H. Tribe: There's no doubt that the doctor could say... however, if the--
Anthony M. Kennedy: So that's not viewpoint-neutral.
Laurence H. Tribe: --Total viewpoint neutrality in this area I have to concede is difficult to achieve because the very fact that these are professionals and that laws of informed consent surround this area means that they can be required to provide information without which an informed choice can't be made. As Justice White suggested in his Thornburgh dissent, the average person has no one but his or her doctor to look to for these matters. And that is why the American College of Obstetricians and Gynecologists and the American Medical Association have concluded that actually abiding by these regulations would be profoundly unethical, and that's why we believe it would be malpractice in a great many states. That is, there are a great many situations generically in which a woman has no way of knowing when she comes into the clinic if abortion might be one of the things that would be medically relevant to her. She might be quite opposed to it morally, and yet if, for example, she was using a contraceptive method like an IUD which, when left in place might create a risk of a spontaneous second trimester and possibly fatal abortion, surely that is something that she would be entitled to know. And there a great many women like that. There are, in addition to that, some 590,000 women who visited Title X clinics in 1988 who had some background medical complication... whether cancer or diabetes or hypertension or multiple sclerosis or chronic heart disease... who might have no idea, as most people do not, that these conditions can sometimes be induced to recur, can be aggravated by the continuation of a pregnancy.
Antonin Scalia: As a matter of public policy, that may not be a desirable thing, but the woman is in no worse position than she would have been in had the Title X clinic not existed. So long as the clinic makes clear to her that we do not recommend abortion, we are not in that business... here is a list of providers, some of which providers, by the way, can provide abortion services... they are not excluded from referral, are they... only if their primary business is the--
Laurence H. Tribe: That's correct. Justice Scalia, let me tell you why I think she is worse off. It really goes back, in a way, to a point you made in Evans and Ulman. On the question... well, let me why it struck me at the time as making a similar point, and I guess the court did it in Milcovitch. It's really very hard for a disclaimer to undo the misimpression that can result from something... that is, the Evans and Novak column, with its factual misstatement, shrouded in a disclaimer saying this is opinion, or the Lorraine Daily Journal or Milcovitch, this is just opinion. The fact is that if in the context there is something that might be injuriously misleading to the reader or to the listener, saying don't trust all of what I say, it may not be complete, may not be enough, partly because a woman will have come to rely on this doctor over the years... some of the women that I met in the clinics that I visited had gone there for a long time. This is not just a one-stop thing. Many of the clinics, by statutory design, induce reliance. So a woman relies on the doctor for a period of time. The doctor says I see you're eight weeks pregnant. Here's a prenatal referral list. The woman doesn't have any idea that her underlying medical condition might make that pregnancy turn into a really serious threat to her health. The doctor isn't allowed to tell her that it might. Under the regulations, that would be promoting the termination of the pregnancy. She walks out of there with a prenatal referral and--
Antonin Scalia: --Excuse me. Is it clear that the doctor can't tell her that, that the pregnancy may create a serious threat to her health?
Laurence H. Tribe: --Yes, I think it is clear, Justice Scalia. The Secretary's explanation--
Antonin Scalia: Where is that?
Laurence H. Tribe: --Well, the Secretary's official explanation of the regulations said that they were designed to prevent any expression of medical indication for pregnancy, and I don't think there's anything in the regulations that would suggest that he could warn her in that way. But, in any event, if she said, well, what should I do about that--
Antonin Scalia: You see, this is an important point you are on now. I read the regulations as preventing any referral of abortion or even reference to abortion as a means of family planning, but I think they draw a clear line between abortion as a means of family planning and abortion as a medical necessity. There is a specific reference to ectopic pregnancy in one of the exammples that they give.
Laurence H. Tribe: --Yes. It's made clear at 33.2.12 of the Federal Register, Volume 52, that the point of the ectopic pregnancy example is simply to say that if there is an imminent threat to life they cannot refer her to someone who might do an abortion, but to an emergency room. But the reference to abortion as a method of family planning, Justice Scalia, the words "family planning" I think have no meaning under the government's reading of the statute or ours, in this sense. If a therapeutic abortion, an abortion for reasons of health, were not encompassed within that concept, then there'd be nothing in the statute that would even prevent the use of Federal funds directly for the performance of abortion to protect the woman's health. And it seems to me that that's clearly not what the regulations mean. That is, the regulations are clearly designed not to in any way, as 59.10 says, promote or encourage abortion. And to tell her that if you remain pregnant it might hurt your health is surely to promote or encourage abortion. Let me add, though, that--
Byron R. White: Suppose, Professor, that the doctor gives neutral advice or is permitted to give this neutral advice and provide all the information and then the patient says, well, look, I've been coming to you. I usually want your opinion. What should I do about this? You say that the statute may constitutionally prevent the doctor from answering that question?
Laurence H. Tribe: --I guess answering truthfully what his opinion is in a way that does not steer or encourage her... these are lines that are terribly hard to draw, which is why the government oughtn't to be in the business of editing these dialogues... I think is beyond what the government could forbid. But what it tries to forbid here--
Byron R. White: Well, the statute would forbid it.
Laurence H. Tribe: --Well, I suppose you might--
Byron R. White: I thought you said the statute was... you weren't challenging the statute.
Laurence H. Tribe: --The statute would forbid encouraging or promoting, not necessarily when pressed saying his own truthful--
Byron R. White: You don't think saying my opinion is you should have an abortion is promoting?
Laurence H. Tribe: --Justice White, I must say that I think there is no easy way to figure out where to draw that line, and insofar as the statute is read to control speech it raises a profound problem in any event. But the worst problem is created when the regulations are as viewpoint-based as these are. That is, these regulations draw a sharp distinction between advocacy and literature distribution which is pro-choice and which is pro-life. The combined effect of 59.9 and 59.50 is that it is permissible with the Title X project, quite apart from this dialogue, to engage in vigorous advocacy and legislative lobbying in favor of the pro-life position, not in favor of the pro-choice position.
John Paul Stevens: Mr. Tribe, have you made a complete answer to Justice Kennedy's question of why wouldn't it not be equally viewpoint-neutral for these people to advise the use of contraceptives?
Laurence H. Tribe: Why it would not be viewpoint-neutral to advise?
John Paul Stevens: Yes, to take the position that it's appropriate for the people that visit the clinics to use contraceptives. Isn't that advocating a viewpoint, too?
Laurence H. Tribe: Well, the point isn't that the professional cannot advocate a viewpoint. It's that the government cannot suppress a particular kind of information in the dialogue, and that it cannot create a viewpoint-based tilt, even in the expenditure of its money. And in this case, if I might remind the Court, given how much private money is also burdened, the case is very like League of Women Voters.
Antonin Scalia: Well, don' the regulations prevent the hiring of advice-givers who say the only form of family planning you should use is natural birth control? You should not use artificial birth control. Isn't that forbidden by the regulations?
Laurence H. Tribe: Well, the regulations do suggest that the full range of options--
Antonin Scalia: More than suggest. It has to provide a broad range of--
Laurence H. Tribe: --But that's like informed consent, Justice Scalia.
Antonin Scalia: --Why is it like informed consent? It's saying you can only give one advice. You cannot advise the person to use only natural family planning.
Laurence H. Tribe: It's that you must provide the person with the full range of options. It is not that you cannot, if asked, tell the person what you think would be best, but you are not supposed to--
Antonin Scalia: I think the full range of options is not best. I think you should only use one. You are not allowed to provide that kind of advice. You have to provide the full range of options.
Laurence H. Tribe: --If the Court had before it a challenge, there is under the statute a conscientious exemption. That is, someone cannot be forced under these regulations to give advice that violates his or her conscience or religion. But it's true that any program that has programmatic requirements will exclude some possible providers. A drug counseling program plainly is going to exclude people whose opinion is that there should be no drug counseling and that everyone should take drugs. But here it is not as though a plausibly neutral line has been drawn in terms of the purposes of the program. What's happened is that truthful information that may be relevant is being deliberately withheld from people who have every reason to expect it and that, on top of that, with respect to advocacy, with respect to the preparation and distribution of literature, with respect to the leaflets that are left in the waiting room, there is a censor overseeing the entire process, saying that if they advocate abortion or in any way enhance its accessibility or its availability, the regulations have been violated.
William H. Rehnquist: You say the First Amendment prevents the government from refusing to fund pamphlets that promote abortion?
Laurence H. Tribe: It's not that the government has an obligation to fund them. But if the government said--
William H. Rehnquist: Well, I thought you just said pamphlets in the waiting room that advocated abortion.
Laurence H. Tribe: --Paid for by private funds, Mr. Chief Justice. But in TWR, for example, when you wrote that the line that was drawn by the government with respect to lobbying was acceptable because veterans and non-veterans are distinguishable without regard to viewpoint, imagine in that case if they had said we will subsidize pro-life lobbying but not pro-choice lobbying. Now the government does not have the power, the Court has said and held in Speiser v. Randall, to make a financial benefit available, even if it's a government subsidy, based on the viewpoint expressed. It's particularly not permissible for the government, as it does here, to say that all of the literature and all of the material, even if paid for, as in the case of many of these clinics, fully by non-Federal funds, must be expelled from the project.
William H. Rehnquist: Well, does it make any difference in constitutional terms whether these pamphlets in the waiting room are paid for by private funds or paid for by Federal funds?
Laurence H. Tribe: I think it makes a difference, Mr. Chief Justice, whether they attempt to extend their quite limited power to assure how Federal dollars are spent. That is, otherwise it could have been said in League of Women Voters that because the parent organization could always go off and put the same editorial on CBS or could publish it somewhere else with its own money that its private money was therefore not encumbered. But this Court did not take that view. I had meant to save some time for rebuttal.
William H. Rehnquist: But you haven't. Thank you.
Laurence H. Tribe: Thank you.
William H. Rehnquist: Thank you, Mr. Tribe. General Starr.
Kenneth W. Starr: Thank you, Mr. Chief Justice, and may it please the Court: In light of what we have heard this morning, let me begin with a few very brief points of clarification. First, the context. This case involves a Federal program that is specialized. It is not Medicaid. It is not community health services. It is a family planning program and which the Secretary views, consistent with Congress's intent, as being a term of art. It means, as the conference committee report suggested, preventive services, preconceptional services. It does not mean counseling or treating a pregnant woman, other than as part of her transition out of the family planning project, the Title X project, to another health care provider. That is what these regulations were designed to do in response to criticisms leveled at the program by the General Accounting Office, by the Inspector General, and then pursuant... and I think this is important in terms of the orderliness of the procedure. There was a notice and comment rulemaking here which was responsive to the very kinds of concerns that had been identified by the General Accounting Office. That is to say the Secretary, among other things, had proceeded in a very informal way. There had never been regulations. There had only been informal memoranda from the Office of General Counsel which were responding to ad hoc requests for essentially a no-action kind of letter or advice and the like. Guidelines were finally promulgated in 1981. Those guidelines themselves represented a shift in the agency's position. Frankly, there had been, prior to the notice and comment rulemaking, great uncertainty and confusion and indeed I don't overstate it by saying chaos in the system as to precisely what was permitted and what was not. And in the notice of proposed rulemaking and throughout the Secretary made it very clear that this program was limited. Professor Tribe has quoted from the Federal Register. Let me share one very brief quote as well. The Secretary said... this is at 52 Federal Register 33. 2.11... "as clearly contemplated by Title X and its legislative history, family planning is meant to address plans and methods for facilitating or preventing pregnancy, not for terminating it. " "As such, medical services or counseling relating to pregnancy care after pregnancy diagnosis or any services relating to abortion as a method of family planning are outside the scope of activity supported by Title X funds. "
Sandra Day O'Connor: General Starr, do you take the position that the way the program was being run before these current regulations went into effect somehow did not meet the requirements of the statute?
Kenneth W. Starr: I think the answer to that is yes in this sense, Justice O'Connor. The Secretary did come to the view that the kind of counseling that was going on was not in fact consistent with the Secretary's reading of section 1008, and at a minimum with the purpose. What the Secretary saw as the purpose was not to encourage or promote abortion, and that was being done.
Sandra Day O'Connor: Well, you take the position that compliance with the memos that had been sent in prior years in response to questions about providing neutral information was itself in violation of the statute?
Kenneth W. Starr: I don't think at the time, Justice O'Connor, for this reason.
Sandra Day O'Connor: It would be now, but not then? Is that what you are saying?
Kenneth W. Starr: I think so. As odd as that may seem, I think so in light of the notice and comment rulemaking and the General Accounting Office report because, Justice O'Connor, those--
Sandra Day O'Connor: Suppose a different rule had been adopted, one in accordance with the prior memos? Would that be invalid under the terms of the statute, in your view?
Kenneth W. Starr: --If it had had the effect of promoting or encouraging abortion, then I believe it would. We would owe a deference to the Secretary.
Sandra Day O'Connor: I'm not sure that's responsive.
Kenneth W. Starr: I'm sorry.
Sandra Day O'Connor: Because the prior memos at least purported to say viewpoint-neutral information may be given.
Kenneth W. Starr: That is exactly right. It was thought that non-directive counseling could in fact be consistent with the mandate, as those early memos, if you look at our footnote 3, the Carol Conrad memorandum said very clearly that promotion and encouragement of abortion is forbidden. We believe, speaking on behalf of the General Counsel in this informal setting... this is not the Secretary speaking; this is not through a notice and comment rulemaking; this is an important lawyer's opinion... it was her opinion that non-directive counseling was consistent with that goal. The Secretary, after a notice and comment rulemaking, after GAO criticism, after an Inspector General criticism, said that is not so. And what we want to do is to return to what this program is about, which is preventive care.
Sandra Day O'Connor: But could the Secretary have taken the position of that earlier response and been within the meaning of the statute?
Kenneth W. Starr: I think that's problematic. I have, frankly, serious doubts that the Secretary could have, but I don't think we have to resolve that definitively here, and reasonable minds may differ on that.
Byron R. White: Well, not if experience had shown that viewpoint-neutral information really wasn't consistent with the statute.
Kenneth W. Starr: Well, especially, Justice White, and getting back to what this statute is all about, what the Secretary saw is that this is a statute about preventive pre-conceptional services, that is to say providing pregnancy care goes beyond the statute.
John Paul Stevens: General Starr, can I ask you, on that very point, the regulations, at least as quoted in the briefs, say that once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of the mother and the unborn child. Is that provision authorized by the statute?
Kenneth W. Starr: Yes, I think so. The Secretary has long felt that the program must be administered in a humane, compassionate way that in fact attends to the health needs of the individual and to refer that person to an appropriate provider of medical care.
John Paul Stevens: So the statute does require some post-pregnancy counseling?
Kenneth W. Starr: In the sense of transition, transitional referral, and providing, I think the regulation goes on, Justice Stevens, to say--
Antonin Scalia: Never mind the regulation. Where does the statute require that or authorize that, for that matter?
Kenneth W. Starr: --I don't think it requires it. I think that the Secretary, in his discretion, has determined that as a matter of common sense interpretation there must be a transition out of Title X to protect... in essence to maintain the status quo until the referral appointment can be kept. They will assist in keeping the referral appointment. And to ensure that the status quo is maintained the individual is given necessary information to protect the health of the mother and of the unborn child.
Antonin Scalia: Well, then why would it prohibit giving necessary health information in that rare case in which abortion might be medically indicated? I don't understand the distinction.
Kenneth W. Starr: If there is an emergency, then it can be.
Antonin Scalia: No, it's not an emergency, but it's the better of two options just from a purely medical point of view, not for any family planning reason... just for the health of the mother. Why can you say in the one case it's appropriate to have post-pregnancy advice and the other it's not appropriate... under the statute only? I'm not talking constitutionally.
Kenneth W. Starr: Post-pregnancy advice is terribly limited. It's terribly limited because of the humanity of the situation. The individual needs to get to an appropriate provider of health care. She has, as it were, graduated from Title X. If the individual is going into detailed options counseling, providing Spock on baby care and the like, showing baby care materials and the like, that is beyond the scope of Title X.
John Paul Stevens: But this is not?
Kenneth W. Starr: I don't think so, and certainly they have not challenged the fact that the individual should be given enough information to maintain the status quo until that short period... and we hope it would be a very short period... until she could see a physician who is in fact outside of the Title X program.
John Paul Stevens: I don't understand what you mean by the status quo. The status quo is she is pregnant. [Laughter] She doesn't need advice to stay pregnant.
Kenneth W. Starr: You are quite right. My choice of terms is infelicitous. To maintain the circumstances so that she can in fact get... that is to say, if she needs information. You are pregnant. You should now in fact see an appropriate provider of medical care. Here is information that you need to know. I'm scheduled to go to a party tomorrow night, and I tend to be a heavy drinker. It is completely appropriate for the physician... and of course this is typically, the counseling is typically done... and I think our colleagues on the other side realize this... by health care practitioners, by nurses and nurse practitioners, are entitled to say here's a list of appropriate care providers, but at that party don't drink at all because you may damage your health, you may damage the health of the unborn child. That is appropriate, the Secretary has determined, in his interpretation of the statute. There is no constitutional problem here by virtue of the Secretary following the very path that was laid down by the court in FCC v. League of Women Voters. That is what the program integrity requirements are all about. So that to maintain the abortion neutrality of the Title X program, to keep abortion out of that program entirely, the Secretary, through the 59.9 integrity regulations, permits the establishment of a separate vehicle.
Antonin Scalia: It isn't an abortion neutrality. It is the one thing that is singled out that shall not be used as a means of family planning.
Kenneth W. Starr: It certainly tilts against abortion. There is no question about that. But what the program integrity requirements permit is complete non-neutrality. That is to say, the grantee... that is why the Secretary was quite precise in drawing the line between the Title X program or project and the grantee. The grantee is at liberty to have an abortion services clinic and the like to provide abortion-related information, to provide abortion counseling. And that is exactly what this Court said in League of Women Voters was in fact permissible, following the lead of what the Court indicated in Reagan v. Taxation with Representation.
Anthony M. Kennedy: But not as part of this program.
Kenneth W. Starr: Exactly, Justice Kennedy. That is the precise point. This is a limited program. The prohibition runs only to the program, and that is what takes this out of the unconstitutional conditions line of cases.
Anthony M. Kennedy: Suppose the medical care provider in the Title X program ascertains that the woman is pregnant. That provider has a regular practice of engaging in performing therapeutic abortions. Can he say I want you to make an appointment with me tomorrow at my other office, and I am going to give you some advice?
Kenneth W. Starr: Not if in that latter capacity that provider's principal purpose or principal business is the providing of abortions.
Anthony M. Kennedy: Then you are saying that this Title X grantee can still engage in abortion. It's really meaningless. This woman might find them out. She might not.
Kenneth W. Starr: But the list that can be provided, Justice Kennedy, I wouldn't focus on that one provider. The list is to be in fact a global list, leaving out only one kind of entity, and that is entities whose principal business is the providing of abortions. There can in fact be providers on that list who do provide abortions, in response to Justice White's question.
Byron R. White: Well, the lady asks the doctor in one of these Federally-funded organizations, asks the doctor, well, could you tell me where I can get an abortion. And he says no, I can't tell you where to get an abortion. But I'll tell you I'm going to refer you, give you a list of health care providers, and some of those people can answer questions that I can't answer. Is that all right?
Kenneth W. Starr: That is correct. That is entirely correct. In fact, part of the theme that we have heard, Justice White, is that there is distortion, there is trickery. There should be none at all. If the program is proceeding with integrity, as it should, it will be up front with the clients of the Title X project and say we do not counsel with respect to abortion as a method of family planning. We do not refer to clinics whose principal business is the providing of abortions. What we are going to give you, now that you have been diagnosed as pregnant, is a comprehensive list and on this list are appropriate providers of medical care to protect the health of the mother and the unborn child. And on that list there can in fact be providers who do provide abortions.
David H. Souter: General, what do you say the statute and the regs permit in a situation in which the object is not simply to preserve the status quo but the situation in which the Title X physician in the course of his consulting or examination concludes that the mother is pregnant and in fact is in some imminent danger to health? In that case, do you take the position that either the statute or the regs permit the Title X physician to say you are in danger to health as a result of your pregnancy and one appropriate response to that would be to have an abortion and I will refer you to a hospital or a physician who can provide it? Would that place the program in violation of either the statute or the regs?
Kenneth W. Starr: Part B does, Part A does not. To say in Part A of your hypothetical your health is in danger, you do need treatment, that is absolutely fine, and to refer the person to an emergency provider of medical services is fine. To actually go forward, as I understand the hypothetical, and to counsel you need an abortion is beyond the mandate. And the person can say, the health care provider can say, I'm not going to trick you. I'm not going to deceive you. This is important. Here is a list. In fact, I need to get you over for emergency care, but I am not at liberty to be counseling with respect to the appropriate medical treatment.
David H. Souter: Even in that case he's not counseling for the purposes of family planning. He is in fact acting as a physician for the purpose of preventing an imminent risk or removing an imminent risk to the patient's health. Why does that violate the statute or the regs?
Kenneth W. Starr: The problem is the context, that that advice is being given in the context of a Title X family planning program. And in fact the Secretary reasonably reads the 1008 prohibition that the goal that Congress had in what was inherently a controversial program is let's not bring abortion and the abortion controversy into the program. We have made the decision to bring contraceptives in.
David H. Souter: But isn't he going a step further? Isn't he saying, if he follows the position that you have just outlined, isn't he saying that in fact if a Title X physician sees a professional, a standard professional need or obligation to give advice for the purpose of protecting the health of his patient from imminent danger, and in giving that advice he is not giving it for the purposes of family planning but simply for those traditional purposes, that too is forbidden? Doesn't that go beyond the statute and the regs?
Kenneth W. Starr: I don't think so, Your Honor, because at that point the person, the physician in your hypothetical... I think it is an extreme hypothetical, but accepting it and facing it... I think in that hypothetical the physician has transcended the boundaries of Title X. His Title X hat, family planning services, is on. Once he steps out of that hat and begins treating the individual's pregnancy, he is providing a different kind of medical care beyond the scope of Title X, quite apart from abortion.
Antonin Scalia: The Secretary requires him to do that, as Justice Stevens' question earlier demonstrated. I mean, it's the Secretary that says you have to provide this kind of medical care in the regs.
Kenneth W. Starr: That you have to provide medical care that is needed during that interim period... I won't use status quo... during the interim period when an appointment is to be made. The key is make an appointment, and that's what I think the regulations suggest. Make an appointment with an emergency provider of services, and you can assist the person in making sure that that emergency appointment is in fact kept.
David H. Souter: But in my hypothetical the interim period may be extraordinarily short. For all we know, the high blood pressure is going to result in a stroke within the next hour, and it seems to me that you are telling us that in those circumstances... to be sure that is not what Title X was concerned with, but in those circumstances... the physician cannot perform a normal professional responsibility which is outside of the object of Title X funding, even though that responsibility does not violate the prohibition against using abortion counseling for family planning. I think you are telling us that in that circumstance, simply because it is outside the object of Title X, the Secretary in effect may preclude professional speech.
Kenneth W. Starr: I don't think that the program is prescribing professional speech, if I accept your hypothetical as not in fact permitting what the Secretary contemplated to take place. Here is what the Secretary contemplated... that in cases in which emergency care is required... that's, I think, what we are dealing with... a Title X project shall be required only to refer the client immediately to an appropriate provider of emergency medical services.
David H. Souter: It's one thing to say it may be required only to do that. It's another thing to say that he may be precluded, the physician may be precluded from something else, even though it does not violate the condition that Title X may not use abortion for family planning.
Kenneth W. Starr: That may very well be.
John Paul Stevens: May I expand on that? Supposing the case is not one of emergency at the time of the conference but in the doctor's professional judgment unless steps are taken within 30 days there is a danger of an emergency, and he thinks the appropriate way of avoiding that danger is to at least consider abortion as an option. What is he supposed to do under the regulations?
Kenneth W. Starr: I'm sorry. I missed the last part of the hypothetical.
John Paul Stevens: What is the doctor's... how much freedom does the doctor have to explain to the patient that in the next 30 days you ought to have some tests to see whether or not it's appropriate to have an abortion, because that may be the only way to avoid a risk that is not today an emergency but may become an emergency in three weeks?
Kenneth W. Starr: I think that the physician is at liberty to provide medical information that is necessary, and so I think that the physician in that hypothetical could respond, provide that physician's best medical judgment, as long as the physician does not in fact steer the patient in the direction of an abortion, but, rather, steers the patient in the direction of an appropriate care provider.
John Paul Stevens: Well, but may the physician... I don't want to use the word "steer"... may the physician, as a part of his or her explanation of the problem, say that the reason I want you to see some other professional is I think it may be appropriate to avoid this danger by getting an abortion?
Kenneth W. Starr: I think that, in my judgment, that goes beyond what is permitted under Title X.
Antonin Scalia: Well, is it permitted for him to give any other medical judgment? Is he permitted to do anything but refer? I mean, suppose he... is he permitted to give the judgment, in my opinion, you should have the following course of treatment?
Kenneth W. Starr: He should not in fact, Justice Scalia, be in the business of treating pregnancy and caring for the person in her pregnant condition.
Antonin Scalia: I thought he can only refer.
Kenneth W. Starr: Exactly right.
Antonin Scalia: And in the event of an emergency of the sort Justice Souter was referring to he can refer even to, as I read the regulations, even to an agency whose principal business is abortion.
Kenneth W. Starr: I don't think that the regulations by their terms rule that out. It simply says emergency and an appropriate provider of emergency services. At that point, the health of and welfare of the mother are paramount, and the physician must in fact make the appropriate referral to an emergency provider.
John Paul Stevens: Let me ask one other question. Again assuming it is not an immediate emergency but a concern about 30 days from now, could the doctor say I just happened to notice this, I think you ought to have your tonsils taken out? I'm serious about that.
Kenneth W. Starr: Yes. I think that the physician can in fact alert the individual to a potential medical problem.
John Paul Stevens: And suggest the proper solution, in his or her judgment?
Kenneth W. Starr: I think at that point the physician may very well be going beyond what Title X is all about. As an enforcement matter, as a practical matter--
John Paul Stevens: It's no longer family planning, but is it something that the statute would prohibit the doctor from doing?
Kenneth W. Starr: --I think it goes beyond the terms of the statute. Whether an enforcement action would be brought is quite another thing.
John Paul Stevens: That's not my question. Do you think the statute would prohibit the doctor from giving medical advice that is not specifically authorized by the statute or contemplated within the notion of family planning? He just sees a problem with the patient and says, look, I think this is what you should do. My understanding is he can give any medical advice he wants to, except that he cannot say that I think an abortion is indicated.
Kenneth W. Starr: I disagree with that. On your tonsils example, it seems to me that under a de minimis approach that is unobjectionable. With respect to--
John Paul Stevens: Well, say it's appendix or say it's major surgery, you ought to have a bypass operation. There are a lot of things that are... if it's important, can he do it and unimportant not? Is that your notion?
Kenneth W. Starr: --No. I think that the physician is simply going beyond what Title X is all about.
John Paul Stevens: I understand he's going beyond what's been authorized. I'm asking if it violates either the statute or the regulations to give that kind of medical advice.
Kenneth W. Starr: I think it will violate the terms of the grant, because the grant is in fact... they are funding this physician to provide Title X services.
John Paul Stevens: So if he gave that kind of medical advice you could withdraw the grant for the future?
Kenneth W. Starr: In terms of what... oh, I didn't say that at all.
Antonin Scalia: Suppose I thought--
Kenneth W. Starr: Not at all. There may have been... there are all kinds of violations.
Antonin Scalia: --What are the consequences if violating the regulation about abortion? What can happen to the doctor for doing that?
Kenneth W. Starr: The program may be the subject of an audit and then appropriate action taken, which could include not renewing the grant.
John Paul Stevens: Could the same action be taken if he gave advice to have a tonsillectomy, and, if not, why not?
Kenneth W. Starr: Well, it might, because the individual is at that point transcending Title X.
Antonin Scalia: I presume you would certainly terminate the grant if indeed that were the regular practice, that people were coming in to get family planning advice simply because at the end of it the doctor said, by the way, while you're here, let me look at your tonsils. And they were regularly treating people or giving advice about all sorts of medical conditions. You would probably terminate the program in that event, I would assume.
Kenneth W. Starr: That is precisely why I was suggesting the possibility of a de minimis exception. That is to say there is no rule that--
Antonin Scalia: With respect to abortion consultation, that is much more likely to happen regularly than is advice about tonsils.
Kenneth W. Starr: --Individuals are coming in, exactly, for the purpose of receiving family planning.
John Paul Stevens: Well, does it happen regularly that when a pregnant person comes in that there's a medical need unrelated to family planning problems? I thought you said that was the rare exception.
Kenneth W. Starr: Well, the individual can again be referred out. I think we're talking about here is what you should do. In your hypothetical, Justice Stevens, as I understand it, the physician is saying I am here as a Title X physician, but I am telling you to go have your tonsils out. The individual is, it seems to me, at that point practicing beyond the scope of the program.
John Paul Stevens: Just if a doctor sees a medical problem, is the doctor permitted to tell the patient about the existence of the problem, with the normal recommended, what his professional advice is. I guess you are saying no, that he cannot.
Kenneth W. Starr: He certainly is able to say I have spotted a tonsils problem and you should go have it attended to. It is not the purpose of this project to tell you exactly what you should do, but we will assist you in finding an appropriate health care provider. Last point that I would like to make on the unconstitutional conditions point. Much has been said about Perry against Sindermann and the line of cases that suggest that the government cannot in fact require someone to give up a liberty as a condition for a particular kind of benefit... Speiser against Randall and the like. That, as I was saying before the colloquy, about what the regulations permit, is exactly why the Secretary has the program integrity requirements, to permit these kinds of services to be permitted through a separate vehicle, and by virtue of that there is in fact no extension of the prohibition beyond the program itself. The prohibition is entirely program-specific, and by virtue of that there is no unconstitutional condition that is being mounted or imposed upon these individuals and on these clinics. Above all, as this Court has said time and again, the law assumes a robust common sense, and a robust sense that individuals are in fact free to determine whether to participate in a government program or not. The Secretary fashioned a program that was true to Congress's intent, as reflected in 1008 and in the statements of legislators and the conference committee report, that this program, to have integrity, must in fact be a preventive services preconceptional program. I thank the Court.
William H. Rehnquist: Thank you, General Starr. The case is submitted.