Abortion, the 1st Amendment, and Your Money: Fresh News, Same Old Story

The Trump Administration has announced a proposed rule that would prevent federal Title X family planning money from going to abortion providers. That’s “proposed.” It’s a long road from announcement to implementation. Pro-lifers are cheering as though it’s a done deal, and abortion providers are screaming as only people who’ve been hit in the wallet can scream.

Take a breath, folks. The proposed rule is good news. It would protect taxpayers from involvement in the abortion industry. But the rule is not in place yet, and may never be. I give the President credit for getting the ball rolling (and I don’t give him credit often).

The outraged wails of abortion advocates are reminding me of the similar reaction to the Supreme Court’s 1991 Rust decision, establishing that it’s permissible for the federal government to tell family planning clinics that they can’t use taxpayer funds to perform, refer for, or counsel for abortions – since, after all, abortion is not family planning. Then, as now, abortion advocates called funding restrictions a “gag rule.” They called it a violation of freedom of speech, instead of what it is: protection of the conscience rights of people who don’t want to help pay for any aspect of abortion.

Alas, a couple of years after the Rust decision, President Clinton suspended the regulations that Rust had okayed – and ever since, abortion providers have lined up for Title X funds every budget cycle.

Back in ’91, shortly after the Rust decision, I was asked by the New Hampshire Humanities Council to write about the decision’s implications for the First Amendment. They published my essay next to one on the same topic by a representative of Planned Parenthood of Northern New England. Both essays became part of the Humanities Council’s “New Hampshire Gazette” special publication honoring the 200th anniversary of the Bill of Rights.

If the opponents of the proposed HHS rule can haul out their old talking points from a generation ago, so can I. Here’s what I wrote in 1991. It’s a little startling to see how much of it remains timely.


I recently received a letter from my congressman that said, “The Rust decision strikes a devastating blow to the First Amendment guaranteed right to free speech.”

Something peculiar is going on here. First of all, the Rust decision simply recognized that there’s a difference between family planning and abortion.

Second, the most vocal and strident critics of the Rust decision – those who counsel for or perform abortions – have not been noted in the past for their defense of free speech rights. They seem to have discovered the First Amendment once their pocketbooks were threatened.

The Bill of Rights states, “Congress shall make no law…abridging freedom of speech…” Our nation has worked with that blessed amendment for 200 years without thus far concluding that we must subsidize speech in order to avoid abridging it.

The Supreme Court’s message to agencies receiving Title 10 funds was this: Title 10 is for family planning. Abortion is not family planning. Congress is within its rights to forbid you from using a grant for purposes unrelated to the grant’s goals. If you counsel for, refer for, or perform abortions, you may do so without using Title 10 funds.

The response from the abortion industry has been: I’ll promote what I please; you should pay for that promotion; refusal to pay equals censorship.

No one wants to be perceived as an opponent of free speech. My congressman, for example, campaigned on a platform that included a no-public-funding-of-abortion plank. As soon as he heard the words “free speech,” though, he changed his tune.

Abortion providers counted on this response. Getting taxpayers to fund the abortion industry is tricky. It literally pays to disguise funding as free speech.

This is a long way from the actual provisions of Title 10, which was passed in 1970 to provide family planning services to low-income Americans. Abortion could have been included in the program originally; abortion was already legal in several states by 1970. But abortion was specifically excluded.

Ironically, in view of the response by abortion advocates, the Rust decision was no pro-life panacea. It dealt only with funding without addressing the right to life.

Even so, the decision guaranteed that the debate over the right to life will become more intense. Congress is under heavy pressure to throw Rust aside and fund abortion propaganda. Most of that pressure is being generated by a high-powered, Madison Avenue ad campaign spearheaded by $5 million from the nation’s largest abortion provider.

In that campaign, freedom of speech is a vague kind of label with no substance. It’s being used strictly to protect tax funding of the abortion industry.

I haven’t noticed any post-Rust champions of freedom of speech defending the First Amendment rights of Operation Rescue. I don’t hear them defending the First Amendment rights of pro-life counselors who try to reach women at abortion facilities. I haven’t heard them defending parents who want the right to be notified before abortions are performed on their daughters.

That last right isn’t in the First Amendment. The First Amendment wasn’t meant to be all-encompassing. It was meant to flow logically from a foundation of basic rights. Rights like parental rights. Rights, come to think of it, like the right to life.

[From “The New Hampshire Gazette: A Celebration of the Bill of Rights 1791-1991,” a project of the New Hampshire Humanities Council, made possible with funds from the National Endowment for the Humanities, the New Hampshire Bar Foundation, and services provided by the Keene Sentinel.]