Harry Blackmun

“ And for the individual woman, the deprivation of liberty by the Government is no less substantial because it affects few, rather than many. It cannot be that an otherwise unconstitutional infringement of choice is made lawful because it touches only some of the Nation's pregnant women, and not all of them.
The manipulation of the doctor/patient dialogue achieved through the Secretary's Regulations is clearly an effort "to deter a woman from making a decision that, with her physician, is hers to make." ”

“ For these women, the Government will have obliterated the freedom to choose as surely as if it had banned abortions outright. The denial of this freedom is not a consequence of poverty, but of the Government's ill-intentioned distortion of information it has chosen to provide. ”

“ It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live. ”

“ In view of the inevitable effect of the Regulations, the majority's conclusion that
[t] he difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the government had not enacted Title X, ante at 202, is insensitive and contrary to common human experience. Both the purpose and result of the challenged Regulations is to deny women the ability voluntarily to decide their procreative destiny. ”

“ It may not deny a benefit to a [p213] person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would, in effect, be penalized and inhibited. ”

“ If a client asks directly about abortion, a Title X physician or counselor is required to say, in essence, that the project does not consider abortion to be an appropriate method of family planning. § 59.8 (b) (4) . Both requirements are antithetical to [p210] the First Amendment. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) .
The Regulations pertaining to "advocacy" are even more explicitly viewpoint-based. These provide: "A Title X project may not encourage, promote or advocate abortion as a method of family planning." ”

“ It is to be noted that the Secretary has made no claim that the Regulations at issue reflect any concern for the health or welfare of Title X clients.
↑ . In the context of common law tort liability, commentators have recognized:
If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse. . . . The same is true, of course, of a physician who accepts a charity patient. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests. ”

“ In the cases at bar, the speaker's interest in the communication is both clear and vital. In addressing the family planning needs of their clients, the physicians and counselors who staff Title X projects seek to provide them with the full range of information and options regarding their health and reproductive freedom. Indeed, the legitimate expectations [p214] of the patient and the ethical responsibilities of the medical profession demand no less. ”

“ Title X projects are required to facilitate access to prenatal care and social services, including adoption services, that might be needed by the pregnant client to promote her wellbeing and that of her child, while making it abundantly clear that the project is not permitted to promote abortion by facilitating access to abortion through the referral process. ”

“ By refusing to fund those family planning projects that advocate abortion because they advocate abortion, the Government plainly has targeted a particular viewpoint. Cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989) . The majority's reliance on the fact that the Regulations pertain solely to funding decisions simply begs the question. Clearly, there are some bases upon which government may not rest its decision to fund or not to fund. ”

“ A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law . ”

“ Although her physician's words, in fact, are strictly controlled by the Government, and wholly unrelated to her particular medical situation, the Title X client will reasonably construe them as professional advice to forgo her right to obtain an abortion. As would most rational patients, many of these women will follow that perceived advice and carry their pregnancy to term, despite their needs to the contrary and despite the safety of the abortion procedure for the vast majority of them. ”

“ The majority attempts to circumvent this principle by emphasizing that Title X physicians and counselors "remain free . . . to pursue abortion-related activities when they are not acting under the auspices of the Title X project." Ante at 198. "The regulations," the majority explains, "do not in any way restrict the activities of those persons acting as private individuals." Ibid. Under the majority's reasoning, the First Amendment could be read to tolerate any governmental restriction upon an employee's speech so long as that restriction is limited to the funded workplace. ”

“ For at least a quarter-century, this Court has made clear that, even though a person has no "right" to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. ”

“ The substantial obstacles to bodily self-determination that the Regulations impose are doubly offensive because they are effected by manipulating the very words spoken by physicians and counselors to their patients. ”

“ Contrary to the majority's characterization, this is not a case in which individuals seek government aid in exercising their fundamental rights. The Fifth Amendment right asserted by petitioners is the right of a pregnant woman to be free from affirmative governmental interference in her decision. ”

“ Section 1008 of the Public Health Service Act, 84 Stat. 1508, 42 U.S.C. § 300a-6, provides simply: "None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." The majority concedes that this language "does not speak directly to the issues of counseling, referral, advocacy, or program integrity," ante at 184, and that "the legislative history is ambiguous" in this respect. Ante at 186. Consequently, the language of § 1008 easily sustains a constitutionally trouble-free interpretation. ”

“ II C Finally, it is of no small significance that the speech the Secretary would suppress is truthful information regarding constitutionally protected conduct of vital importance to the listener. One can imagine no legitimate governmental interest that might be served by suppressing such information. Concededly, the abortion debate is among the most divisive and contentious issues that our Nation has faced in recent years. ”

“ For example, the governmental interest at stake could be served by imposing rigorous bookkeeping standards to ensure financial separation or adopting content-neutral rules for the balanced dissemination of family planning and health information. ”