Rust v. Sullivan - Oral Argument - October 30, 1990

Rust v. Sullivan

Media for Rust v. Sullivan

Audio Transcription for Opinion Announcement - May 23, 1991 in Rust v. Sullivan

Audio Transcription for Oral Argument - October 30, 1990 in Rust v. Sullivan

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.