Nation

By Jill Smolowe

SUPREME COURT Gagging the Clinics The Justices did not disturb the constitutional right to an abortion but made it illegal to discuss the procedure in federally funded centers "Government . . . may validly choose to fund childbirth over abortion." -- CHIEF JUSTICE WILLIAM REHNQUIST, THE MAJORITY OPINION "This is a course nearly as noxious as overruling Roe directly . . ." -- JUSTICE HARRY BLACKMUN, IN DISSENT

When politicians, both Democrats and Republicans, latched on to the abortion issue as the sort of emotional question that extracts votes and campaign funds from true believers, they unleashed a venomous public argument. That debate heated up again last week in the wake of a highly divisive Supreme Court decision. The Justices upheld a federal regulation, conceived by the Reagan Administration three years ago to assuage conservative constituents, that bans discussion of abortion in federally funded health clinics.

The court's ruling in Rust v. Sullivan made little medical or intellectual or moral sense. It does not forbid women to seek abortion counseling and referrals. But it narrows -- and in some cases may even eliminate -- access to such services for many poor and low-income women who cannot afford private medical advice, thereby placing informed choice beyond their reach. "For these women," Justice Harry Blackmun warned in a harsh dissenting opinion, "the government will have obliterated the freedom to choose as surely as if it had banned abortions outright." The court's action set pro- and anti- abortion advocates at one another again, arguing the merits of the decision itself and predicting fearfully or hopefully that the court will next go the full distance and outlaw abortion altogether.

The court's 5-to-4 vote forces the thousands of clinics that get aid from Washington under Title X of the Public Health Service Act to make a stark choice: either halt their abortion-counseling and -referral services or forgo federal funds, at a time when most clinics are strapped for cash. Until last week, the 1988 regulations -- which bar such clinics from offering either spoken instruction or printed materials that "encourage, promote or advocate abortion" -- were not enforced, pending the outcome of legal challenges.

While the ruling does not directly threaten the fundamental right to an abortion granted under the 1973 Roe v. Wade decision, the court divided over the practical consequences for the 4 million women who rely on Title X ) funding. In his majority opinion, Chief Justice William Rehnquist contended that the ban on abortion counseling leaves a woman "in no different position than she would have been if the government had not enacted Title X." Blackmun, who had penned the Roe decision, differed sharply, pointing to the 1988 regulation that requires clinic staff members to answer all abortion inquiries with the words "The project does not consider abortion an appropriate method of family planning." He warned that a patient will construe this message "as professional advice to forgo her right to obtain an abortion."

The vote that stirred the most notice was the tie-breaking yea cast by David Souter, the court's newest Justice. Pro-choice advocates had earlier been encouraged by Souter's sharp questioning of U.S. Solicitor General Kenneth Starr during oral arguments in the Rust case last fall. "The physician cannot perform a normal professional responsibility," Souter had said. "You are telling us ((that the government)) in effect may preclude professional speech." Yet last week Souter concurred in a majority opinion based on that very reasoning. Since the ruling did not directly address the question of a woman's right to an abortion, it does not accurately presage how Souter will tilt in any future challenge to Roe. Still, anti-abortion advocates feel they have found a friend in Souter. "We are delighted that President Bush's first appointee voted with the majority," said Douglas Johnson, of the National Right to Life Committee. Pro-choice advocates regard last week's holding in Rust as an ominous harbinger of decisions to come. "Justice Souter showed his true colors today," said Judith Lichtman, president of the Women's Legal Defense Fund, adding that the Roe ruling was in "immediate peril."

Some believe that the First Amendment may be endangered as well. Faye Wattleton, president of the Planned Parenthood Federation of America, which operates nearly 900 clinics in 49 states, called the decision to halt abortion counseling "an unimaginable blow to free speech." From Capitol Hill came rumblings that liberty of expression had been, as Democratic Congressman Ron Wyden of Oregon put it, "thrown into the trash can." But the toughest counterpunch was landed by Blackmun, who charged the court with "viewpoint- based suppression of speech."

The ruling also raised disturbing concerns about medical ethics. Alexander Sanger, president of Planned Parenthood of New York City, said the 1988 & regulations amount to "government-enforced malpractice" by violating "the most basic principles of health care: telling patients the truth, the whole truth, about their condition and their options." Within hours of the Rust decision, Sanger announced that the Planned Parenthood clinic in the South Bronx, where petitioner Dr. Irving Rust serves as medical director, will give up Title X funds and continue to advise women on their full range of options.

In practical terms, what will be the effect of the Rust decision? In the clinics, constitutional questions are reduced to basics: Where can I get an abortion? How much will it cost? "We are literally, totally, utterly gagged," says Amy Dienesch, executive director of Planned Parenthood in the Chicago area. "Women won't have help being referred to a reputable or safe provider." Moreover, clinics that choose to give up federal funds may have to cut staff and curtail hours. Warns Tom Kring of the California Regional Family Planning Council: "The cutbacks may force women seeking first-trimester abortions into waiting longer and longer," an outcome that poses greater medical risks. Some counselors fear that the people in the poor neighborhoods served by Title X clinics will misunderstand the message of the latest court ruling. Many women may conclude that all counseling services have been halted. As a result, they may stop visiting the centers and receiving preventive care -- a primary goal of Title X funding. Brenda Alston, 29, who is a patient at Rust's clinic, had a succinct response for the Justices: "No need in coming if you can't talk about the things you want to."

Another result of the decision could be the further exaggeration of a two- tiered health-care system: one that provides affluent women with the full range of options and offers poor women either skewed information or a range of services severely constrained by funding limitations. "A double standard of medical care is now not only legal," argues Sanger, "but mandatory in this country." Wattleton asserts that the congressional intent behind Title X was to "help needy women, not victimize them by subjecting them to second-class health care."

Pro-choice advocates hope that Congress will step forward and strike down the 1988 regulations. Earlier this year, Congressmen Wyden of Oregon and John Porter, an Illinois Republican, introduced legislation designed to do just that. Prospects for their bill were enhanced by the House's passage last week of a defense-spending package that would allow U.S. servicewomen to obtain abortions in overseas military hospitals at their own expense. But even if Congress did pass the Wyden-Porter bill, it would face an almost certain Bush veto and another protracted political battle that would promise to carry into the 1992 elections.

With reporting by Tom Curry/Chicago and Julie Johnson/Washington