Justices OK Ban on Abortion Advice in U.S.-Aided Clinics : High court: Doctors at federally funded units cannot tell poor, pregnant women of medical option. The 5-4 ruling may signal start of a new majority on the issue.

The Supreme Court, in a ruling that may signal the emergence of a new anti-abortion majority, said Thursday the government may prohibit doctors in federally funded family planning clinics from telling poor, pregnant women that abortion is a medical option for them.

The 5-4 ruling in this term’s most closely watched abortion case upholds strict regulations issued during the final year of the Ronald Reagan Administration. They govern family planning clinics, which each year serve about 5 million poor women and teen-agers.

Under the rules, which had been blocked by court orders, health care workers in subsidized clinics may not advise a pregnant woman that abortion is a possibility, nor may they help these patients find a private abortion clinic. They must, however, refer pregnant women for prenatal care.

The rules had been challenged on the grounds that they were more restrictive than Congress intended and that they violated the free speech rights of doctors as well as the abortion rights of their patients.

By one vote, the high court rejected all challenges. Women may have a constitutional right to get an abortion, the justices said, but the government need not make it easier for a woman to obtain one.

New Justice David H. Souter cast the deciding fifth vote. Justice Sandra Day O’Connor, who had been seen as the swing vote on abortion, joined the three more liberal members in dissent Thursday.

On Capitol Hill, Democrats and some Republicans quickly vowed to reverse the court’s decision. Senior Democrats said they plan to push bills in the next month that will allow clinics to refer pregnant patients to private abortion facilities.

The Congressional Caucus on Women’s Issues called for quick action to abolish the rule that prohibits doctors in clinics that receive federal funds from telling pregnant women that abortion is an option. And Sen. John H. Chafee (R-R. I.) said he will seek immediate Senate approval of his bill to abolish the rule. Last year, the Senate, by a 62-36 margin, approved an amendment to overturn the strict regulations, but the full bill never came to a vote.

Souter’s vote with Chief Justice William H. Rehnquist strongly suggests that President Bush’s appointee will line up with the conservative, anti-abortion wing of the court. During his Senate hearings, Souter said that he supported a constitutional “right to privacy” but refused to comment directly on abortion.

During the October argument in the clinic case, Souter voiced skepticism about a government rule that bars doctors from telling their patients about all medical options.

But, without offering an explanation, Souter joined the opinion written by Rehnquist.

Within the court, there have been reports that Souter has been overwhelmed by the workload he faces on the court and that he is slow to decide in major cases. So far, he has written only one, noncontroversial opinion and has yet to issue a written concurrence or dissent.

But he has voted regularly with the conservative chief justice. Also joining Rehnquist’s opinion were Justices Byron R. White, Antonin Scalia and Anthony M. Kennedy, all of whom have expressed a willingness to overturn the Roe vs. Wade ruling.

Within a year or two, the newly constituted court will face a direct challenge to the 1973 Roe ruling. In January, Utah lawmakers enacted a virtual ban on abortion. State officials said they want to use the law as a test case to force the justices to reconsider the ruling giving women a constitutional right to end a pregnancy.

Anti-abortion advocates hailed the ruling as a “landmark” and praised the court for preventing the subsidized clinics from using taxpayer’s money to support abortion.

Because many Americans fervently oppose abortion, “this justifies a wall of separation between federally funded programs and the promotion of abortion,” said Douglas Johnson, legislative director of the National Right to Life Committee.

Family planning directors reacted angrily to the ruling.

“This is basically ordering us to commit malpractice,” said Thomas Kring, executive director of the Los Angeles Regional Family Planning Council. “The government is saying we can’t even talk about abortion and that is virtually criminal behavior toward low-income women.”

The 73 family planning clinics in Los Angeles County get less than half of their funds from the federal government, but they will be required to fully comply with the rules, he said. The family planning clinic that lost its challenge to a federal ban on abortion counseling said Thursday that it will quit taking federal money rather than keep silent about women’s legal options. Some other clinics around the country followed suit.

Jeannine Michael, director of Planned Parenthood’s Bronx clinic, said that losing federal funds will cost the clinic about $450,000 a year, or 27% of its budget. She said she hopes that private donations can make up the difference.

Jill June, head of the Iowa’s Planned Parenthood affiliate, said the agency will reject $500,000 in federal funding rather than halt abortion counseling at its 17 clinics.

Pam Dooley, executive director of Planned Parenthood of Detroit, said she will drop $76,000 in federal funds, about 6% of the organization’s budget. The director of Planned Parenthood of Central Washington said that the group will not stop counseling even if it means the loss of federal funds.

Meanwhile, abortion rights activists expressed outrage with the court and promised to take the fight to Congress. “Today, this nation saw the true impact of the realignment of the Supreme Court by Presidents Reagan and Bush,” said Kate Michelman, executive director of the National Abortion Rights Action League.

Rehnquist’s opinion may also prove significant in the controversy over obscene art and the National Endowment for the Arts.

Some artists who have received NEA funding have contended that the government cannot restrict their free speech rights by prohibiting them from producing artwork that officials deem offensive.

Attorneys representing family planning clinics challenged the federal regulations with a similar argument: The First Amendment does not permit the government to insist that its grantees favor an anti-abortion position.

But Rehnquist flatly rejected those arguments.

“When the government appropriates public funds to establish a program it is entitled to define the limits of that program,” he wrote. “In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”

In separate dissents, Justices Harry A. Blackmun and John Paul Stevens said that the ruling marks the first time the court has given government broad powers to “censor the speech” of all those who receive public funds. The federal regulations are “doubly offensive” because they are “manipulating the very words spoken by physicians,” Blackmun said.

In stark terms, Thursday’s ruling demonstrated the impact of the retirement of liberal Justice William J. Brennan and his replacement by Souter.

Two years ago, Brennan wrote a 5-4 ruling declaring that radical protesters have a free speech right to burn an American flag in violation of state and federal laws. Now, the court has ruled, 5 to 4, that doctors do not have a free speech right to tell patients of all their medical options.

Congress in 1970 created the subsidized family planning clinics as Title X of the Public Health Services Act. “None of the funds . . . shall be used in programs where abortion is a method of family planning,” the law said. In 1988, Reagan Administration officials ordered that Title X regulations be tightened to stop “the elimination of unborn children by abortion.”

In recent years, Congress has appropriated $200 million a year to support more than 4,000 clinics. In poor communities, the clinics are the first stop for women and teen-age girls who fear they are pregnant. Some are located in hospitals, while others operate as neighborhood facilities. In California, the state also funds the clinics, but does not attach similar restrictions.

Rehnquist’s opinion in the case (Rust vs. Sullivan, 89-1391) sets forth three conclusions. First, the regulations “reflect a plausible construction” of the law and therefore are acceptable.

Second, the regulations do not violate the free speech rights of doctors because they “do not significantly impinge upon the doctor-patient relationship. . . . A doctor’s silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her,” he wrote.

And third, the rules do not infringe on the woman’s right to abortion. “The government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion,” Rehnquist concluded.