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"Let Chief Justice John Roberts Explain Why the Global Gag Rule Is Unconstitutional" - Slate
http://www.slate.com/blogs/xx_factor/2017/01/27/the_global_gag_rule_is_unconstitutional_and_john_roberts_can_explain_why.htmlBy Mark Joseph Stern
On Monday, Donald Trump began his formal assault on women’s rights by reinstating and massively expanding the “global gag rule,” an anti-abortion policy created by President Ronald Reagan and implemented by every Republican president since. The original rule prohibited all recipients of international family planning funds from providing abortion care, referring patients to abortion providers, or giving women information about abortions. Trump’s immense expansion of the rule gags all recipients of global health funding, which will effectively sabotage a huge number of health programs in the developing world, particularly those that treat HIV/AIDS.
Unfortunately for Trump, a significant portion of this rule—which President Barack Obama suspended throughout his two terms—is plainly unconstitutional under a landmark 2013 Supreme Court decision. While government may prohibit the use of federal funds for abortion-related medical treatment and counseling, it may not bar recipients of these funds from using other money to provide abortion-related referrals and information. Such censorship qualifies as an “unconstitutional condition” that runs afoul of the First Amendment. Nongovernmental organizations subject to the gag should promptly ask the courts to remove this burden on their free speech rights.
Before 2013, the global gag rule was generally understood to be lawful under Rust v. Sullivan, a closely divided 1991 Supreme Court decision. Rust involved a challenge to a condition placed on organizations that received federal funds through Title X of the Public Health Service Act. Title X programs, Congress insisted, must not advocate for abortion as a method of family planning. This restriction undoubtedly chilled the speech of those doctors participating in Title X programs who wished to inform patients about the possibility of abortion. Title X grantees sued, alleging a violation of the First Amendment.
...
Because the global gag rule was suspended when the court handed down its 2013 decision, nobody has yet had the opportunity to challenge its constitutionality in light of that crucial clarification of Rust. That should change soon. The rule is now in effect, and organizations that find their speech suppressed should sue to block it. Trump has no constitutional authority to censor doctors who want to discuss abortion outside of U.S.-funded programs. He may be able to stifle plenty of government speech, but the health organizations he hopes to silence remain within the ambit of the First Amendment.
On Monday, Donald Trump began his formal assault on women’s rights by reinstating and massively expanding the “global gag rule,” an anti-abortion policy created by President Ronald Reagan and implemented by every Republican president since. The original rule prohibited all recipients of international family planning funds from providing abortion care, referring patients to abortion providers, or giving women information about abortions. Trump’s immense expansion of the rule gags all recipients of global health funding, which will effectively sabotage a huge number of health programs in the developing world, particularly those that treat HIV/AIDS.
Unfortunately for Trump, a significant portion of this rule—which President Barack Obama suspended throughout his two terms—is plainly unconstitutional under a landmark 2013 Supreme Court decision. While government may prohibit the use of federal funds for abortion-related medical treatment and counseling, it may not bar recipients of these funds from using other money to provide abortion-related referrals and information. Such censorship qualifies as an “unconstitutional condition” that runs afoul of the First Amendment. Nongovernmental organizations subject to the gag should promptly ask the courts to remove this burden on their free speech rights.
Before 2013, the global gag rule was generally understood to be lawful under Rust v. Sullivan, a closely divided 1991 Supreme Court decision. Rust involved a challenge to a condition placed on organizations that received federal funds through Title X of the Public Health Service Act. Title X programs, Congress insisted, must not advocate for abortion as a method of family planning. This restriction undoubtedly chilled the speech of those doctors participating in Title X programs who wished to inform patients about the possibility of abortion. Title X grantees sued, alleging a violation of the First Amendment.
...
Because the global gag rule was suspended when the court handed down its 2013 decision, nobody has yet had the opportunity to challenge its constitutionality in light of that crucial clarification of Rust. That should change soon. The rule is now in effect, and organizations that find their speech suppressed should sue to block it. Trump has no constitutional authority to censor doctors who want to discuss abortion outside of U.S.-funded programs. He may be able to stifle plenty of government speech, but the health organizations he hopes to silence remain within the ambit of the First Amendment.
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