||Congress enacted Title X of the Public Health Service Act in 1970 to provide federal funding to clinics, etc., for family planning services. The Act and supporting regulations prohibit funding recipients from discussing abortion with their patients. Funding recipients challenged the Act on several grounds, including that the Act violated their First Amendment rights by impermissibly imposing viewpoint-based conditions on government subsidies. The trial court and the Second Circuit Court of Appeals rejected this challenge.
A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe that right. Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983). On the other hand, the First Amendment generally has been interpeted to prohibit the government from restricting expression based on its content. Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).
The Court concluded that the Act represented a choice of funding options and not viewpoint-based discrimination. The Court also noted that Title X did not prohibit recipients from ever speaking about abortion; rather, the Act limits the recipients' free speech rights only during the time that they are working on a Title X project. The dissent argued that any regulation that conditions funding on certain types of speech is necessarily content-based and impermissible.
Rehnquist, C.J. for the Court: "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. 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 another."