Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, March 20, 1990 TAG: 9003202924
SECTION: NATIONAL/INTERNATIONAL PAGE: A/8 EDITION: EVENING
SOURCE: Associated Press
DATELINE: BOSTON LENGTH: Medium
The 1st U.S. Circuit Court of Appeals said in a ruling released late Monday that the speech at issue involves telling a woman about an activity - abortion - "in which she has a constitutional right to engage."
Massachusetts Attorney General James Shannon and attorneys for various family planning groups challenged the U.S. Department of Health and Human Services for enforcing the family planning regulations in 1988.
The regulations prohibited people in medical facilities that received money under the federal Title X program from counseling women about abortion and from referring pregnant women to any facilities that perform abortion.
The court said in its 4-1 decision that the secretary of Health and Human Services has tried to use funding "to limit public discussion on abortion rights. It is by now black letter law that such a restriction is a violation of the First Amendment."
Lucy Eddinger, a spokeswoman for the HHS Office of Population Affairs, said this morning that the federal government had not had time to review the case. "We understand there has been a decision, but no one has seen that decision, so we won't have a comment until we have read it," Eddinger said.
The ruling is binding only in the 1st Circuit, which has jurisdiction over Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. Other circuits can be expected to be influenced by it, however.
The appeals court affirmed a decision by U.S. District Court Judge Walter Skinner.
In May, three judges of the 1st Circuit ruled in favor of the state, upholding the injunction that blocked the ban on referrals from taking effect.
But when the U.S. Supreme Court handed down a decision in the Missouri case of Webster vs. Reproductive Health Services two months later, the federal government asked the 1st Circuit to rehear the arguments.
The Webster decision gave states broader discretion to set limits on abortion. It upheld a Missouri law that, among other things, banned public employees from counseling women about abortions.
Judge Juan Torruella, who dissented in Monday's ruling, cited the Webster decision.
"In my opinion, the secretary has merely refused to fund an activity which the government is not constitutionally required to support, without imposing legal obstacles to a citizen's choice of action in a protected area," Torruella said.
Ruling in favor of the state were Chief Judge Levin Campbell and Judges Hugh Bownes, Stephen Breyer and Bruce Selya.
by CNB