Rehnquist's Road to Serfdom: The Ominous Message of -Rust v. Sullivan-

Americans have a profound ambivalence about interdependence and reliance on government. Our deepest national myths celebrate self-reliance, yet most of us are more collectively reliant than our mythology admits. We disguise our dependence and rationalize our ambivalence through a two-class system of social entitlement. Under this system, the virtuous self-reliant majority enjoys government benefits as a matter of earned right, while the unworthy minority, the charity cases, must endure the indignities of the dole.

From time to time, a Supreme Court case provides a prism that reveals the distortions in the conventional image. Last May's decision in Rust v. Sullivan was such a case. While its text reaffirmed the myth, in the context of abortion and access to health care, its subtext reveals complex interconnections between access and rights, autonomy and dependence.

The Rust opinion affirmed the legality of a Reagan-era Department of Health and Human Services regulation barring all discussion of abortion in federally funded family planning clinics, which serve mainly the poor. Rejecting several challenges to this gag rule, Chief Justice William Rehnquist held for a 5-4 majority that the 1988 regulation forbidding discussions of abortion was consistent with the purposes of Title X of the Public Health Services Act of 1971, which finances such clinics. Turning to the constitutional claims of the case, the Chief Justice held that by enforcing the gag rule, the "government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized." That these purposes might be limited, and might severely constrain the choices of the clinic's clients, did not matter. In effect, poor people who depend on publicly financed clinics have fewer rights than those who do not.

Congressional reaction to Rust was swift. Majorities in both houses voted to reject the Court s conclusion that Congress had meant to authorize a gag rule. Congress also concluded that the rule would jeopardize the health of many women and would unduly constrain medical practice. But the attempt to reverse Rust and rein in the Department of Health and Human Services (HHS) failed. President Bush vetoed the legislation and an override attempt in the House fell twelve votes short. Thus, despite disapproval by overwhelming majorities in both houses of Congress, this gag rule stands.

Rust and the gag rule have far-reaching effects, for the case implicates not just abortion rights but also freedom of speech, access to health care, physician authority, the rights of the poor, and the balance of power between Congress and the President. It is a window into our nation's uneasy and even perverse relationship with its own welfare state. Rust is about what is public and what is private, what is a gratuity and what is earned. It is about the power of government to condition gratuities in ways that would not be countenanced if those gratuities were redefined as rights. It is about the pervasiveness of our dependence on government, and the depth of our fear of that dependency. And it is about the powerful but incoherent distinctions that hide that dependency even from ourselves.

Rusted Rights
Purely as constitutional doctrine, Rust is troubling enough. In Rust, five members of the Court were willing to sacrifice freedom of expression to the formalistic claim that when government pays for a service it can dictate what is said in the course of that service. Furthermore, in deciding Rust, the Court took another step toward unraveling Roe v. Wade. As all who have followed that case and its progeny know, the Court has long insisted that a woman's right to be free of government interference in deciding whether to have an abortion does not imply a right to have government subsidize that procedure. But Rust marks the first time that five justices of the Court have countenanced government's attempt to deprive pregnant women of factually correct and medically necessary information about abortion.

In undermining abortion and free speech rights, Rust relies upon a simple, but faulty, premise. According to Chief Justice Rehnquist, the government is not constricting rights even when it limits what may be discussed in federally funded clinics. In fact, he insists, the government is actually expanding the choices available to poor pregnant women by providing them with federally subsidized clinics that offer some counseling and medical advice. That not every procedure legally available can be discussed in these clinics does not, according to Rehnquist, change the fact that clients receive more, not less, than they would have received in the absence of the program. Although a poor diabetic may never learn that abortion may be advisable in her case, this, says Rehnquist, is a problem of poverty and ill health, not of the administration's rule. After all, she had no right to a clinic in the first place.

Rehnquist's logic proceeds from the premise that if government can choose not to give at all, it can surely choose to give half a loaf, and the recipient is none the worse off. In fact, Rehnquist implies that the patient should assume that her doctor might withhold information relevant to her medical condition. He writes: "Nor is the doctor-patient relationship ... sufficiently all-encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice. ... [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."

In his dissent, Justice Harry A. Blackmun, Jr. (joined by Justices Thurgood Marshall and John Paul Stevens) provides a different vision of the doctor-patient relationship, one in which the patient "has every reason to expect, as do we all, that her physician will not withhold relevant information regarding the very purpose of her visit." Under this view, the gag rule's effects are pernicious. Having just been given a physical examination and a counseling session without being told of the abortion option, the patient might well believe that she has no particular need to consider terminating her pregnancy. This belief might lull her into failing to seek the "advice... beyond the scope of the program" which Rehnquist assures us is available.

Gratuitous Distinctions
Restricting free speech by mandating incomplete or misleading medical information is, however, only the most visible danger posed by Rust. More ominously, the Rehnquist Court's view of the doctor-patient relationship is a microcosm of its vision of the individual's relation to the state. The Court asserts that the laissez-faire state is the norm and a citizen's most fundamental right vis-a-vis the state is the right to be left alone. To the Court, virtually every government service is gratuitous, even those that are critical to human welfare and affect constitutionally protected activities. In doling out gratuities, government may impose conditions even on speech.

Under this view, Rust is a cautionary tale: those who take from government take only that which government chooses to provide. If a service is limited or burdened with conditions, it is still, according to Rust, more than the recipient has any right to expect. In short, citizens dependent upon government cannot be free. The price of the welfare state is individual freedom. Only what is private is secure.

* * *

But if this is Rust's reality, can the warning in fact be heeded? Could the women dependent on federally funded clinics be entirely self-reliant if they earned more money? Contrasting the Court's normative image of the state to the reality of America in the 1990s, it is fair to say that none of us is entirely self-sufficient. Like the indigent clients of Title X clinics, we are all recipients of government subsidies. This is most pointedly -- though by no means exclusively -- the case with respect to health care. It is an American truism that health care is provided largely through the private sector. Unlike every other industrialized nation (except South Africa), we lack universal health insurance. This is understood to mean that our health care system is not dependent upon government support. President Bush lauded this supposed freedom from dependency on government and its enhancement of individual choice last February when he called for incremental reform rather than nationalization of health care insurance.

But President Bush's insistence that our present health care system is private is clearly wrong. The most obvious proof is Medicare, the source of health benefits for thirty-three million Americans. Like Social Security retirement, Medicare is propagandized as an insurance system, and its recipients are dignified with the title "beneficiaries," suggesting an image of purchase in the free marketplace. The reality is that Medicare is a public welfare program, financed by a payroll tax, and subsidized by general revenues. Approximately 20 percent of the Social Security payroll tax collected from working men and women is transferred to those eligible for Medicare. The eligible include some who have never made any contribution to the Medicare Trust fund, as well as many who made relatively insignificant contributions in the later years of their working lives.

Nor are the elderly the only recipients of governmental health subsidies. The Internal Revenue Code confers this status on most of the rest of us. The code, in ways both intricate and, often, nearly invisible, subsidizes those of us who would never describe ourselves as dependent upon government largesse.

Seventy-six percent of the population receives health benefits through so-called private insurance, and the vast bulk of this is provided through employment-based group health insurance plans. The premiums for such plans are, in large measure, paid by employers as a part of employee compensation. The federal government subsidizes this payment by not treating it as income. The resulting loss of revenue is staggering. The 1992 budget of the United States estimates the loss at $33 billion. Nothing in logic or in the Constitution requires this treatment.

From the individual's perspective, if one assumes that the employer's share of a typical health insurance package is $2,000 per year, then, without the tax break, an employee who pays a marginal tax rate of 28 percent would owe $560 in taxes as a result of receiving the insurance. The fact that the employee does not have to pay those taxes means that he or she is $560 richer, while the government is $560 poorer. As a result, the government must either cut programs, raise the money elsewhere, or add the $560 to the national debt. The health care tax credits and deductions which the Bush administration has proposed in order to expand access to this "private" system will add billions to that public debt.

There are many examples of pervasive government dependency outside the health care system as well. The home mortgage interest deduction exempts from taxation the dollars spent to pay the interest charges on home mortgages. Its rationale is political rather than logical. If the deduction were suddenly abolished, many American homeowners could not afford to make their payments and to pay tax on the interest dollars as well. If they lost the tax break, they would lose the house.

Other examples of such government "gratuities" could be given, but they seemingly take us far afield from Rust v. Sullivan. Rust is about the funding and regulation of Title X family planning clinics. Medicare is a form of social insurance; the treatment of home mortgage interest reflects tax policy. But the differences among these programs amount to bookkeeping, not substance. The tax-free health benefits of employees with work-related health insurance and the tax break for home mortgage interest are, in essence, the Title X funds of the middle class.

* * *

Here, then, is the deeper threat of Rust. Although Congress endeavored to overturn the gag rule, the legislators did not clarify the limits of the government's power to impose such constraints. Congress did not say that government grants may never be coupled with gag rules, either in connection with Title X clinics or in connection with other funded activities. The Court, by contrast, has stated explicitly that such restrictions may be permissible. Given the pervasiveness of governmental gratuities, the logical implications of Rust are far-reaching indeed.

For example, hospitals, which already bear significant obligations under the Medicare program, might be told that if they "choose" to accept Medicare funding, they subject themselves to new conditions. They might be required to test all patients, even outpatients, for HIV infection. Similarly, hospitals might be required to insist on consent to organ donation as a condition of admission. Or, moving closer to Rust, hospitals might be barred from performing or even mentioning abortions. Following Rust, the Court would likely uphold such policies, reasoning that the hospital does not have to accept Medicare funding. If a hospital decides to take government funds, it must take and spend them in the way the government requires. Indeed, just such reasoning was accepted by the Court in 1989, in Webster v. Reproductive Health Services, when it upheld Missouri's ban on even privately funded abortions in all public facilities. In language similar to that employed in Rust, Rehnquist argued that "Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the state had chosen not to operate any hospitals at all." Similar reasoning could well apply to Medicare. After all, Medicare's refusal to subsidize hospitals performing abortions would leave pregnant women no worse off than if Medicare did not exist.

In Rust, Rehnquist noted that the gag rule left clinics free to provide abortion counseling as long as they completely segregated that service from those services receiving the federal subsidy. Therefore, Rehnquist argued, the gag rule conditioned only the counseling directly funded by Title X, not a family planning clinic's other activities.

But that illusory distinction cannot explain Webster. There the Court found that Missouri could ban abortions in facilities receiving public support even if the facilities received absolutely no state subsidy for abortions. In other words, Missouri conditioned more than the particular subsidized service. It conditioned other acts of the hospitals, as well.

Given this reasoning, what might occur if Congress were moved to redefine the goals of Medicare, or if an agency of a conservative administration were to reinterpret Congressional intent in narrow and burdensome ways? Congress -- or HHS -- could, by legislation or regulation, redefine Medicare's purpose as subsidizing the financial viability of hospitals with pro-childbirth policies. With this reformulation of Medicare, the government could easily deny subsidies to hospitals that perform even privately funded abortions. As a result, few if any general hospitals would perform abortions -- which is in fact the present situation in Missouri.

The threat of Rust also extends to non-medical subsidies. The home mortgage deduction could be redefined as a subsidy of family values, enabling Americans to own homes where they can rear their children. Consistent with this goal, the subsidy would be unavailable to unmarried parents or those without children.

These examples seem, we suspect, farfetched -- but they flow directly from the reasoning in Rust. While attaching onerous conditions to the "earned" social insurance of the middle class seems unlikely, this has nothing to do with the logic of Rust and everything to do with its unarticulated premises. The logic of Rust places all who accept government subsidies -- that is, all American citizens -- at risk. Consistent with Rust, we could all be required to give up our subsidies or to accept conditions attaching to them which directly constrain our freedoms of speech, choice, and action.

Another Word for Nothing Left to Lose
If most of us are safe from the threats that rumble through the Rust opinion, our safety reflects an ideological rather than a logical distinction, and the security of social class rather than citizenship. It stems not from any substantive difference between the protected and the unprotected, but from a critical and deceptive difference in labels.

For at least half a century, we have imposed a powerful but artificial dichotomy on a substantial portion of government subsidies. We label some subsidies -- but only some -- "earned." This label carries with it a connotation of right rather than privilege, of entitlement rather than charity, of purchase and not gratuity. Rust reinforces this dichotomy; it expands the government's power to condition the scope of a service that the recipients presumably have not earned. What might happen, however, if the federal government proposed new and restrictive conditions on the earned side of the benefit dichotomy, as, for example, on Social Security retirement? Given that Congress can legally disband Social Security altogether, would we readily conclude that in conditioning it Congress was still giving more and not less? One suspects that the outcry would be louder than the response to Rust, and would involve a more affluent and far more politically influential portion of the electorate. Furthermore, the rhetoric of that outcry would, in large measure, be the rhetoric of earned right.

It is no accident that Social Security, Medicare, and the tax code employ terminology quite different from that used in connection with programs like Title X. The vocabulary of social insurance, to use the examples of Social Security and Medicare, animates the ideology of earned right. Social Security recipients are portrayed as contributors who, when they become beneficiaries, are merely taking out of the system monies which, in their earlier years, they put in.

Actuarial evidence that many recipients receive their contributions, plus interest, six times over, and more, has done nothing to undermine the ethos of earned right. Very different terminology would be applied to a woman who earned an income and paid taxes over many years, was abandoned by her husband with several small children in her care, and applied for AFDC. No one is likely to argue that she is merely taking out, in a time of need, part of what she put by in happier times. Logic would support this description, but the rhetoric of earned right is apt to label her a welfare cheat.

It is the rhetorical dichotomy between earned rights and government handouts that serves to protect most of us from the implications of Rust. There is no reason why Congress could not condition the subsidies of the middle class in ways similar to the constraints in Rust. Nor, after Rust, is there signficant protection from an administration's use of broad, ambiguous grants of power to condition middle class benefits. But if most of us are not worried -- if the prospect seems remote -- that in itself is telling, and the tale it tells bears examination.

Why, after all, has this false dichotomy come to be? What function does it serve to sort government subsidies into two mutually exclusive categories, and to attach such significance to the distinction?

The dichotomy, it seems to us, serves more than one function. First, it separates the worthy from the unworthy. In a society that purports to value and reward individual effort, it becomes important to segregate and to stigmatize benefits that are not deemed the result of effort. So, some benefits, such as subsidies for retirement or medical care for the aged, are described as a mere return of earlier contributions. That this claim cannot be defended in accounting terms is ignored. The benefit seems earned, so it seems right.

By contrast, recipients of gratuities are entered on the "not-earning" side of the ledger. This critical classification reinforces the stereotype of the promiscuous, irresponsible drone, who bears children she cannot afford and contributes nothing to society. Government may, out of compassion, provide something for this woman and her children, but it is seen as a gift neither earned nor deserved.

This familiar explanation of the rhetoric of earned right separates the deserving from the undeserving. But the rhetoric has a more subtle function as well. This artificial dichotomy insulates all of us from a recognition of the depth of our own dependence on government and the necessity of the welfare state. In truth, we depend on government to finance our homes, to underwrite our health care, to educate our children, to provide for our support in our later years. But we do not conceptualize this as dependence on government. We perceive many subsidies that government provides either as private (such as nontaxable employer provided health insurance) or as earned (such as Social Security retirement). We presume we have purchased these rights with our labor -- either current or past -- and we conduct ourselves as owners, as free persons, not government clients.

On a purely pragmatic level, if we ignore its illogical nature and its harsh treatment of the poor, this system almost works. In good times, at least, most Americans have paying jobs. They participate in the earned right sphere of government distribution. In this sphere, they may have limited material wealth, but they have the dignity and satisfaction of self-reliance. They conform to a cherished, if fraudulent, national image of autonomy. That one can accept Social Security retirement benefits and Medicare, perform no labor, and consider oneself autonomous is surely a tribute to the rhetorical power of earned right.

The ideology of earned right thus allows us to have a welfare state while denying that we have one. But by obtaining many of the necessary benefits of a welfare state without acknowledging its existence, we avoid having to confront and resolve the ultimate dilemma Rust poses: how can individual freedom be maintained if inter-dependency is acknowledged? Rust warns that the two cannot co-exist; the moral of Rust is that we must avoid dependency if we are to maintain our freedom.

But in the end, the authoritarianism implicitly sanctioned in Rust is not the inevitable concommitant of dependency. It is rather the byproduct of the Court's unreal embrace of laissez faire. Pretending, as the Court does in Rust, that only those dependent on government face threats to their freedom obscures the universality of the conflict. The problems of freedom and interdependency run deeper and wider than the Rust Court or current political debate dares acknowledge. In fact, whether we call our benefits earned or unearned -- whether we rely on AFDC or the subsidies in the Internal Revenue Code -- we all depend on government as surely as do the clients of Title X. None of us can escape to Justice Rehnquist's idyllic state of nature. If freedom only resides there, as the Rust Court suggests, then none of us can be free.

Rust insists that freedom and dependency are joined in an inverse relationship, where one can only increase as the other decreases. That freedom and dependence are related is clear enough -- but the Rust Court has the relationship backwards. Interdependence need not threaten freedom; it may secure it. Indeed, it is those government programs with the largest number of recipients -- those that come closest to being universal -- which are most strongly supported by public opinion and most fiercely defended from government meddling. Though the courts and the Congress are free under Rust to treat citizens callously and cavalierly even in broad middle class programs, in practice the broader the program, the lower the risk.

The moral of Rust, then, may be very different from what its author intended. The path to safeguarding our freedom seems to lead toward a greater recognition -- indeed, a welcoming -- of interdependence as freedom's ally. The task Rust sets is not to wall ourselves off in a bunker of private right, but to clear away the ideological obstacles that portray government subsidies as a threat to free choice or an infringement to liberty. Rust suggests a chilling paradox -- that all of us need government and none of us is safe from it. Only when we confront that paradox can we develop a real solution to the challenge of interdependence one that accepts neither the unrestrained authority nor the unreal libertarianism that form the two poles of Rust.

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