THE ELUSIVE DISTINCTION BETWEEN WITHHOLDING A SUBSIDY AND EXACTING A PENALTY: The Bush Policies On Abortion And Faith-based Social Services

By MICHAEL C. DORF

Wednesday, Feb. 07, 2001

In his first week in office, President Bush signed an executive order barring international organizations that perform abortions or provide information about abortions from receiving federal money. The order — which reinstates a Reagan-era policy rescinded by President Clinton — does not merely prohibit federal funds from being spent on abortions. (Such spending is already prohibited by statute, and has been for nearly 30 years.) The Bush executive order goes much further, to prohibit any federal aid to international family planning organizations that use other money for abortion or abortion information.

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The Bush administration and its supporters defend the policy on the grounds that money is fungible. Even if Planned Parenthood does not spend federal dollars directly on abortion, it can still free up money to be spent on abortion by using federal money for other purposes (such as contraception, AIDS prevention, or prenatal checkups). Thus, the argument goes, the policy is necessary to avoid indirectly subsidizing abortions; funds that are earmarked for abortion and other uses can never really be kept distinct, for one can always substitute for the other.

Meanwhile, barely a week after signing the executive order on abortion funding, President Bush proposed legislation that would enable faith-based social service organizations to receive federal funds. Would this proposal violate the Establishment Clause, by subsidizing religion? The Bush Administration says no. Why? Because the plan would require that funding for the provision of social services be kept distinct from funding for worship and other religious functions.

There is an obvious inconsistency here — one that President Bush and his administration have yet to address.

The Long History of the Subsidy/Penalty Distinction

If there is no subsidy for religion when a church organization provides social services that are distinct from its religious services, why is there a subsidy for abortion when an organization provides health services that are distinct from its abortion services?

When asked this question, Bush spokesman Ari Fleischer replied, "I think we explored that issue last week, you know, why the President did that. His reasons were clear." But "that issue" — meaning the issue of the inconsistency, has yet to be explored.

We've heard the President's reasons for the sweep of the abortion-funding ban, and his reasons for proposing federal funding for faith-based organizations. But we have not heard how he reconciles the two.

It's not going to be easy. The question of subsidies has vexed legislators and courts for a very long time, and there is no simple solution.

Thomas Jefferson famously stated that to "compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." It seems to follow from this that forcing someone to pay for actions with which he violently disagrees would be sinful and tyrannical, too.

Pacifists object to the use of their tax dollars for military funding; environmentalists, for funding logging in national forests; and isolationists, for funding foreign aid. Yet as a practical matter the government could not function if every taxpayer exercised veto power over how his share of the government budget were spent. What then becomes of Jefferson's dictum?

Like Jefferson himself, the courts have felt the pull of the Jeffersonian principle most strongly in cases involving expression. The principle finds its most direct legal application in a line of labor law decisions.

In many states, unions are authorized to negotiate on behalf of all the workers within their collective bargaining unit, even those who are not union members. These non-union members are then required to pay the union for its bargaining services — despite the fact that they never joined. However, beginning with the 1977 decision in Abood v. Detroit Board of Education, the Supreme Court has prohibited the unions from charging non-members for "ideological" activities not directly related to collective bargaining.

The Abood principle has its limits, however. Last year, in Board of Regents v. Southworth, the Supreme Court ruled that students attending a state university do not have a right to a refund of the portion of their student activities fund that supports organizations espousing viewpoints with which they disagree. The Court reasoned that the very purpose of a university is to foster a diversity of viewpoints — whether in the classroom, through faculty scholarship, or through extra-curricular activities.

Arts Funding: A Recent Example of the Subsidy/Penalty Debate

In recent years, the Jeffersonian principle has also come into play in controversies involving the arts. For example, Congress has prohibited the National Endowment for the Arts from funding "indecent art." And in 1999, New York Mayor Rudolph Guiliani attempted to withhold already-allocated funds from the Brooklyn Museum and to evict the museum from its city-owned building in retaliation for the museum's "Sensation" exhibit, which the Mayor and others found offensive.

Both of these cases led to lawsuits. In 1998, in NEA v. Finley, the Supreme Court narrowly construed the indecency prohibition so as to protect the countervailing free speech interests of artists, but then upheld it. In the Brooklyn Museum case, a federal judge enjoined the Mayor from punishing the museum.

But in what sense is the withholding of funds a punishment? Once the government decides to fund an expressive activity like a museum or an artist, must it fund that activity forever?

One possibility would be to apply a rule of viewpoint-neutrality to government funding of speech. Under such a rule, the government need not fund any expression, but if it chooses to do so, it cannot favor one viewpoint over another. In the NEA case, for example, it was argued that criteria of artistic merit were a permissible basis for awarding grants, but political criteria were not.

Yet this line is unworkable. For one thing, some of the best, most important art is political — and controversial. In addition, the government should be able to discriminate on the basis of viewpoint in funding speech. If the government hires an ad agency to develop a campaign urging teenagers to "say no to tobacco, alcohol, and other drugs," it does not thereby obligate itself to hire a competing agency to urge teens to "say yes" to the very same substances.

The Supreme Court's Holding on "Subsidizing" Abortion Counseling

It was the absurdity of just this sort of symmetry principle that led the Supreme Court to uphold the abortion "gag order" in the 1991 case of Rust v. Sullivan.

In Rust the Supreme Court upheld federal regulations that denied funding to entities that performed abortions or provided abortion referrals. Even if an organization paid for abortions and abortion counseling with private funds, it was not eligible for federal money unless the abortion-related activity occurred in "physically and financially separate" facilities.

The separation requirement upheld in Rust was motivated by the government's worry about the fungibility of money — that is, the way money received for one purpose frees up other money to be spent elsewhere. But if fungibility is the concern, there is no reason to stop at direct funding. After all, when the government provides police and fire protection to organizations that provide abortions or abortion referrals, it is also "subsidizing" abortion. Absent such protection, the organizations would have to hire their own private police and firefighters.

Indeed, why stop with the organizations themselves? By providing police and fire protection to the employees of organizations that provide or counsel about abortion, the government enables the organizations to pay the employees less than they would have to pay if the employees needed to buy their own private police and fire protection, for themselves and their homes — thus freeing up more of the organizations' money for abortions.

The basic difficulty is that two valid principles collide in funding cases. On the one hand, the fungibility problem is real. Any time the government provides an organization with cash or services, there is a real economic sense in which it sponsors all of the organization's activities. On the other hand, every individual and organization takes for granted so much governmental aid that denying such aid in response to a particular activity will often have the effect of penalizing that activity, not merely failing to subsidize it.

Resolving the Subsidy/Penalty Conflict

How can we distinguish between a legitimate decision by the government not to subsidize religion or abortion, and illegitimate efforts by the government to use the funding power in a punitive or coercive manner? At the extremes, there are widely shared intuitions. The government cannot fund the purchase of Bibles and crucifixes; the government can and should deliver mail to churches, and to abortion clinics as well.

Most cases are less clear-cut, and drawing an appropriate line will thus be a matter of judgment. The Bush Administration's plan to fund faith-based social services stands on relatively firm ground, partly because the available empirical evidence suggests that religious organizations have a better success rate than their secular counterparts and thus that the funding has a secular justification (effectiveness).

However, there is a real danger of what constitutional lawyers call entanglement." To ensure that no one is obligated to perform a religious ritual as a condition of receiving needed social services, the government may have to intrude into the operations of religious organizations in a way that threatens the integrity of both the government and the religious organizations.

As far as the funding of international aid organizations is concerned, the Bush executive order probably goes too far. By cutting aid to organizations that provide family planning assistance, the Bush administration will likely increase the incidence of abortions in countries where those organizations are active. If funding those organizations would make us "complicit" in the abortion services they provide, then cutting funding equally makes us "complicit" in the abortions those cuts foreseeably will cause.

Ultimately, the fungibility of money, and the ubiquity of the state in providing services and setting ground rules, together mean that there is no such thing as a "mere" decision not to subsidize an activity. Whether the government chooses to fund or not to fund, to regulate or not to regulate, even to decide or not to decide, it has still made a choice. When that happens, our leaders at least owe us an explanation of the values that went into that choice.


Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University.

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