Full opinion text
OPINION EN BANC BOWNES, Circuit Judge. The Secretary of Health and Human Services (HHS) appealed from an injunction issued by the district court of Massachusetts enjoining enforcement of regulations promulgated under Title X of the Public Health Services Act, 42 U.S.C. § 300 et seq. The regulations significantly alter HHS’s interpretation of section 1008 of Title X, which provides that “[njone of the funds appropriated under [Title X] shall be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. Prior to the promulgation of the new regulations, the Secretary construed section 1008 to prohibit the use of Title X funds to encourage or promote abortion but to permit nondirective counseling to pregnant women on all available medical and legal options, including abortion. The new regulations prohibit any counseling or referral for abortion services and redefine the scope of Title X projects to restrict privately funded abortion-related activities. The district court found that the new regulations represented an abrupt reversal of a longstanding agency policy, and concluded that each of the various provisions either exceeded the statutory authority of the Secretary or infringed upon constitutionally protected activities. The court therefore enjoined the enforcement or application of the regulations. A panel of this court heard argument on July 28, 1988 and affirmed the opinion of the district court with one judge dissenting in part. That opinion was withdrawn and an en banc hearing was held to consider the effect of the Supreme Court’s decision in Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), which was issued after the panel opinion. In Webster, a sharply divided Court upheld portions of a Missouri law that prohibited state funds or facilities from being used for abortions. The Court found that the Missouri law “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.” 109 S.Ct. at 3052 (quoting Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)). The Court relied upon and reaffirmed the holdings of McRae and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) and upheld the validity of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and the right of reproductive choice. Thus Webster did not change the legal landscape upon which the panel opinion was based. We hold that although, with one exception, the regulations are permissible under the enabling statute, they are unconstitutional. I. STATUTORY AND REGULATORY BACKGROUND A. The Title X Program The Family Planning and Services Population Research Act of 1970, which added Title X to the Public Health Service Act, authorizes the Secretary of Health and Human Services to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.... 42 U.S.C. § 300(a). Title X grantees operate health care facilities offering a wide range of family planning information and services, including contraceptive prescriptions and counseling on all choices that follow pregnancy, and referrals to other medical service providers. The majority of Title X grantees are public health clinics. Many of these clinics provide abortion facilities on the same site as the Title X project, sharing many of the same staff and resources but relying on nonfederal funds for the abortion-related activities. Under the prior policy many of the Title X grantees provided women with abortion counseling and referrals. This longstanding agency policy was embodied in the Program Guidelines issued by HHS in 1981 which required that pregnant women be provided with “nondirective” counseling and referrals on alternative courses of action, such as prenatal care and delivery, infant care, foster care, adoption and abortion. See Program Guidelines for Project Grants for Family Planning Services (1981), reprinted in Joint Appendix (J.A.) at 71, 85. No family planning project can be completely funded by Title X. 42 C.F.R. § 59.11(c). Projects that receive funds under Title X are required to provide nonfed-eral “matching funds” of at least 10% of the money provided through Title X. 42 U.S.C. § 300a-4. In fact, “matching funds” comprise a much larger portion of the budget than the required 10%. See, e.g., J.A. at 40-41, 55, 61-62. See also Valley Family Planning v. North Dakota, 661 F.2d 99, 100 (8th Cir.1981) (Title X funds 33% of budget). This money is provided through state payments such as Medicaid, fees paid by the clients (based on a sliding scale) and private funds. At oral argument, the Secretary stated that federal government funds account for about 50% of the money received by Title X clinics. Title X projects serve an estimated 14.5 million women. About a third of those who receive services are adolescents and approximately ninety percent of the women served had incomes below 150 percent of the poverty line. 131 Cong.Rec. S16860 (daily ed. Dec. 4, 1985). See also J.A. 40-41, 55, 61-62, 213. One of the most frequent reasons for an initial visit to a Title X family planning facility, particularly by adolescents, is for a pregnancy test. Program Guidelines for Project Grants and Family Planning Services, Public Health Service, 1981, J.A. at 71, 84. B. The New Regulations On February 2, 1988, the Secretary promulgated the superseding regulations that are at issue in this case. The relevant provisions are set forth in Appendix A. These regulations significantly alter the previous agency interpretation of Title X by prohibiting nondirective abortion counseling or referral and by enlarging the degree of financial and physical separation required between federally and nonfederally funded activities conducted by a Title X grantee. The new regulations change many aspects of the existing regulations. Our focus will be on a few particular changes. First, some key definitions have been changed. In Section 59.2 the term “family planning” is redefined to refer solely to “preconceptional” services. The result, if the regulations are implemented, would render Title X funds no longer available for pregnancy or post-partum services. “Title X program” and “Title X project” are also redefined to include not only grant funds but also “grant-related income or matching funds.” 42 C.F.R. § 59.2. By virtue of this change, the extensive prohibitions against counseling, referral and abortion-related activities in the regulations apply broadly to recipient generated income as well as to federal funds. As mentioned, the regulations reverse the preexisting policy of nondirective counseling. 42 C.F.R. § 59.8. Specifically, they prohibit counseling or referral for abortion as a method of family planning and require that all Title X clients diagnosed as pregnant receive “a list of available providers that promote the welfare of mother and unborn child” as well as information “necessary to protect the health of the mother and unborn child.” 42 C.F.R. § 59.8(a). In an emergency, a Title X entity may refer a client to a provider of “emergency medical services.” Id. The regulations also specifically prohibit a Title X entity from circumventing the abortion prohibitions by using the list of referrals “as an indirect means of encouraging or promoting abortion as a method of family planning.” 42 C.F.R. § 59.8(a)(3). Finally, although a Title X entity may provide information that is medically necessary to assess the relative risks and benefits of various contraceptive methods, that information may not include the counseling or promotion of abortion. 42 C.F.R. § 59.8(a)(4). The new regulations also require that Title X entities be “physically and financially separate” from entities providing proscribed activities or information. 42 C.F.R. § 59.9. The Title X entities must have “an objective integrity and independence” that reaches beyond separate bookkeeping to include separation of accounting records, facilities and personnel and even separate signs for the federally and nonfederally funded activities. Id. Finally, the regulations contain a list of prohibited activities including lobbying for pro-choice legislation, providing speakers to promote the availability of abortion, paying dues to groups that advocate abortion and engaging in legal action or developing and disseminating materials to promote abortion as an option in the case of an unintended pregnancy. 42 C.F.R. § 59.10. II. PROCEEDINGS BELOW Appellees, the Commonwealth of Massachusetts, the National Family Planning and Reproductive Health Association (NFPRHA) and the American Public Health Association filed suit for declaratory and injunctive relief in federal district court on February 2, 1988. The district court allowed the intervention of Mary Moe, a low-income woman dependent upon a Title X entity for her health care needs. In their joint complaint, appellees charged that the new regulations reversed a consistent and longstanding agency interpretation of Title X without any justification, and violated both congressional intent and the constitutional rights of Title X grantees and their clients. Appellees filed a motion for preliminary injunction on February 9, 1988, alleging that implementation of the regulations would undermine seriously the quality and character of the Title X program. The Secretary opposed the motion for a preliminary injunction and moved that the action be dismissed, or, in the alternative, that summary judgment be granted. The district court held a hearing on February 18, 1988, and issued a final decree on March 3, 1988, consolidating the preliminary injunction with a decision on the merits. In its opinion, the court addressed both the statutory and the constitutional issues. Massachusetts v. Bowen, 679 F.Supp. 137 (D.Mass.1988). The court considered the various sections of the new regulations independently and found that the prohibition on abortion counseling and referral exacted a penalty for the exercise of protected speech. It also found that the prohibition constituted a content-based restriction unsupported by a compelling government interest. The court therefore enjoined the enforcement of section 59.8 on first amendment grounds. The court then considered the restrictions on lobbying and advocacy. It found that section 59.10 had a more far-reaching effect than a mere refusal to subsidize. In light of the restriction on the use of non-federal funds and the requirement of complete financial and physical separation contained in sections 59.2 and 59.9, the court held that the Secretary had imposed an unduly burdensome requirement on Title X grantees that was not narrowly tailored to meet the legitimate goal of not subsidizing advocacy. The court further found that section 59.10 constituted a content-based restriction that violated the first amendment and enjoined the enforcement of that provision. In addition, the court enjoined the enforcement of section 59.9, finding that the physical and financial separation requirement violated the congressional intent to create coordinated family planning services. And finally, the court concluded that the restriction imposed by the new regulations on the flow of neutral information concerning abortion to pregnant women violated the right to privacy as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). III. STATUTORY ANALYSIS Because courts should only decide unavoidable constitutional questions, we begin our analysis with an inquiry into whether the new regulations exceed the Secretary’s authority under Title X. See, e.g., Harris v. McRae, 448 U.S. 297, 307, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784 (1980) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)); Benoni v. Boston and Maine Corp., 828 F.2d 52, 57 (1st Cir.1987). The Secretary is empowered by the statute to promulgate regulations to ensure that the grants are made in accordance with the statute. 42 U.S.C. § 300a-3. The Secretary, of course, must issue regulations that implement the intention of Congress. Thus the interpretive question posed is whether Congress [has] directly spoken on the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Four factors should be considered in attempting to ascertain congressional intent: (1) the language of the statute; (2) the contemporaneous legislative history; (3) any subsequent legislative history and (4) agency interpretation(s) of the statute. Consumer Product Safety Comm. v. GTE Sylvania, 447 U.S. 102, 108-20, 100 S.Ct. 2051, 2056-62, 64 L.Ed.2d 766 (1980). If an examination of these factors does not reveal the legislative intent, then deference to the agency interpretation of the statute is appropriate if the agency interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. Of course, less deference is due to an agency's position that is inconsistent with a prior consistently held agency view. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987). With these guidelines in place, we turn to the statute. 1. Statutory Language We start with the language of section 1008 of Title X: “None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. Both appellees and the Secretary contend that the “plain meaning” of this sentence requires the result they seek. Appellees argue that the ordinary meaning of the words in the statute prohibits only the funding of abortions and does not reach the funding of abortion counseling or referral. Appellees also contend that section 1008’s prohibition applies to programs funded by Title X and may not be extended to prohibit abortion activities funded privately by a recipient organization. The Secretary disputes that reading and argues that the new regulations are consistent with the language of the statute. He contends that the new regulations more closely follow the prohibition of section 1008 by recognizing the importance of counseling and referral to family planning and by prohibiting any abortion-related activity in those areas and limiting the services of the clinics to only preconceptional services. The Secretary further argues that the prohibition on abortion stated in section 1008 limits the statutory language favoring integration and coordination of family planning services and that the program separation requirements of the new regulations are therefore consistent with the statute. The statutory language is inconclusive. The prohibition in section 1008 is phrased broadly and is susceptible of many differing interpretations. Accord Memorandum from Joel M. Mangel, Deputy Assistant General Counsel, Division of Public Health Grants and Services, to Louis H. Heilman, M.D., Deputy Assistant Secretary for Population Affairs (Apr. 20, 1971), reprinted in J.A. at 108. It is not enough for appel-lees to show that the statutory language does not expressly forbid counseling and referral or mandate complete physical and financial separation. The Secretary’s construction does not contravene the express language of the statute itself. We must therefore look beyond the exact wording of section 1008 to attempt to assess the meaning of the statute. Accord Planned Parenthood Fed’n of America v. Bowen, 680 F.Supp. 1465, 1468 (D.Colo.1988); New York v. Bowen, 690 F.Supp. 1261 (S.D.N. Y.), aff'd, 863 F.2d 46 (2d Cir.1989). 2. Legislative History Appellees argue that Congress intended to provide a full range of information to Title X clinic clients and to coordinate all family planning services. The Secretary argues that Congress intended to fund only preventive family planning and that the new regulations are therefore more consistent with the legislative intent than the previous agency mandate for nondirective counseling. The legislative history is inconclusive in most respects. The statement of purpose in the House Report preceding the passage of Title X stressed the importance of supplying both family planning services and a full range of family planning information and of developing a comprehensive and coordinated program. H.Rep. No. 1472, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 5068. The Conference Report stated that funding would be used only to support preventive family planning, with the caveat that Title X programs should be fully coordinated with state and local programs which by implication included programs that coun-selled or provided abortions. H.R.Conf. Rep. No. 1667, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 5080, 5081. There is language in the legislative history that can be read as allowing non-grant money to be used for abortion related activity: The conferences have adopted the language contained in section 1008, which prohibits the use of such funds for abortion. The legislation does not and is not intended to interfere with or limit programs conducted in accordance with State or local laws and regulations which are supported by funds other than those authorized under this legislation. Id. at 5082. The Secretary attempts to bolster his legislative history argument by relying on a few comments by Congressman Dingell made during the House debate. Such comments are accorded little weight when compared with other tools of statutory interpretation. Consumer Product, 447 U.S. at 118, 100 S.Ct. at 2061; Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979). In addition, these comments are neither persuasive nor unambiguous. Thus the legislative intent about the scope of the abortion prohibition is unclear. There was clearly expressed legislative intent to expand the level of family planning services provided to low-income women and to coordinate family planning services. The district court ably surveyed this evidence: The legislative history of Title X offers persuasive evidence that the program integrity regulations run contrary to congressional intent underlying section 1008. The original Conference Report on Title X stated that the abortion prohibition was “not intended to interfere with or limit programs” supported with other than Title X funds. H.R.Conf.Rep. No. 1667, 81st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 5082. Furthermore, the Report of the Senate Labor and Public Welfare Committee for the 1975 reauthorization of Title X provided: The Committee encourages the use of funds otherwise authorized by this bill for the provision of family planning services, not only in specialty clinics, but, where such facilities do not exist or are impractical, in entities devoted to comprehensive health care for low-income families.... [I]t is essential that there be close coordination and, whenever possible, integration of family planning services into all general health care programs. S.Rep. No. 63, 94th Cong., 1st Sess. 65-66 (1975), reprinted in 1975 U.S.Code Cong. & Admin.News 528. The contemporaneous and continuous agency interpretation was consistent with this view. Indeed, the statute itself mandates “a State plan for a coordinated and comprehensive program of family planning services.” 42 U.S.C. § 300a(a) (1982). The requirement of physical separation runs contrary to this congressional emphasis on coordinated and integrated health care services. Massachusetts v. Bowen, 679 F.Supp. at 143. Appellees submitted numerous affidavits stating that the new regulations would require many clinics either to give up their Title X funding or to terminate family planning services altogether. See, e.g., Affidavit of Leslie Tarr Laurie, Executive Director of Family Planning Council of Western Massachusetts, reprinted in J.A. at 40, 41; Affidavit of Diane M. Booth, Executive Director of Planned Parenthood of Central Missouri, reprinted in J.A. at 55, 57; Affidavit of Karen Cody Carlson, Executive Director of Planned Parenthood of Greater Kansas City, reprinted in Joint Appendix at 61, 63; and Affidavit of Mary Russell, Director of Family Planning for Action for Boston Community Development, reprinted in J.A. at 213, 215. We agree with the district court that the requirement of physical and financial separation set forth in section 59.9 violates congressional intent because of the effect it would have of limiting family planning programs. That result would be completely contrary to the express Congressional intention to expand family planning services. We affirm the district court’s conclusion that the promulgation of section 59.9 exceeds the Secretary’s authority and we enjoin its enforcement. 3. Subsequent Legislative History The contemporaneous legislative history does not directly address the issues of abortion counseling and referral or lobbying and advocacy, so we turn to subsequent legislative history for guidance. We are aware of the longstanding principle that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” Consumer Product Safety Comm’n, 447 U.S. at 117-19, 100 S.Ct. at 2060-62 (footnote omitted) (citing United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 348-49, 83 S.Ct. 1715, 1733-34, 10 L.Ed.2d 915 (1963) which quotes United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334 (1960)). We also recognize that subsequent legislative history provides an even shakier ground than subsequent legislative action from which to infer original intent. Id. 447 U.S. at 118 n. 13, 100 S.Ct. at 2061 n. 13. Nonetheless, subsequent Congressional inaction may signal acquiescence to an agency interpretation. Haig v. Agee, 453 U.S. 280, 300-01, 101 S.Ct. 2766, 2778-79, 69 L.Ed.2d 640 (citing Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-79, 14 L.Ed.2d 179 (1965)) (the amendment of one statute, considered in light of the failure to amend another related statute, under which the Secretary of State had asserted broad powers, may indicate congressional acquiescence to the administrative construction of the unmodified statute). Accord North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 534-35, 102 S.Ct. 1912, 1924-25, 72 L.Ed.2d 299 (1982). Congressional inaction in the face of agency action on a subject of heated national interest and debate also merits additional consideration and weight. Bob Jones Univ. v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). In Bob Jones Univ., the Internal Revenue Service changed a longstanding policy and issued a new ruling that denied tax-exempt status to private schools practicing racial discrimination. The Court upheld the agency ruling, stating: [F]ew issues have been the subject of more vigorous and widespread debate and discussion in and out of Congress than those related to racial segregation in education. Sincere adherents advocating contrary views have ventilated the subject for well over three decades. Failure of Congress to modify the IRS rulings of 1970 and 1971, of which Congress was, by its own studies and by public discourse, constantly reminded, and Congress’ awareness of the denial of tax-exempt status for racially discriminatory schools when enacting other and related legislation make out an unusually strong case of legislative acquiescence in and ratification by implication of the 1970 and 1971 rulings. Id. at 599, 103 S.Ct. at 2032. Appellees analogize this case to Bob Jones Univ. They contend that the failure of Congress to amend section 1008, despite repeated amendments, reauthorizations and reenactments of Title X, indicates acquiescence to the agency’s preexisting policy of allowing nondirective counseling as provided for in the 1981 Program Guidelines. Appellees argue that this congressional inaction merits additional weight, under the principle of Bob Jones Univ., because of the volatility and importance of the national controversy over abortion rights. The Secretary disagrees on two grounds. First, he argues that the subsequent legislative history of Title X reflects confusion over the scope of the abortion prohibition and therefore Congress cannot be deemed to have ratified an agency construction that it did not wholly understand. Second, he argues that, even if we could infer ratification of the previous agency interpretation, such ratification would merely reflect acquiescence to a prior policy — it would not indicate that the Secretary’s new policy exceeds his statutory authority. The Secretary’s second argument is persuasive. Although appellees have stated a strong case for congressional acquiescence, the ratification of one agency policy by Congress does not preclude a change in that policy. In Bob Jones Univ., congressional acquiescence in agency policy was used as proof that an agency was acting within its statutory authority. Here appel-lees would use congressional acquiescence to prior agency policy as proof that a change in that policy is beyond the scope of its statutory mandate. The Court rejected similar reasoning in Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). In that case, the Court reviewed a decision of the Secretary of Transportation to rescind a requirement that automobiles be equipped with passive restraints and held that previous congressional support for the passive restraint requirement did not preclude a change in policy: While an agency’s interpretation of a statute may be confirmed or ratified by subsequent congressional failure to change that interpretation ... in the cases before us, even an unequivocal ratification — short of statutory incorporation — of the passive restraint standard would not connote approval or disapproval of an agency’s later decision to rescind the regulation. Id. at 45, 103 S.Ct. at 2867 (citing Bob Jones Univ., 461 U.S. at 599-602, 103 S.Ct. at 2032-34; and Haig, 453 U.S. at 291-300, 101 S.Ct. at 2773-78). Similarly, in the present case, congressional support for a narrow reading of the abortion prohibition does not necessarily indicate that the new regulations violate congressional intent. 4. Contemporaneous Agency Policy An agency’s contemporaneous construction of its founding statute should be given deference. Moreover, a contemporaneous construction “deserves special deference when it has remained consistent over a long period of time.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600 n. 17, 101 S.Ct. 817, 823 n. 17, 66 L.Ed.2d 762 (1981) (citations omitted). Accord Andrus v. Shell Oil Co., 446 U.S. 657, 667-68, 100 S.Ct. 1932, 1938-39, 64 L.Ed.2d 593 (1980). Such deference is necessary because a contemporaneous construction is more likely to reflect the intent of the enacting Congress. See St. Luke’s Hosp. v. Secretary of Health and Human Seros., 810 F.2d 325, 331 (1st Cir.1987). Appellees argue that the agency’s contemporaneous and consistent interpretation of section 1008 to permit nondirective counseling and to encourage coordination with local and state family planning services is entitled to substantial deference. The Secretary construes the contemporaneous policy of HHS differently. He argues that the thrust of prior policy was a prohibition on any encouragement or promotion of abortion; the new regulations remain true to that policy and merely readjust the level at which prohibited encouragement is deemed to commence. The Secretary’s position is untenable. We agree with both the court below and the district court in Colorado that the new regulations constitute a radical break from a prior consistent policy permitting nondi-rective counseling: “[F]rom the time Congress enacted § 1008 in 1970, [the Secretary] consistently interpreted it to permit the neutral dissemination of information about abortion, and the referral upon request to entities which provide abortion.” Planned Parenthood Fed’n of America, 680 F.Supp. at 1471. There are three independent interpretations of section 1008 that support our conclusion. First, a 1971 memorandum from the office of General Counsel to the Deputy Assistant Secretary for Population Affairs states that, although section 1008 should be read broadly to prohibit any encouragement or promotion of abortion, it should not be read so broadly as to impede the coordination of family planning activities. See Memorandum from Joel M. Mangel, reprinted in J.A. at 110. Second, a report from the office of the General Counsel to the Senior Attorney, Public Health Division, states: This office has traditionally taken the view that § 1008 not only prohibits the provision by Title X grantees of abortion as a method of family planning by the Title X-supported program. Under this view, the provision of information concerning abortion services, mere referral of an individual to another provider of services for an abortion, and the collection of statistical data and information regarding abortion are not considered to be proscribed by § 1008. The provision of “pregnancy counselling” in the sense of encouraging persons to obtain abortions and the provision of transportation to persons to enable them to obtain abortions, on the other hand, are considered to be proscribed by § 1008. Memorandum from Elsie Sullivan, Assistant for Information and Education, Office of Family Planning, to Senior Attorney, Public Health Division (Apr. 1, 1978), reprinted in J.A. at 113, 114-15 (footnotes omitted) (emphasis added). And finally, the 1981 Program Guidelines issued by HHS specifically require nondirective counseling for pregnant women: Pregnant women should be offered information and counseling regarding their pregnancies. Those requesting information on options for the management of an unintended pregnancy are to be given non-directive counseling on the following alternative courses of action, and referral upon request: * Prenatal care and delivery * Infant care, foster care, or adoption * Pregnancy termination Program Guidelines for Project Grants for Family Planning Services, reprinted in J.A. at 85. The record, therefore, reflects a consistent agency interpretation that permitted nondirective counseling, encouraged coordination of all family planning services and prohibited only active encouragement or promotion of abortion. Such a contemporaneous agency construction is compelling but we cannot conclude on the basis of this evidence alone that the congressional intent is unambiguous. Congress has not addressed specifically the question of the scope of the abortion prohibition. The language of the statute and the legislative history can support either of the litigants’ positions. Therefore, we must determine whether the new regulations are a permissible construction of Title X. See Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. 5. Deference to the Agency Construction The district court found that the Secretary had failed to justify the change in policy embodied in the new regulations. In its opinion, the court held the regulations to a heightened standard of review: “[W]hen an agency decides to change the course of a longstanding administrative interpretation, it must justify its action to a greater degree than when it first promulgates regulations.” 679 F.Supp. at 141-42 (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 41-42, 103 S.Ct. at 2865-66). We find heightened scrutiny unwarranted. When an agency rescinds or modifies a policy, its actions are subject to the same standard of review as that applied to the original promulgation of a policy: the arbitrary and capricious standard. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 41, 103 S.Ct. at 2865. Such review, although narrow, is still broader than that accorded to a refusal to promulgate rules in the first instance: [T]he revocation of an extant regulation is substantially different than a failure to act. Revocation constitutes a reversal of the agency’s former views as to the proper course.... Accordingly, an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance. Id. at 41-42, 103 S.Ct. at 2865-66. The heightened standard referenced by the district court is adjudged in comparison to a refusal to act, not in comparison to a previous promulgation of rules. Cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (agency refusal to take enforcement action presumptively unre-viewable). The standard of review applicable to both original agency action and agency rescission or modification of a prior standard requires the agency action to be “rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42, 103 S.Ct. at 2866. Applying this standard to the case at bar, we must decide whether the Secretary has provided a “reasoned analysis” for the change in agency policy. The Secretary advances two bases for the new regulations. See 53 Fed.Reg. 2922 et seq. (Feb. 2, 1988), reprinted in J.A. at 169. First, he argues that the new regulations more closely conform to the language of section 1008. See 53 Fed.Reg. at 2923. We have already found that the statutory language is ambiguous and susceptible to differing interpretations so that the argument is unpersuasive. Second, the Secretary argues that, even if not mandated by the express language of section 1008, the new regulations more “faithfully and effectively” implement the abortion prohibition. 53 Fed.Reg. at 2923. The Secretary cites reports by the Office of the Inspector General (OIG) and the General Accounting Office (GAO) to support his assertion that Title X projects required guidance “to preserve the distinction between Title X programs and abortion as a method of family planning.” Id. The reports provide a very slim reed of support. Both reports found that Title X grantees were aware of and acted in accordance with the prohibition against the encouragement or promotion of abortion. The two reports did suggest, however, that the Secretary clarify the agency’s preexisting policy position on abortion-related activities. The GAO report further suggested that, given the sensitivity of the abortion controversy, the agency might look to Congress for any further guidance on the scope of the abortion prohibition. The OIG and the GAO reports only called for a clarification of existing standards. The Secretary construes the reports more broadly and argues that the suggestion of clarification provides support for the promulgation of wholly new and modified regulations. Were we to apply a heightened standard of review, we well might find the Secretary’s rationale lacking; however, our scope of review is narrow. We must “ ‘uphold a decision of less than ideal clarity if the agency's path may be reasonably discerned.’ ” Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. at 2866 (quoting Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). We may not apply a heightened scrutiny to the actions of the Secretary in order to avoid the more difficult constitutional issues raised by the abortion controversy. Although these facts present a very close case, we cannot say that the Secretary has failed utterly to provide a reasoned basis for change. We must defer to the agency construction of the statute. 6. Conclusion Our examination of the traditional elements of statutory construction yields the following results. The plain words of the statute are susceptible to differing interpretations. The contemporaneous legislative history is inconclusive, except on the issue of program coordination. The subsequent legislative history indicates congressional acquiescence to the previous agency policy promoting nondirective counseling, but this acquiescence does not preclude a change in agency policy. And finally, because of the deference due an agency’s interpretation of an enabling statute, the Secretary’s new policy is not impermissible under the statute. We turn therefore to the constitutional questions presented by the new regulations. IV. THE RIGHT OF REPRODUCTIVE CHOICE Appellees argue that even if the counseling and referral regulations do not violate Title X, they are an unconstitutional encroachment upon a woman’s right to reproductive choice because they impermissibly restrict the information a Title X client receives during pregnancy counseling and by impermissibly restricting the contours of the physician-patient relationship in a Title X project. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Secretary attempts to refute that contention with the bald assertion that the regulations merely implement a funding decision to support childbirth over abortion and that the regulations impose no obstacle whatsoever to a woman’s choice between those alternatives. Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484. We find the Secretary’s reliance on Webster, Maher and McRae misplaced. We note first that the HHS regulations implicate more significant rights than those at issue in Webster and that the regulations create exactly the type of obstacle about which the Webster Court was concerned. Webster did not involve a first amendment issue and, as the Court explicitly noted, the Missouri statute only concerned funding of abortions and not the conduct of physicians. 109 S.Ct. at 3053. For these reasons, Webster does not dictate a reversal as the Secretary urges. Because the new regulations do pose a significant obstacle to a Title X client’s decision to terminate her pregnancy by curtailing her ability to receive counseling on abortion from the physician responsible for her medical care. We therefore find them unconstitutional. Our analysis starts with the uncontested proposition that the Constitution protects a woman's independence in making “certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-77, 51 L.Ed.2d 64 (1977) (footnote omitted). See also Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). That protection extends to decisions concerning both childbirth and the termination of a pregnancy. See Roe v. Wade; City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 To ensure independence in a woman’s decisionmaking, the Supreme Court has rejected attempts to intrude into the dialogue between a woman and her physician. See, e.g., Akron, 462 U.S. at 442-47, 103 S.Ct. at 2499-2502; Thornburgh, 476 U.S. at 763-65, 106 S.Ct. at 2180-81. In Akron and Thornburgh, the Court invalidated informed consent provisions designed to influence a woman’s choice between childbirth and abortions, reaffirming a woman’s right “in consultation with her physician, to decide to have an abortion and to effectuate that decision ‘free of interference by the state.’ ” Akron, 462 U.S. at 429-30, 103 S.Ct. at 2492-93 (quoting Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 731) (footnote omitted). See also Thornburgh, 476 U.S. at 761-64, 106 S.Ct. at 2179-81. In Akron, the Court struck down a city ordinance that required, inter alia, a woman’s physician to make specified statements to the patient prior to performing an abortion in order to ensure that the woman’s consent was “truly informed.” Id. at 423, 103 S.Ct. at 2488. The ordinance was unconstitutional for two “equally decisive” reasons. Id. at 445, 103 S.Ct. at 2500. First, the ordinance required that “dubious facts” be provided in order to manipulate a woman’s choice between childbirth and abortion. As the Court stated, “It is fair to say that much of the information required is designed not to inform the woman’s consent but rather to persuade her to withhold it altogether.” Id. at 444, 103 S.Ct. at 2500. Second, the Court found that, by requiring a physician to provide specified information to a client, the ordinance placed a physician in an “ ‘undesired and uncomfortable straightjacket.’ ” Id. at 445, 103 S.Ct. at 2500 (quoting Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67 n. 8, 96 S.Ct. 2831, 2840 n. 8, 49 L.Ed.2d 788 (1976)). The Court stressed the role of the doctor in the woman’s decision stating that “it remains primarily the responsibility of the physician to ensure that appropriate information, is conveyed to his patient, depending on her particular circumstances.” Id. 462 U.S. at 443, 103 S.Ct. at 2499. The Court concluded: By insisting upon recitation of a lengthy and inflexible list of information, Akron unreasonably has placed 'obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.’ Id. at 445, 103 S.Ct. at 2500 (quoting Whalen v. Roe, 429 U.S. at 604 n. 33, 97 S.Ct. at 879 n. 33) (footnote omitted). Both of Akron’s “equally decisive” reasons were used by the Court in striking down the informed consent provision at issue in Thornburgh. The Court warned that, although informed consent provisions were not unconstitutional as a general rule, “the State may not require the delivery of information designed ‘to influence the woman’s informed choice between abortion or childbirth.’ ” Thornburgh, 476 U.S. at 760, 106 S.Ct. at 2178 (quoting Akron, 462 U.S. at 443-44, 103 S.Ct. at 2499-2500). The state statute at issue required that a list of agencies offering alternatives to abortion and a description of fetal development be provided. The Court described those materials as “an outright attempt to wedge the Commonwealth’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician.” Id. 476 U.S. at 762, 106 S.Ct. at 2179. The Court explicitly condemned the requirement of a list of agencies providing alternatives to abortion as a distortion of the physician-patient relationship: Even the listing of agencies ... presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures — as it obviously was intended to do — the dialogue between the woman and her physician. Id. at 762-63, 106 S.Ct. at 2179-80 (citation omitted). The regulations at issue here attempt to structure the physician-patient dialogue and thereby influence a woman’s choice between childbirth and abortion even more completely than the informed consent provisions at issue in Akron and Thornburgh. Not only do the regulations require the Title X project to furnish all clients with “a list of available providers that promote the welfare of the mother and unborn child,” but they also forbid Title X projects from providing “counseling concerning the use of abortion as a method of family planning or ... referral for abortion as a method of family planning.” 42 C.F.R. § 59.8(a). The requirement that a list of agencies offering prenatal care be provided, standing alone, could well be enough to strike down the entire set of regulations because it attempts to persuade a woman to opt for childbirth over abortion by presenting limited and biased information and by rendering the decision to abort more difficult. Furthermore, the requirement forces the attending physician to endorse providers that “well may be out of step with the needs of the particular woman.” The listing of agencies does not stand alone, however. By coupling that requirement with a prohibition against nondirective counseling or referral to an abortion provider, regardless of the doctor’s judgment concerning the most appropriate medical care or the woman’s request for specific information, the Secretary has intruded even further into constitutionally protected decisionmaking. Read together, the new regulations force all Title X projects to provide incomplete and skewed information and to withhold requested, possibly even medically advisable, information. Paraphrasing Thorn-burgh, we find: The [federal government is] not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellant ] claim[s] that the [regulations] before us today further legitimate compelling interests of the [government]. Close analysis of those [regulations], however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make. Id. at 759, 106 S.Ct. at 2178. The regulations also run afoul of our holding in Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006 (1st Cir.1981), in which we invalidated a twenty-four hour waiting period requirement contained in a Massachusetts statute regulating abortions because it constituted “a substantial state-created burden on a woman’s fundamental right,” unjustified by a compelling state interest. Id. at 1015. The waiting period posed a substantial burden because the delay increased the medical risks of abortion and increased the an-ciliary costs to a woman desiring an abortion: [T]he fact that the form must be signed at least 24 hours prior to an abortion necessitates that a woman undertake at least two separate trips to obtain an abortion_ This effect necessarily imposes burdens in terms of time, money, travel and work schedules; for many women, particularly the poor, the rural, and those with pressing obligations, these burdens will be substantial. Id. (citations omitted). Accord Akron, 462 U.S. at 450-51, 103 S.Ct. at 2503-04 (twenty-four hour waiting period invalid because it intrudes upon physician discretion). Similar burdens are imposed upon Title X clients under the new regulations. By prohibiting nondirective counseling and eliminating all agencies providing abortions from referral lists, the regulations impose substantial delay and additional costs upon a woman desiring to terminate her pregnancy. Some low-income women may be unable to obtain any information on abortion at all without the help of Title X clinic. For others, the delay between the moment when they learn of their pregnancy and the time they obtain information on abortion may greatly increase the risks inherent in the abortion procedure. Our discussion in Bellotti of the Massachusetts informed consent requirement is also informative. The consent form mandated by the statute required a discussion of the abortion procedure, a description of fetal development and a statement that the decision not to abort would not constitute grounds for the denial of public assistance. We found'that although the form “comes close to an impermissible intrusion into the physician-patient relation,” several factors saved it from invalidity. 641 F.2d at 1017. Most importantly, we noted that the statute did not require a physician personally to read the form to the patient or to verify that she had read it herself, and that a physician could offer any additional information she felt necessary: “[T]he physician remains completely free to give any additional information desired regarding abortion, whether complementary to or contradictory of the information contained in the ... form.” Id. at 1017-18 (footnote omitted). That saving characteristic is not present in the new regulations. To the contrary, the regulations prohibit a wide range of additional information. According to Dr. Morley, this prohibition not only endangers the health of the woman, but it also contravenes medical ethics: [I]f all a health care professional is able to do in a situation where medical treatment is indicated is to advise the patient of the diagnosis and refer, such a limitation also would violate medical ethics and standard of practice. When a condition warranting treatment is diagnosed, even if referral is required, it is necessary to counsel on all options (including abortion) and make a referral consistent with the patient’s informed decision. Affidavit of Dr. George W. Morley, reprinted in J.A. at 32. The regulations, therefore, not only attempt to influence a woman’s decision but they also place a straightjacket on the physician, forcing her to depart from accepted standards of practice. The Court explicitly has rejected such regulation. See Akron, 462 U.S. at 431, 103 S.Ct. at 2493 (state may not regulate in manner which causes departure from “accepted medical practice”). The effect of the new regulations is to infringe upon women’s freedom of reproductive choice by denying them access to important information and by interfering with the physician-patient relationship. These encroachments most often occur during the first trimester of pregnancy, when a woman’s privacy interests are most unrestricted: [F]or the period of pregnancy prior to [the end of the first trimester], the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. Roe, 410 U.S. at 163, 93 S.Ct. at 734. We recognize, of course, that even during the first trimester, a woman’s privacy right is not absolute. In Akron, the Court held: Certain regulations that have no significant impact on the woman’s exercise of her right may be permissible where justified by important state health objec-tives_ But even these minor regulations on the abortion procedure during the first trimester may not interfere with the physician-patient consultation or with the woman’s choice between abortion and childbirth. 462 U.S. at 430, 103 S.Ct. at 2492 (citation omitted). In his brief, the Secretary has neither argued that the regulations advance important health objectives nor refuted appel-lees’ contention that they interfere with the physician-patient dialogue and a woman’s freedom of reproductive choice. Rather the Secretary has relied solely on Webster, Maher, and McRae claiming that the regulations reflect a legitimate funding decision to favor childbirth over abortion. Those cases do not change our result. In Webster, the Court reversed an Eighth Circuit opinion that had declared the public funding restrictions of a Missouri abortion law unconstitutional. The law prohibited public facilities from being used for or public employees from performing or assisting most abortions. In upholding the law, the Court relied upon and reaffirmed the teachings of McRae and Maher. Webster, 109 S.Ct. at 3051-53. The Court stated that Missouri’s choice “to use public facilities and staff to encourage childbirth over abortion ‘places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.’ ” Webster, 109 S.Ct. at 3052 (quoting McRae, 448 U.S. at 315, 100 S.Ct. at 2687.) The Eighth Circuit had also struck down a portion of the Missouri law that prohibited the use of state funds or facilities for counseling or encouraging a woman to have an abortion. In addition, state employees were prohibited from counseling or encouraging abortions. The State did not appeal the decisions on the uses of state facilities or employees for counseling, so those rulings still stand. In appealing the limitation on the use of state funds for counseling, Missouri construed the law as only limiting the actions “of those persons responsible for expending public funds” and stated that the restriction “is not directed at the conduct of any physician.” Webster, 109 S.Ct. at 3053. Because of that limiting definition, the Webster plaintiffs were no longer adversely affected by the law and the Eighth Circuit’s decision was unanimously held moot. Webster, 109 S.Ct. at 3053-54. In discussing the mootness issue several justices noted that if the ban were interpreted to “prohibit publicly employed health professionals from giving specific medical advice to pregnant women,” a serious controversy would exist. Id. at 3060 (O’Connor, J., concurring); Id. at 3068-69 n. 1 (Blackmun, Brennan, and Marshall, JJ., concurring in part and dissenting in part). In Maher, the Court upheld a regulation promulgated by the Connecticut Welfare Department that limited state Medicaid benefits for first trimester abortions to those which were deemed medically necessary. The Court found that although the regulations may well have rendered childbirth a more “attractive alternative,” they imposed no restrictions on a woman’s access to abortion and thereby did not infringe upon her constitutional right to reproductive choice. 432 U.S. at 474, 97 S.Ct. at 2382. The Court explicitly distinguished the regulations under consideration from a government effort to restrict a woman’s freedom in decisionmaking: “Our conclusion signals no retreat from Roe or the cases applying it. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher, 432 U.S. at 475, 97 S.Ct. at 2383 (footnote omitted). The Court affirmed Maher’s reasoning in McRae by upholding an amendment to Title XIX of the Social Security Act that restricted the use of federal Medicaid funds to support certain medically necessary abortions. The Court explained that the amendment created no obstacle to a woman’s freedom of choice: “The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indi-gency.” McRae, 448 U.S. at 316, 100 S.Ct. at 2687 (citing Maher). The emphasis in both Maher and McRae was on preexisting limitations on a woman’s access to abortion which the government failed to alleviate through funding. The distinction between refusals to fund abortion and incursions upon the decisional process is explicitly recognized and illustrated by a juxtaposition of text and footnote in Akron. In the body of its opinion, the Court stated that while some informed consent provisions may pass constitutional muster, the state could not attempt to direct the flow of information on abortion through such provisions: This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth’s recognition of the State’s interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman’s informed choice between abortion or childbirth. Akron, 462 U.S. at 443-44, 103 S.Ct. at 2499-2500. In a footnote to this passage, the Court distinguished state provisions designed to effect the decisional process by regulating the flow of information from the provisions at issue in Maher and McRae which merely provided financial support for a policy choice: “This legislation to further an interest in preferring childbirth over abortion was permissible ... only because it did not add any ‘restriction on access to abortions that was not already there.’ ” Akron, 462 U.S. at 444 n. 33, 103 S.Ct. at 2500 n. 33 (citing Maher, 432 U.S. at 474, 97 S.Ct. at 2382). As we mentioned initially, Webster reaffirmed the validity of McRae and Maher. V. OBSTACLES TO ABORTION CREATED BY THE REGULATIONS In the instant case, the Secretary’s policy does not merely fail to remove obstacles to abortions — it creates obstacles. By insisting upon a one-sided flow of information to Title X clients and by prohibiting the provision of nondirective counseling, the regulations place significant limitations upon a woman’s freedom of reproductive choice. In Akron, the Court specifically recognized that denial of information about abortion (rather than funding) was an impermissible obstacle. Akron, 462 U.S. at 446, 103 S.Ct. at 2500. Due to the combination of government compelled disclosures and nondisclosure, a Title X client will make a decision concerning her pregnancy based upon a distorted consultation marred by medically incomplete information and referrals. Cf Benshoof, The Chastity Act: Government Manipulation of Abortion Information and the First Amendment, 101 Harv.L. Rev. 1916, 1921-22 (1988) (government sponsored programs prohibited from providing abortion counseling or referral “manipulate the abortion decision itself by deliberately providing distorted information.”) (footnote omitted). Both Maher and McRae emphasized that the contested provisions left the woman’s decisional process intact; in the instant case, that process is undermined through a government crafted restructuring of the physician-patient dialogue. Regulating the substance of the dialogue between physician and patient in order to influence a woman’s decision concerning her pregnancy creates a new and imposing obstacle to abortion. We are particularly struck by the effect these restrictions have on poor women who are forced to rely on Title X clinics. They are significantly worse off than they would have been if the government had not provided the clinics because they have received misinformation rather than no information about their options. In addition, because most Title X clients pay a portion of the cost of the services (based on a sliding scale), the client’s ability to go elsewhere has been significantly diminished because she has already paid what she could afford to the Title X clinic. The regulations create an additional obstacle by restricting the private funds available for abortion counseling and services. As we have said before, “the abortion funding cases stand for the proposition that the state cannot refuse to make grants to an organization that encourages or performs abortions if those abortion related funds are derived from nongovernmental sources.” Student Government v. Bd. of Trustees, 868 F.2d 473, 481 (1st Cir.1989). By not only refusing to fund abortions, but also restricting nongovernmental money that may be used for abortion services, these regulations create an additional obstacle in the exercise of a woman’s right to reproductive choice. VI. OTHER COURT DECISIONS ON TITLE X FUNDING Other courts have declared unconstitutional the obstacle to abortion created by government limitations upon the flow of information. In P