dissenting in part:
I respectfully dissent from so much of the judgment as upholds the new regulations promulgated by the Secretary of Health and Human Services with respect to abortion counseling and referrals. Even assuming that the Secretary’s new interpretation of Title X, 42 U.S.C. §§ 300 et seq. (1982 & Supp. V 1987), is entitled to deference, I view these regulations as arbitrary and capricious and as violative of rights guaranteed by the Constitution.
Section 59.8(a)(1) of the new regulations, see 42 C.F.R. §§ 59.7-59.10 (1988), entitled in part “Prohibition on counseling and referral for abortion services,” provides that a “Title X project may not provide counseling concerning the use of abortion ... or provide referral for abortion.” There can be no doubt that the Secretary intends this regulation to forbid a grantee from inform*416ing a pregnant woman of the availability of abortion and even from telling her where she can get abortion-related information. For example, though the regulations permit a grantee to give the woman a list of prenatal-care service providers that might also offer abortions, the list must comply with several requirements. It must include any available prenatal-care providers that do not perform abortions; it cannot include providers that offer abortions as their “principal business”; and it cannot “weigh[ ]” in favor of abortion providers. 42 C.F.R. § 59.8(a)(3). The grantee is not allowed to inform the woman which providers on the list, in addition to offering prenatal care, also perform abortions. Rather, care providers that also perform abortions may be included only if “the referral is specifically made to the providers of prenatal care services.” 53 Fed.Reg. 2922, 2938 (1988) (emphasis added). Indeed, the grantee is required to inform the client about care to preserve the unborn fetus. Section 59.8(a)(2), for example, provides that “once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child.” (Emphasis added.)
The majority states that the regulations “do not facially discriminate on the basis of viewpoint of the speech involved,” that they do not authorize argumentation “pro or con” as to the advisability of abortion, and that they do not suggest “in any way” that Title X funds may be used for advocacy against abortion. I submit that precisely the opposite is plain from the face of the regulations. In addition to the regulations discussed above, for example, § 59.8(b)(4) provides that when a woman asks for a list of abortion providers, the grantee is not permitted to give her a list that includes entities whose principal business is abortion, or a list that does not include “providers of prenatal care in the area which do not provide or refer for abortions.” (Emphasis added.) In contrast, § 59.8(b)(5) provides that when a woman asks for information on abortion, the grantee is permitted to “tell[ ] her that the project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion”; it is permitted to “tell[ ] the client that the project can help her to obtain prenatal care and necessary social services, and provide[ ] her with a list of such providers from which the client may choose.”
Thus, the express prescriptions and proscriptions in the regulations require the grantee to emphasize prenatal care and prohibit it from identifying any entity as a provider of abortions. Plainly, the regulations facially discriminate on the basis of viewpoint and control the content of the grantee’s permitted speech.
In Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), the Supreme Court warned that the government may not, consistent with First Amendment constraints, manipulate subsidy programs in a way “ ‘ai[med] at the suppression of ... ideas’ ” it considers undesirable. Id. at 548, 103 S.Ct. at 2002 (quoting Cammarano v. United States, 358 U.S. 498, 513, 79 S.Ct. 524, 533, 3 L.Ed.2d 462 (1959)). In my view, just such an impermissible manipulation has occurred here.
This content restriction is all the more pernicious because it deprives a woman of her constitutionally protected right, recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), to choose whether or not she will have an abortion. The regulations at issue here prohibit the physician in a Title X facility from communicating to his patient frank and complete advice if it involves consideration of abortion. They require him, in referring his patient to other health-care providers, to identify only prenatal-care facilities. If his pregnant patient raises the subject of abortion, he is required to tell her that he cannot give her any advice or counseling on the subject. If she asks where she can get information, the regulations prohibit even an informative response.
Though the majority seems to believe that it is sufficient that the grantee is allowed to keep the “yellow pages” in its offices, a telephone book seems a poor substitute for the advice of one’s doctor. Fur*417ther, the Secretary’s interpretations of the regulations, both written and oral, reveal that the Title X grantee is not even allowed to refer the woman to the yellow pages. Thus, the written interpretation of the regulations says merely that the grantee may “keep[]” the yellow pages, while in the same sentence referring to other information that may be “provided].” 53 Fed. Reg. 2922, 2942 (1988). There is no indication in the written interpretation that the yellow pages may be “provided,” and at oral argument of this appeal, the Secretary stated that they could not.
By damming the flow of information from physician to patient, the Secretary’s regulations impermissibly impede a woman’s exercise of her constitutional privacy right. Time and again, the Supreme Court has emphasized that governmental regulation violates a woman’s right to choose between childbirth and abortion when it interferes with the information and advice she may be given by her physician. In City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (“Akron”), the Court stated that “a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision ‘free of interference by the State.’ ” Id. at 429-30, 103 S.Ct. at 2492-93 (quoting Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 731). In Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) ("Thornburgh”), the Court disapproved a requirement that a physician provide a woman with a list of agencies offering alternatives to abortion, finding it to be “nothing less than an outright attempt to wedge the [state]’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician.” Id. at 762, 106 S.Ct. at 2179.
Unlike the regulatory schemes in such cases as Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), in which the regulating authority was found merely to have refused to extend an affirmative benefit to women who freely chose abortion, but not to have placed obstacles in the way of an informed choice, the Secretary’s regulations here plainly interfere with the pregnant woman’s freedom to decide which course of action she prefers. In some cases, the information ban will delay the appropriate education of the patient to such an extent that she is denied any genuine choice. In some cases, the patient will never be fully informed, for as the Secretary has acknowledged, “[f]or many clients, family planning programs are their only continuing source of health information and medical care.” U.S. Dep’t of Health and Human Services, Program Guidelines for Project Grants for Family Planning Services § 9.4 (1981). These regulations prevent such a program from giving the client any substantive information regarding abortion as an option; if she asks where she may obtain such information, her Title X physician is prohibited from telling her.
By prohibiting the delivery of abortion information and prohibiting communication even as to where such information can be obtained, the present regulations deny a woman her constitutionally protected right to choose. She cannot make an informed choice between two options when she cannot obtain information as to one of them.
In sum, I would rule that just as a “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 2177 (quoting Akron, 462 U.S. at 444, 103 S.Ct. at 2500), the government may not forbid the delivery of certain information in order to promote an uninformed choice.
I would also rule that the new regulations on counseling and referral are arbitrary and capricious. Certainly the proscription of § 1008, i.e., that “[n]one 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, does not on its face require a ban on the communication of information or on grantees’ directing a pregnant woman to a non-Title X entity from which she can obtain information and counseling on abor*418tion. The Secretary’s prior interpretation was that “the provision of information concerning abortion services [and] mere referral of an individual to another provider of services for an abortion ... are not considered to be proscribed by § 1008.”
Nor has practice suggested that the Secretary’s about-face was needed for enforcement purposes. Regulations embodying the prior interpretation were in effect for some 17 years, and the Secretary cites no abuse of the prior regulatory scheme. Indeed, a 1982 report of the U.S. General Accounting Office, following review of grantee compliance with the strictures of Title X and the regulations thereunder, found “no evidence that title X funds had been used for abortions or to advise clients to have abortions,” and “no indications that any women were ... encouraged to have abortions.” Rather, at oral argument of this case in the district court, the Secretary admitted that his new regulations were the result of a shift in the political climate. Thus, he stated that
it is certainly true that one of the prime reasons for these regs is a stricter enforcement of the separation of abortion as family planning from Title X programs. That is a matter of policy. It is a matter of politics.