dissenting in part.
With the apparent exception of the separation requirements contained in 42 C.F.R. § 59.9,1 the court today holds unconstitutional the 1988 amendments to the HHS regulations, 42 C.F.R. §§ 59.1-59.17, designed to implement the purpose of Section 1008 of Title X of the Public Health Services Act, 42 U.S.C. § 300a-6. According to the court, the limitations placed upon Title X recipients by the regulations, namely § 59.8, facially violate a pregnant woman’s fifth amendment right to choose abortion and her physician’s first amendment right to speak frankly about abortion. Because Supreme Court precedent dictates a contrary result, I dissent.
I.
The court reasons that Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), control the outcome of this case. Court’s Opinion at 1501-02. In those cases, however, the Supreme Court struck down “informed consent” laws that required all doctors within their respective jurisdictions to provide all pregnant patients contemplating abortion with a litany of information, regardless of whether the patient sought the information or her doctor thought the information necessary to the patient’s decision to abort. Thorn-burgh and Akron had nothing to do with a governmental decision to encourage child*1505birth and discourage abortion through the funding of services relating to the former and not the latter.
The possibility that the HHS regulations will discourage some women from having an abortion is hardly sufficient to invalidate those regulations on their face.2 See Thornburgh, 476 U.S. at 829, 106 S.Ct. at 2214 (O’Connor, J., dissenting). Webster v. Reproductive Health Servs., - 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), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), all support the view that the allocation of government monies to encourage childbirth over abortion does not unduly burden a woman’s right to seek an abortion or place a governmental obstacle in the path of a woman choosing to have an abortion. Yet this court rejects this line of decisions as bearing only a “superficial resemblance” to the instant case. Court’s Opinion at 1499.
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), imposes “no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Maher, 432 U.S. at 474, 97 S.Ct. at 2382 (emphasis added). Section 59.8’s restrictions on abortion counseling and referrals for Title X recipients leaves a pregnant woman with essentially the same choice as if the government had chosen not to provide Title X grants at all. Admittedly, this analysis might differ if the government had socialized medicine, see Webster, 109 S.Ct. at 3052 n. 8, but the government has not. At this point, the regulations interfere with a woman’s ability to obtain an abortion only if she seeks an abortion with the assistance of Title X funds. See id. at 3052. The inability of an indigent woman to obtain an abortion would be no less in the absence of Title X. See Harris, 448 U.S. at 316, 100 S.Ct. at 2687. Accordingly, the HHS regulations do not infringe upon a woman’s right to abortion.
II.
The regulations, however, undoubtedly infringe upon the doctor-patient relationship by limiting the free flow of information from the doctor to the patient regarding abortion services. As Judge Carda-mone stated: “[A] Title X physician’s hands are tied with respect to the response he or she may give to a patient seeking abortion information_ [The regulations] constitute^ a trap for the mostly unsophisticated and unwary patients, and jeopardizes the ability of Title X physicians to safeguard the health of those people seeking their expert advice.” State of New York v. Sullivan, 889 F.2d 401, 415 (2d Cir.1989) (Cardomone, J., concurring), cert. granted, - U.S. -, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990).
A physician certainly has a common law duty to discuss matters openly and frankly with the patient. See Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 355 (1986) (Souter, J., concurring) (physician’s timely disclosure of professional limits based on moral scruples combined with timely referral to physician not so constrained may be sufficient defense in action for failure to advise). Yet the Constitution provides little protection for the “dialogue” a physician undertakes in the course of treating a patient. Thornburgh, 476 U.S. at 802, 106 S.Ct. at 2200 (White, J., dissenting). Regulation of the professions is a matter within the competence of lawmakers, not federal courts. Id. at 802-803, 106 S.Ct. at 2200-2201 (Constitution is “largely unconcerned” with substantive aspect of professional regulation). Because the HHS regulations are rationally related to the governmental interest in “protecting potential life,” they in no way infringe upon a physician’s constitutional rights. See Akron, 462 U.S. at 466, 103 S.Ct. at 2511 (O’Connor, J., dissenting).
The first amendment does not require the government to subsidize the spread of information which as a matter of public policy the government finds repugnant. *1506Regan v. Taxation with Representation, 461 U.S. 540, 546, 103 S.Ct. 1997, 2001, 76 L.Ed.2d 129 (1983). Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), cited by the court to support its holding that the regulations violate a physician’s first amendment rights, is not to the contrary. Court’s Opinion at 1503. In Perry, a state supported employer refused to extend the contract of its employee because the employee had exercised his first amendment rights outside the scope of his employment. Nothing in Title X prohibits recipients from saying about abortion whatever they desire outside of Title X services. State of New York, 889 F.2d at 412-13. Moreover, in Perry, the employer’s purpose in suppressing the speech was not to avoid subsidizing the speech, but rather to punish the employee for political activity. See FCC v. League of Women Voters, 468 U.S. 364, 402, 408, 104 S.Ct. 3106, 3129, 3132, 82 L.Ed.2d 278 (1984) (Rehnquist, J., dissenting).3 Unlike this case, the state action in Perry was unrelated to any legitimate governmental objective. Through the HHS regulations, the government in this instance merely has chosen to encourage childbirth rather than abortion. That policy choice in no way contravenes the Constitution.4
. In part II of its opinion, the court holds § 59.9 invalid as contrary to Congressional intent. Court’s Opinion at 1496-98. I agree. The aim of Title X is to increase and improve family planning services to indigents in cooperation with existing state and private programs. In enacting Title X, Congress did not intend "to restrict the types of projects with which a Title X recipient could associate, or to place limitations on the physical proximity or the sharing of personnel between Title X projects and unrelated programs which may provide abortion services.” Commonwealth of Mass. v. Bowen, 679 F.Supp. 137, 143 (D.Mass.1988), aff'd, 899 F.2d 53 (1st Cir.1990), cert. pending, No. 89-1929 (June 8, 1990). Because I concur fully in the court’s statutory resolution of the challenged regulations, neither I nor the court have occasion to address § 59.9's constitutionality. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2682-2683, 65 L.Ed.2d 784 (1980) (where case may be decided on either statutory or constitutional basis, court should decide case on statutory basis and avoid constitutional adjudication). Since the court, however, assumes the severability of § 59.9 from the remaining regulations, the constitutionality of those regulations is at issue. See Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (statutory severability).
. A facial challenge to the regulations is a most difficult challenge since the challenger must establish that the regulations would be invalid under all circumstances. That the regulations might operate unconstitutionally under some scenario is insufficient to render the regulations invalid on their face. Webster v. Reproductive Health Servs., - U.S. -, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410 (1990) (O’Connor, J., concurring).
. In League of Women Voters, the Court by a five to four vote held unconstitutional a congressional ban on editorializing by noncommercial educational television and radio stations where federal funding constituted only 1% of the stations’ overall income. In contrast, federal funds account for 50% of the monies received by Title X recipients. Court’s Opinion at 1498.
. In United Pub. Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) and Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Supreme Court rejected the notion that Section 12(a) of the Hatch Act was unconstitutional because of its interference with an employee’s freedom of expression in political matters. In his dissent in League of Women Voters, Justice Rehnquist cogently noted:
Section 12(a) of the Hatch Act totally prohibits any local or state employee who is employed in any activity which receives partial or total financing from the United States from taking part in any political activity. One might just as readily denounce such congressional action as prohibiting employees of a state or local government receiving even a minor fraction of that government’s income from federal assistance from exercising their First Amendment right to speak.
468 U.S. at 406, 104 S.Ct. at 3131 (Rehnquist, J., dissenting). Of course, political association constitutes the "core of those activities protected by the first amendment.” Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976). But the first amendment does not prohibit government from regulating the public political activity of those even partially dependent on its monetary benefits. How then, can the first amendment be read to prohibit a restriction on the dialogue between a physician and patient, when the physician and patient rely on federal funding to carry on such dialogue?