Kevin Daley on March 20, 2018
The U.S. Supreme Court heard a First Amendment challenge Tuesday to a California law requiring pro-life crisis pregnancy centers to post information about state-funded abortions.
A majority of justices appeared uncomfortable with the prospect that the law specifically targets pro-life groups, though regulations that apply against clinics that don’t provide medical services may survive their scrutiny.
The law, called the Reproductive FACT Act, requires crisis pregnancy centers to post a bulletin informing patients the state offers subsidized abortion access. The FACT Act requires that the advisory appear in large font in a “conspicuous place” within the clinic.
“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women,” the bulletin reads. “To determine whether you qualify, contact the county social services office at [phone number].”
The law distinguishes between licensed clinics that provide medical care, and unlicensed clinics that provide counseling and pre-natal supplies. Licensed centers must post the abortion notice, while unlicensed facilities must inform clients that they are not authorized to practice medicine. Disclaimers for unlicensed centers must appear in 13 languages and meet specific font size requirements.
The disclaimers also must appear in all advertisements outside the clinic.
Lawmakers say the Act “ensures that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.”
Hawaii and Illinois have similar laws.
A coalition of pro-life groups led by the National Institute of Family and Life Advocates (NIFLA) challenged the law, arguing they are being forced to promote a state message with which they disagree, in violation of the First Amendment. They claim California’s stated interest — ensuring citizens make informed healthcare choices — is little more than a pretext for targeting anti-abortion clinics, as other healthcare providers like community medical centers or private physicians are exempt from the law’s requirements.
“The FACT Act’s gerrymandered scope, compulsion to facilitate abortion, burdensome advertising demands, and overbearing paternalism demonstrate California’s unconstitutional attempt to disadvantage ‘one side of a debatable public question’ in its efforts to ‘express its views to the people,’” NIFLA’s final brief to the court reads.
“The First Amendment does not permit California to manipulate the marketplace of ideas in this way,” it adds.
Justice Samuel Alito seemed to agree, telling California deputy solicitor general Joshua Klein that the law’s exemptions struck him as dubious.
“When you put all this together you get a very suspicious pattern,” he said.
Justice Elena Kagan also appeared sympathetic to this concern, wondering why the state legislature determined the FACT Act should apply against specific groups, instead of all providers. Elsewhere in the argument, Kagan and Justice Ruth Bader Ginsburg suggested that the states could simply require providers to clearly disclose the services they offer, instead of promoting procedures with which they may disagree.
Klein countered that the best way to reach pregnant women is at a point of service, and not through a generalized public education campaign.
“The goal of the statute is to identify women who are seeking pregnancy care and appear unable to pay for it themselves or through insurance or public coverage they already have,” he said. “That’s why it’s targeted at free clinics.”
Justice Neil Gorsuch was not persuaded.
“If it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” he asked.
Justice Anthony Kennedy asked if a clinic that erected a billboard that simply read “Choose Life” would have to print the mandated notice on the placard. Klein eventually answered affirmatively, prompting an incredulous response from Justice Sonia Sotomayor, who was otherwise skeptical of NIFLA’s position.
“That seems to me more burdensome and wrong because it’s not tied to an advertisement that is promoting medical services,” she said.
Justice Stephen Breyer gestured toward a compromise, arguing the court does not have enough empirical evidence to make an informed decision.
The U.S. Department of Justice charted a middle way, arguing the regulations on unlicensed clinics are permissible, while the regulations on licensed clinics are unconstitutional. Federal courts, they noted, have generally allowed states to regulate “professional speech,” that is, speech made by licensed professionals like lawyers or doctors relating to the services they provide. They further said that states may lawfully compel disclosures relating to commercial services, as long as the information is factual and uncontroversial.
Alito pushed back on this point, telling Principal Deputy Solicitor General Jeffrey Wall that he was asking the court to create a new category of speech that the government can easily regulate. Wall argued for 10 minutes on the Trump administration’s behalf during Tuesday’s proceedings.
A decision in the case, NIFLA v. Becerra, is expected by June.
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