Supreme Court challenge to California law could hand abortion foes a victory—or backfire on them
Editor’s note: The U.S Supreme Court struck down California’s law known as the reproductive FACT Act on June 26, 2018. Its 5-4 ruling said requiring anti-abortion centers to post information about abortion likely violates the freedom of speech. The court also struck down the requirement that unlicensed centers disclose they are not licensed.
Should an organization that opposes abortion be required to tell women where they can seek an abortion? It’s a question the U.S. Supreme Court will face this month as it considers a challenge to a California state law.
The law in question, known as the California Reproductive FACT Act, was signed by Democratic Gov. Jerry Brown in 2015. It requires licensed “crisis pregnancy centers”—many of which are run by Christian groups whose mission is to discourage pregnant women from getting abortions—to post signs or distribute notices informing clients that the state offers subsidized programs for family planning services, including abortion. The notice must include a phone number for the closest government social services office.
The National Institute of Family and Life Advocates, which runs roughly 200 pregnancy centers in California, sued the state over the law. It argues the law infringes on its freedom of speech by compelling the centers “to speak a government message and to promote government programs contrary to their pro-life beliefs.”
The centers typically offer pregnancy tests and ultrasounds, and counsel women to carry their pregnancies to term by providing information on adoption and parenting.
“All of their speech is designed to encourage childbirth. The Act purposely hampers this advocacy at the very beginning of a pregnancy center’s interaction with expectant mothers. While the centers exist to support childbirth, the Act forces them to point the way to ending unborn babies’ lives,” the institute says in a court filing. The group did not make anyone available for an interview.
The state argues the law is necessary because some pregnancy centers were misleading women about what services they’re licensed to provide and making false claims about the risks of abortion. Its provisions also require unlicensed counseling centers to disclose in advertisements and client notices that that they aren’t licensed to provide medical care.
“Everyone is entitled to accurate information about their health care, and that’s simply what the FACT Act says,” said California Attorney General Xavier Becerra, a Democrat. “There is nothing coercive, nothing intrusive in the requirements of the law that infringe upon someone’s First Amendment rights. It’s about making sure women have accurate information about their health care.”
The case, which the Supreme Court will hear on March 20, is the latest battleground in a long legal debate at the intersection of free speech and abortion access. It highlights how much a state’s approach to abortion is shaped by its politics—and could wind up as a pivot point in the national debate over the issue.
In blue states like California and Hawaii, Democrats who support abortion rights have approved laws requiring pregnancy centers to notify women that abortions are available elsewhere. In red states, Republicans who oppose abortion have passed laws requiring doctors to tell women seeking them various specific statements: abortion ends “the life of a whole, separate, unique, living human being” (South Dakota); the father is liable for child support (Georgia); she can review a booklet prepared by the state that says the “unborn human individual” in her womb has a heartbeat (Arkansas). Both types of notifications have been challenged on grounds that they violate the First Amendment right to free speech.
In a fascinating legal twist, California is defending its Reproductive FACT Act in part based on a ruling that supports notifications in other states that abortions-rights proponents have challenged. The state’s legal brief cites a 1992 case in which Planned Parenthood sued the state of Pennsylvania over a law that requires doctors tell women seeking abortion that the state offers brochures with information about fetal development, as well as the availability of adoption, paternal child support and other alternatives to abortion. The U.S. Supreme Court rejected Planned Parenthood’s First Amendment challenge and upheld the Pennsylvania law, saying speech by licensed professionals in the practice of their professions is “subject to reasonable licensing and regulation by the State.”
If the court rules that California’s law is unconstitutional, some legal scholars say it could set the stage for abortion-rights groups to challenge a host of laws in conservative states that require doctors to make specific statements before performing abortions.
“If one decides this case based on the principle that the government cannot compel someone to say something they are opposed to, then I think all of those laws are challengeable,” said Wendy Mariner, a Boston University professor of health law. “That is a real issue.”
Other legal scholars say the situations are different and that striking down the California law wouldn’t impact states with anti-abortion notification laws. Richard Garnett, a professor at Notre Dame Law School, said the pregnancy centers shouldn’t be held to the same standard for required speech because they exist to offer “pro-life” counseling, not a medical service.
“There is an important distinction between making sure someone about to have a procedure knows about it, as opposed to telling a nonprofit they have to tell someone about a procedure they are morally opposed to and don’t plan to provide,” Garnett said.
The California law was written with major input from NARAL Pro-Choice California and then-Attorney General Kamala Harris, after a report by the abortion-rights group indicated that many pregnancy centers in California counseled women against abortion by incorrectly saying it would increase their risk of breast cancer and infertility. NARAL’s report also noted that many centers did not disclose their ideological affiliation upfront, misleading women into thinking they were mainstream health clinics.
“Auto shops and nail salons are required to post health-related notices and so should pregnancy resource centers,” said Amy Everitt, director of NARAL Pro-Choice California.
“This bill fills a really important need for public health so that women know there are options that are supported by the state of California that they weren’t otherwise aware of.”