Today the U.S. Supreme Court ruled that pregnancy help centers are likely to succeed in a challenge to a California law forcing them to advertise for abortion.
The case isn’t over. It will go back to the trial court for additional fact finding and then a final ruling on the legal issues.
But the ruling is a major legal victory for pregnancy help centers. Hostile pro-abortion legislatures have targeted pregnancy centers throughout the nation. As Justice Anthony Kennedy wrote in a concurring opinion today, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
Today’s ruling affirms and defends the constitutional rights of pregnancy centers.
The Challenged Law
The case is called National Institute of Family and Life Advocates v. Becerra.
In this case pregnancy help centers challenged a California law known as the Reproductive FACT Act.
As described by the Supreme Court, “the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services—one for licensed facilities and one for unlicensed facilities.”
The First Notice – Licensed Facilities
“If a clinic is a licensed covered facility,” the Court explains, “the FACT Act requires it to disseminate a government-drafted notice on site.”
The notice states that “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
In the words of the Court, “California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest,” the Court writes, “the licensed notice is not sufficiently drawn to achieve it.”
The Court explained, “If California’s goal is to educate low-income women about the services it provides, then the licensed notice is ‘wildly underinclusive’” (internal citation omitted). The notice applies only to clinics that have a ‘primary purpose’ of ‘providing family planning or pregnancy-related services’ and that provide two of six categories of specific services.”
In addition, the Court wrote, “California could inform low-income women about its services without burdening a speaker with unwanted speech” (internal quotes and citation omitted).
In the view of the Court, California “could inform the women itself with a public information campaign.”
“California could even post the information on public property near crisis pregnancy centers.”
“Either way,” the Court writes, “California cannot co-opt the licensed facilities to deliver its message for it.”
The Second Notice – Unlicensed Centers
The second notice challenged in this case applies to unlicensed centers.
- “Unlicensed covered facilities must provide a government drafted notice stating that [t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services” (internal quotations and citation omitted).
- “This notice must be provided on site and in all advertising materials.”
- “Onsite, the notice must be posted ‘conspicuously’ at the entrance of the facility and in at least one waiting area.”
- “It must be ‘at least 8.5 inches by 11 inches and written in no less than 48-point type.’”
- “In advertisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it.”
- “Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law.”
The Court powerfully illustrated how burdensome this notice requirement was. “As California conceded at oral argument,” the Court wrote, “a billboard for an unlicensed facility that says ‘Choose Life’ would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages.”
As the Court comments, “In this way, the unlicensed notice drowns out the facility’s own message.”
The Court concluded that this notice requirement “unduly burdens protected speech.”
In the words of the Court, “The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest.”
The Court also observed that the notice requirement “covers a curiously narrow subset of speakers.”
The Court noted it was expressing “no view on the legality of a similar disclosure requirement that is better supported or less burdensome.”
Court Protects Informed Consent Laws
One question was whether a ruling striking down the notice requirements of the FACT Act could threaten informed consent laws that require abortionists to provide women with crucial information needed to make an informed decision about abortion.
In the section of its opinion addressing the notice requirements imposed on licensed centers, the Court clearly and unequivocally concluded that the unconstitutional burden imposed on licensed centers by the FACT Act is different from the legitimate requirements of informed consent laws.
“In Planned Parenthood of Southeastern Pa. v. Casey,” the Court wrote, “this Court upheld a law requiring physicians to obtain informed consent before they could perform an abortion.” The Court explained that “[t]he joint opinion in Casey rejected a free-speech challenge to this informed-consent requirement. It described the Pennsylvania law as ‘a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion,’ which ‘for constitutional purposes, [was] no different from a requirement that a doctor give certain specific information about any medical procedure’” (internal citation omitted).
In contrast, the notice requirement imposed on licensed centers by the FACT Act, the Court wrote, “is not an informed consent requirement or any other regulation of professional conduct.”
The Court continued, “The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”
Justice Kennedy Slams California for Imperiling Liberties Protected by U.S. Constitution
Justice Kennedy joined the 5-4 majority opinion authored by Justice Clarence Thomas. But Justice Kennedy also wrote a separate concurring opinion that was joined by Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsuch.
In his concurrence, Justice Kennedy slams California for imperiling important constitutional liberties. Justice Kennedy also raises the “real possibility” that pregnancy centers were targeted by California because of their pro-life beliefs.
Here is an extended quote from Justice Kennedy’s concurring opinion:
It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking.’ (Internal citation omitted.) But it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’ Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
Pregnancy Centers Provide Vital Social Services
The Lozier Institute had submitted an amicus curiae brief in this case that extensively documented the vast social good pregnancy centers provide to their communities. That brief set out findings including the following:
- “More than 2,750 Pregnancy Help Centers (‘PHCs’) nationwide provide vital social and, in some cases, medical services to vulnerable mothers and children.”
- A major study on PHCs found that, in the words of that study, “In 2010, [PHCs] served over 2.3 million people with pregnancy assistance, abstinence counseling and education, community outreach programs and referrals, and public health linkages.”
- The same study reported that, in the words of that study, “[a] conservative estimate of community cost savings for these services during 2010 is over $100 million.”
A new study of pregnancy center services, to be released by the Lozier Institute in the near future, shows that these annual community cost savings have risen to at least $161 million.
Today’s Supreme Court ruling in the NIFLA case, though not final due to the preliminary nature of the case, provides significant legal protection to pregnancy help centers and the immensely valuable services they offer.
Thomas M. Messner, J.D. is a senior fellow in legal policy at the Charlotte Lozier Institute.