by The Daily Signal | Updated on 3.27.18
Elizabeth Slattery writes about the proper role of the courts, judicial nominations, and the Constitution as a legal fellow at The Heritage Foundation. Read her research. She co-hosts SCOTUS101, a podcast about everything that’s happening at the Supreme Court.
How far can a state go to promote its views on abortion?
Can it force crisis pregnancy centers that support women who face a difficult or unplanned pregnancy to advertise the state’s free abortion program? Can it mandate resource centers that provide counseling, education, and baby supplies to include in their ads a lengthy disclaimer in up to 13 languages?
These are the issues the Supreme Court heard Tuesday in the case, National Institute of Family and Life Advocates v. Becerra.
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Three lawyers appeared before the justices. One is Michael Farris, president of Alliance Defending Freedom, who represented pro-life crisis pregnancy centers that object to these requirements.
Some of the centers represented by Farris are licensed medical providers that perform pregnancy tests, ultrasounds, and other prenatal care, and the state of California is trying to force them to post signs with information about free abortions.
Other centers are unlicensed and do not provide medical care but offer free resources for pregnant women in need. California would require them to include a 29-word disclaimer in their ads, effectively drowning out their message.
Jeffrey Wall, deputy solicitor general of the United States, represented the federal government, which filed a brief supporting neither side. Joshua Klein, deputy solicitor general of California, defended the state’s law.
The justices peppered all three advocates with questions. Here are seven key exchanges from the oral argument.
1) Comparisons to Informed Consent
During Farris’s introduction, Justice Ruth Bader Ginsburg jumped in, asking why posting the notice isn’t just like requiring a doctor to provide informed consent before performing an abortion.
Farris explained that providing informed consent turns on whether there is a medical intervention. States may require doctors to discuss the risks of an abortion before performing the procedure, as the Supreme Court held in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and this can include discussion about alternatives to abortion.
But here, the pregnancy centers aren’t performing medical procedures yet they would be forced to advertise California’s free or low-cost abortion program to every person who enters the building.
Justice Samuel Alito asked whether the state could require all doctors treating pregnant women to post a notice with the full range of options available to them, including services not performed at that center. Farris explained that there could be a problem with that if doctors objected to performing abortions, but what the state did here is target pro-life centers and force them to advertise for abortions.
Justice Stephen Breyer said he saw this case as the pro-choice version of the Casey case. Breyer mused that a ruling for California would be even-handed because “the sauce for the goose is sauce for the gander.” Farris explained that this would politicize the practice of medicine.
2) A Statute Riddled With Exemptions
Breyer pointed out that 60 to 70 centers exist throughout California, and asked if the trial court should develop the record on whether the law is targeting these clinics before the Supreme Court rules.
Farris responded that the gerrymandering is evident on the statute’s face. It contains so many exemptions (for doctors in private practice, general medical clinics, and pregnancy clinics that perform abortions) that the pro-life centers are practically the only ones that would be forced to post the state’s abortion notices.
Later, when California’s Klein stepped up to the podium to defend the law, Alito wanted to know why the state exempted so many other doctors and medical facilities from the notice requirement. While the law appeared neutral on its face, Alito said, the number of exemptions uncovered a “strange pattern” that could amount to intentional discrimination against pro-life centers.
Klein said the notice, which was intended to inform low-income pregnant women about the state’s free services, would be posted in places where it would be most useful. Those places tended to be pro-life pregnancy centers, since they provide free services.
Alito followed up, pointing out that an amicus brief concluded that 98 percent of facilities that would be required to post the notice are pro-life centers. That is not accurate, Klein said, but the state doesn’t have a “firm number.”
3) Are Unlicensed Centers Misleading Women?
Justice Sonia Sotomayor turned the conversation toward the unlicensed pregnancy centers. She implied that these centers could be misleading pregnant women. She visited the website for one clinic, which included a photo of a nurse with an ultrasound machine and language saying it followed all HIPAA regulations.
Sotomayor wanted to know whether a reasonable person would think this was a medical facility. Farris explained that it’s illegal to practice medicine without a license, or to pretend to have a license to practice medicine, and other laws on the books could address those concerns.
Justice Elena Kagan asked the state’s lawyer if the 2015 law was designed to help low-income pregnant women who may not have access to information about the state’s programs, or if was supposed to prevent pregnancy centers from misleading women.
“The former,” Klein said. At that point, Justice Neil Gorsuch pointed out that it is “unusual” to force a private speaker to educate people about their rights when there are plenty of other options.
Gorsuch asked whether it would be better to prosecute any unlicensed centers for misleading women under the state’s consumer fraud protections rather than to burden their free speech.
Ginsburg followed up, asking whether California had brought charges against any of the unlicensed pregnancy centers for misleading women. Klein responded that it had not, but he believed the city of San Francisco may have.
4) Onerous Requirements for Ads
Justice Anthony Kennedy asked Farris whether an unlicensed center ran a billboard that read “Choose Life,” would it have to include the disclosure in the same font and in multiple languages? Wouldn’t that be an undue burden?
The question came up later in the argument, when Sotomayor asked Klein whether an unlicensed center that had a billboard simply saying “Pro-Life,” and included contact information, would have to include the disclaimer.
Before Klein could answer, Chief Justice John Roberts asked whether an adoption agency that ran an ad would have to include the state’s disclaimer. Klein said it wouldn’t, because the state’s interest was in centers that provide medical care.
“At what point would an adoption center have to post the disclaimer?” Roberts asked. “What if the center provided pregnancy testing?”
The chief justice was trying to determine the limit of California’s argument, and Klein responded that the adoption agency probably would not have to include the disclaimer.
Sotomayor pointed out that an unlicensed center had to offer at least two kinds of services before the disclaimer requirement kicked in, including prenatal care, pregnancy testing, and ultrasounds. She then returned to her hypothetical “Pro-Life” billboard.
Klein said the disclaimer would be required only if the billboard advertised one of those services. Perhaps he misspoke, but Alito interrupted, sharply saying, “No. … Show me where that is in the statute. If it’s a covered facility, then any ad they put out … has to include the disclaimer.”
5) Posting Services
When Wall, the nation’s deputy solicitor general, stepped up to the lectern, Ginsburg said she wanted to know whether the state could require clinics to post a sign listing all of their services. She compared it to the federal Food and Drug Administration requiring food manufacturers to list ingredients on their labels.
That would be permissible, Wall said, because it’s simply requiring pregnancy centers to post truthful, factual information about their services.
Roberts interjected, asking whether the state then could require the centers to list other services, whether or not they were available. Wall responded that such a requirement would trigger heightened scrutiny and may not be permissible.
6) ‘Professional Speech’
Alito pressed Wall on what level of scrutiny should apply here, pointing out that the federal government calls this a regulation of “professional speech”–a category the Supreme Court has never recognized.
Alito said there would be “far-reaching consequences” if the high court adopted a lower standard of scrutiny for “professional speech” that could affect journalists, economists, climate scientists, and many other professions. Wall replied that a lower level of scrutiny should be applied to professionals such as doctors, lawyers, and accountants when they are required to make disclosures related to their services.
Wall concluded: “To hold those regulations to a higher standard of review [strict scrutiny] would dilute it and undermine the First Amendment.”
7) Ads in 13 Languages
Ginsburg asked about the California law’s requirement that the disclaimer srun in several languages (up to 13).
“It’s one thing to say you’re not licensed, but in 13 languages?” Ginsburg said. “That’s burdensome.”
Klein acknowledged that this requirement “could be unconstitutional,” but said that a pregnancy center would need to bring a lawsuit and provide evidence of the burden.
Kennedy retorted: “You want me to have a remand for them to tell the court what a billboard is?”
After an hour of argument, some justices appeared to be concerned about the burden the California law places on free speech, and the fact that it clearly targets pro-life pregnancy centers. Even liberal justices seemed troubled by the arduous requirements of this law.
Now the justices will consider how to rule, and issue an opinion by the end of June. Hopefully, the court will rule in favor of the challengers and recognize that states may not impose their views on highly controversial political issues, such as abortion, on private entities.
Written by The Daily Signal
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