WASHINGTON — Justices on both sides of the U.S. Supreme Court’s ideological divide sharply questioned a California law that requires licensed pregnancy centers to post contact information for free abortions.
During the March 20 oral arguments in National Institute of Family and Life Advocates v. Becerra, the state pregnancy centers asserted that the California Reproductive FACT Act violated the protections set forth in the Free-Speech Clause of the First Amendment. And liberal Justices Elena Kagan and Sonia Sotomayor, as well as Justice Anthony Kennedy, the high court’s closely watched “swing vote,” appeared sympathetic to the clinics’ predicament.
“Justices across the spectrum expressed skepticism about the California law,” said Mark Rienzi, the president of Becket, the public interest group that has played a lead role in a string of landmark religious-freedom cases before the U.S. Supreme Court. Becket also represents EWTN Global Catholic Network, the Register’s parent company, in its legal challenge to the Health and Human Services’ contraceptive mandate.
“Justice Kennedy had several strong questions indicating that he thought California had deliberately targeted pregnancy centers,” Rienzi told the Register.
The state law requires licensed centers, which provide procedures like pregnancy tests and ultrasound examinations, to post contact information for free and subsidized abortion and contraceptive services. Unlicensed pregnancy centers must post large-type signs, in multiple languages, stating that the facility is not licensed to provide medical services, a requirement that drew special scrutiny.
Responding to the charge that the law had been specifically tailored for pregnancy centers and did not mandate similar rules for other medical providers, Justine Kagan said, “If it has been gerrymandered, that’s a serious issue.”
Justice Kennedy wanted to know whether the disclosure law would apply if an unlicensed center posted a billboard with the words, “Choose LIfe.” Must the clinic also post the mandated 29-word notice about its unlicensed status?
When Michael Farris, the clinics’ lawyer, agreed that the notice would be required, Kennedy suggested the statute posed an “undue burden” on the clinics’ speech rights, and “that should suffice to invalidate the statute.”
The pregnancy clinics’ immediate goal is to obtain a preliminary injunction that would suspend implementation of the law; a lower court did not conduct a full trial. But the justices could also issue a more decisive ruling that would effectively overturn the statute.
Farris, who also serves as the the president, CEO and general counsel of Alliance Defending Freedom, the Christian legal group representing the California pregnancy centers, underscored the critical free-speech issues at stake.
“A.B. 775 specifically targets these small nonprofit organizations that exist to provide women with life-affirming information they may not otherwise receive,” said Farris in a statement released after the oral arguments.
“Other federal courts have already recognized that this type of government-compelled speech violates the foundation of the freedom we have in America. … In fact, courts have invalidated or mostly invalidated similar laws in Texas, Maryland and New York City.”
As the justices peppered Farris and Joshua Klein, California's deputy state solicitor general who argued for the state, with questions about the law’s practical impact, pro-life activists gathered in front of the Supreme Court undaunted by the soggy, cold weather. The rally, which also attracted some supporters of the California law, underscored the case’s importance for California’s embattled pregnancy centers.
Marie Leatherby, the executive director of the Sacramento Life Center, a licensed pregnancy clinic located near the California Capitol, stood in line for most of the previous evening to secure a seat for the oral arguments.
“All the justices were very engaged, asking good, fair questions. They really wanted to understand the case and what was going on in California,” Leatherby told the Register, noting that about a dozen clinic directors had traveled from California for the occasion.
“The justices talked a lot about the burdensome advertising and the burdens on clinics that must post signs in 13 languages.”
An early opponent of the state law, Leatherby initially refused to post the required information at her clinic. But after hostile news coverage threatened the clinic’s funding, she posted the mandated disclosure.
“We felt the law was a violation of our conscience and freedom of speech,” she said. “Women we are trying to help in a crisis have to read information about where they can get a free abortion. It is advertising for the abortion industry. It is compelled speech and against everything we are about.”
Abortion Lobby’s Arguments
Still, as the case has moved through the courts, and was upheld by the 9th Circuit Court of Appeals, abortion-rights advocates have strongly countered claims that the law promotes viewpoint discrimination.
“The FACT Act has the viewpoint-neutral goal of reducing consumer deception and protecting the public health,” said Julie Rikelman, the senior director of litigation at the Center for Reproductive Rights, in a legal analysis for SCOTUSblog. “It discriminates among speakers based not on their viewpoints, but on the likelihood of consumer confusion. That the act may have a disproportionate impact on certain types of pregnancy-related centers is irrelevant for First Amendment purposes.”
The law’s supporters also note that the Supreme Court upheld a Pennsylvania law that directed physicians who provide abortion to offer additional information about adoption options. If some states can impose that requirement on an abortion provider, why can’t others, like California, mandate their own disclosure requirements?
“[W]hat is sauce for the goose is sauce for the gander,” observed Justice Stephen Breyer, who raised few questions about the state-disclosure law.
Indeed, Teresa Collett, a professor at the University of St. Thomas School of Law, acknowledged that a decision in favor of the clinics might spark legal challenges to state laws that require the sharing of information about fetal development, adoption and government programs that can provide assistance when a woman faces a crisis pregnancy. The outcome, she suggested, would depend on how the justices evaluated the scope and impact of the California law.
But she also concluded that the pregnancy centers’ lawyers, including Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the federal government, presented a strong case.
“They made the argument that the California statute targeted crisis-pregnancy centers, and if, for example, you were a physician who provides obstetrics care, you were exempt,” noted Collett.
During the oral arguments, Justice Samuel Alito tapped into this theme as he pushed back against Klein.
“If you have a law that’s neutral on its face” but then includes “a lot of crazy exemptions,” said Alito, “isn’t it possible to infer intentional discrimination?”
Disclosure laws that target specific groups, but exempt others engaged in similar work, said Collett, are "not constitutional, unless the state can show they have a compelling interest and they have used a narrowly tailored” approach to achieve it.
“That is why Justice Gorsuch asked, ‘Why aren’t the antifraud laws good enough here, if you are really concerned the centers are misleading women?’”
While the state’s lawyer cited one instance of a San Francisco clinic that allegedly misrepresented its services or provided inaccurate information, Collett circled back to the point raised by Gorsuch.
“The state’s attorney general would have the power to intervene, and they have zero history of doing that,” she said. “If they have widespread fraud going on, why are they tolerating it?”
Narrow Ruling, or Broad?
For now, at least, Marie Leatherby and other leaders of pro-life pregnancy clinics have found their spirits lifted, as they heard the justices sympathize with their plight. The question now is how far a deeply divided court will go to provide relief.
Judging by the initial coverage of the oral arguments, with a range of legal experts predicting a defeat for California, the justices may find at least some part of the disclosure law to be unconstitutional.
The court could issue a narrow or broad ruling, which could set legal precedent for other lawsuits involving pregnancy clinics. The justices could also send the case back to the lower courts for a full trial that would require the state to introduce hard evidence to support its claims against the centers.
“If I were Justice Ginsburg,” said Collett, “and opposed anything that regulates abortion, this would be my argument in the conference: We don’t know all the facts, and we need to give the state a full opportunity to present them. This was just a preliminary injunction hearing.”
Joan Frawley Desmond is a Register senior editor.