By Anna Schwartz
Anna Schwartz is a sophomore at the University of Pennsylvania studying Political Science, French, and Economic Policy.
The Supreme Court plans to deliberate a loaded question this year: does a California law requiring anti-abortion pregnancy clinics to advertise their unlicensed status and the availability of state family planning and abortion services violate the first amendment?
National Institute of Family and Life Advocates v. Becerra questions the constitutionality of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (Reproductive FACT). In 2015, this law was passed as a response to non-medical crisis pregnancy centers (CPCs) which advertise themselves as reproductive health clinics. CPCs often spread misinformation and dissuade women from getting abortions.
The Reproductive FACT mandates that licensed pregnancy facilities provide information about the availability of state funded low-cost and free services such as FDA-approved contraception and abortions. It also orders the clinics to disclose if they are not licensed by the state . The National Institute of Family and Life Advocates (NIFLA) sued former CA Attorney General Kamala Harris, claiming that the act obstructs freedoms of speech and exercise. Xavier Becerra agreed to protect the law when he succeeded Harris as Attorney General.
Some of the arguments in the case concern the appropriate amount of judicial scrutiny for the Reproductive FACT. When legal courts decide scrutiny, they choose between three levels. Strict scrutiny applies to a law that violates a fundamental right. The government must prove that laws of this kind are narrowly tailored to achieve an interest of the state. Intermediate scrutiny is less harsh, demanding that the government prove laws relevant to an objective. Finally, a rational basis review requires the person challenging the law (rather than the government) to demonstrate that laws are not connected to government interests . Scrutiny seems like technical nomenclature at first glance, but it is important to the judgment of of the FACT case.
In the Southern District of California court, judges sided with Becerra. They decided that Reproductive FACT does not restrict speech or religion. The Ninth District Court affirmed this decision, rejecting NIFLA’s petition for strict scrutiny. They characterized the speech of the NIFLA as professional because it occurs in a physician’s waiting room. It is thus subject to intermediate scrutiny, and it passes this standard because it contributes to public health and information. In other words, NIFLA asserted that the Reproductive FACT violates its freedom of speech by requiring clinics to post information about state family planning clinics. The lower and district courts countered with the reasoning that, although the law compels content-based speech, it does not discriminate based on viewpoint. Every type of unlicensed clinics must follow these rules. The distinction between private speech and commercial/professional speech is important. Private speech is protected by the first amendment, but commercial and professional speech are not.
The Ninth District Court upheld the provision of the act which calls for the disclosure of non-licensed statuses, without deciding the type of speech. This subjects the law to a lower level of scrutiny. However, the court maintained that the mandate passes any level of scrutiny because it is narrowly tailored to serve California’s “compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state” .
As the case entered the Supreme Court docket, Becerra successfully appealed for a writ of certiorari . Courts agree that NIFLA’s religious freedoms are not jeopardized. The writ consequently notes that the Supreme Court may only consider arguments about the act’s threat to freedoms of speech.
NIFLA argues that the Reproductive FACT aims to promote the government’s message about how to obtain state funded abortions and contraceptives . The organization explains that the required posts express subjective views. Thomas Glassner, the founder and president of the NIFLA finds it “scandalous that the law allows a multimillion-dollar abortion industry to bully small nonprofits” . He believes that CPCs are being forced to promote certain practices. The NIFLA also disputes the commercial speech label that the lower courts gave the clinics. It claims that the clinics are nonprofit advocacy groups, and therefore engage in private speech. The Christian Medical and Dental Associations add that the Act does not regulate informed consent . Since their services are free, the centers feel entitled to the liberties of interest groups. They do not assume an obligation to tell patients about services that they do not advise.
Meanwhile, the state of California counters that women have the right to learn about their health care possibilities. The abortion-rights group NARAL Pro-Choice California contends that the clinics intimidate women and mislead them about their choices. In a Supreme Court filing, women’s rights groups estimate there to be between 2,500 to 4,000 CPCs, while there are fewer than 1,500 abortion providers . Justice Sotomayor visited a center’s website and found it misleading. She reported seeing an image of a nurse next to an ultrasound device, mentions of abortions, and an indication of compliance with medical privacy laws . Becerra also holds that the FACT act regulates professional speech. He resolves CA should be granted broader powers to regulate the information posted in CPCs than other forms of speech.
Ironically, the fall of the act would not necessarily be a victory for pro-life groups. Laws in eighteen states compel abortion centers to provide false information about abortions to patients. Thirteen states include the fact that pre-viable fetuses can feel pain. Eight states include the connection between abortion and mental health problems, and in South Dakota, suicide. Five states include the link between abortion and breast cancer. None of these correlations are supported by scientific evidence . Similarly, a Bacerra win would strike down laws that promote anti-abortion propaganda. The only way around this precedent would be the differentiation by judges between doctors and medical practices from licensed non-medical CPCs. No matter the outcome, Supreme Court justices will have to deliberate the nuanced implications of each aspect of National Institute of Family and Life Advocates v. Becerra.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.