The Supreme Court on Tuesday will wade into a charged debate on abortion that will test the limits of the First Amendment.
Anti-abortion clinics are challenging a California law that requires them to post notices informing women how to contact the state for information about obtaining a state-funded procedure.
These clinics, known as “crisis pregnancy centers,” say the requirements under the Reproductive Freedom, Accountability, Comprehensive Care and Transparency, or FACT Act, infringe on their speech rights, forcing them to promote a procedure they morally oppose.{mosads}
The National Institute of Family and Life Advocates (NIFLA), a membership organization that provides legal counsel, education, and training to over 130 pro-life pregnancy centers in the state, argues the law not only compels speech on a particular topic, but also a particular viewpoint to silence one side of the debate on abortion.
“This compelled speech requirement drowns out the centers’ pro-life messages and discourages them from speaking through advertisements because California’s voluminous required statements make ads cost prohibitive,” they argue.
The law applies to any facilities in California that provide family planning and pregnancy-related services, such as ultrasounds and pregnancy tests.
Unlicensed facilities, meanwhile, are required to post disclaimers on site and in print and digital ads that they are not a licensed medical provider. Those disclaimers must be posted both in English and in the county’s primary languages.
California argues the notices required by licensed facilities fall within in-practice-regulated speech of a licensed professional that’s allowed under the First Amendment.
And the disclaimers required of unlicensed facilities, the state argues, are a permissible means to ensure women aren’t being misled about the type of care being provided.
“Information is power, and all women must have access to factual information regarding their health care,” California Attorney General Xavier Becerra said in a statement.
Court watchers say the case, which pits free speech against abortion access, could have broad implications for state laws across the country regulating speech.
Brian Miller, director of legal and public affairs at the Center for Individual Rights, called the case a “no brainer” for the Supreme Court.
“Regardless of what one thinks of NIFLA’s views, the idea that the government can compel the speech of an organization — simply because it dislikes their motivating belief — should be offensive to liberal and constitutional values,” he wrote in an op-ed for Forbes.
But Scott Nelson, an attorney with the Public Citizen Litigation Group, worries a ruling in favor of NIFLA could ultimately limit states’ ability to force businesses to disclose key information about goods and services to consumers.
“Here, the state’s disclosure requirements are reasonably related to legitimate interests in ensuring that women seeking pregnancy-related care receive factual information that is highly material to the decision whether to seek care at specific facilities,” he wrote in a friend of the court brief siding with the state.
“Under this Court’s precedents, the First Amendment poses no obstacle to such requirements.”
A group of 143 Republicans and one Democrat — Rep. Daniel Lipinski (Ill.) — filed a brief in support of the NIFLA, urging the court to strike down the law.
“Requiring pro-life centers to provide referrals for abortion services coercively compels the centers to engage in speech that contradicts their core message,” they wrote.
“By forcing pro-life centers to promote California’s position on a hotly contested public issue, the law targets speech on the highest rung of the hierarchy of First Amendment values.”
A group of 101 Democrats filed an opposing brief in support of the state, urging the court to uphold what they called a content-neutral regulation designed to ensure women know about and can exercise their statutorily-protected right to an abortion.
“NIFLA is entitled to counsel women to choose alternatives to abortion and to forego contraception, but it is not entitled to keep them in the dark about their rights under state law and publicly funded services the state offers,” they argued.
Legal experts say California has a tough position to argue.
“Whether it’s the part of law that deals with licensed or unlicensed centers, to win on either piece what California needs to sell the justices on is that this kind of speech gets less protection,” said Mark Rienzi, a professor at the Catholic University of America, Columbus School of Law and senior counsel at the Becket Fund for Religious Liberty.
“To do that they would have to bend the First Amendment doctrine into a pretzel.”