Jurisprudence

A Pro-Life Puzzler

Can a state compel anti-abortion clinics to provide information about free abortions?

Demonstrators stand in the rain outside the Supreme Court on Tuesday.
People demonstrate outside the Supreme Court argument on Tuesday in NIFLA v. Becerra, a free speech challenge to California’s disclosure requirements for “crisis pregnancy centers.”
Mark Joseph Stern/Slate

The conventional wisdom about NIFLA v. Becerra, a legal challenge to California’s regulation of “crisis pregnancy centers,” is that it isn’t actually an abortion case. Technically, that’s correct: NIFLA is a free speech dispute, with anti-abortion clinics alleging that new disclosure requirements violate their rights under the First Amendment. But when the Supreme Court heard arguments in the case on Tuesday, it quickly became apparent that the free expression question may be impossible to answer without diving into the abortion debate head first.

NIFLA centers around a California law called the Reproductive FACT Act passed in 2015. Under the act, licensed community clinics whose “primary purpose is providing family planning or pregnancy-related services” must disclose to all patients that California offers “free or low-cost” contraception, prenatal care, and abortion. The disclosure includes a phone number patients can call for more information about state-funded services. Meanwhile, unlicensed community clinics that focus on pregnancy or family planning must disclose to all patients that they have “no licensed medical provider.” They must also include this warning conspicuously in advertising.

Why did California pass the FACT Act? The answer to that question may determine the outcome of this case. California says it had two main reasons, both perfectly plausible. First, the state notes that the Affordable Care Act dramatically expanded funding for its prenatal and family planning services. But California residents aren’t taking full advantage of these new programs, so state officials conscripted clinics to help. Second, the state had concerns about the candor and efficacy of many clinics, particularly crisis pregnancy centers. In order to persuade women not to terminate their pregnancies, the state of California claims, these clinics often conceal their religious affiliations and insinuate that they provide a broader range of services than they really do.

Crisis pregnancy centers disagree with that assessment. They argue that California has “targeted” them “for disfavored treatment,” forcing them “to point the way to free or low-cost abortions” and thus making them “complicit in facilitating an act they believe hurts women and destroys innocent lives.” According to CPCs, the FACT Act is “gerrymandered” to “commandeer” their expression, “manipulat[ing] the marketplace of ideas” to favor abortion in violation of the First Amendment.

This claim didn’t fly in the lower courts: Both a federal district court and the 9th U.S. Circuit Court of Appeals denied the crisis pregnancy centers’ request for an injunction. The 9th Circuit pointed out that, when the Supreme Court affirmed the constitutional right to abortion access in Planned Parenthood v. Casey, it evaluated a sort of mirror-image FACT Act: a Pennsylvania law that forced doctors to tell abortion patients about the “nature” of the procedure and the “probable gestation age” of the fetus. The court held that a state can require physicians to provide such “information” as part its “regulation” of “the practice of medicine.” For years, courts have relied on this passage to uphold “informed consent” laws that require doctors to feed their patients disturbing, dogmatic, and inaccurate anti-abortion propaganda. If states can compel physicians to carry their anti-abortion message, surely California can require a simple disclosure of licensing status and state-sponsored services.

Justice Stephen Breyer hit upon this issue early. “What is sauce for the goose is sauce for the gander,” he told Michael Farris, the attorney representing the CPCs. “If a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor … you have to tell people about abortion?” Farris has an answer: Because, he asserts, California hasn’t forced all doctors to post the disclosure. Instead, it tailored its statute to single out CPCs by covering community clinics that specialize in pregnancy-related services.

Farris is eager to prove that the FACT Act targets CPCs for a very good reason. In Citizens United, the Supreme Court announced that laws that discriminate against specific “speakers” on the basis of their “identity” are subject to heightened judicial scrutiny. So, for instance a law that limits corporate electioneering because of “the speaker’s corporate identity” infringes upon the First Amendment. NIFLA wants to convince the Supreme Court that California attacked CPCs because they are CPCs, rendering the disclosure law constitutionally suspect.

Justice Samuel Alito certainly buys this argument: He told California Solicitor General Joshua Klein that the law has “a lot of crazy exemptions,” creating “a very strange pattern, and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it’s possible to infer intentional discrimination in that situation?” But Klein gives plausible reasons for the FACT Act’s exemptions: It targets community clinics because that’s where millions of low-income Californians receive health care, for example, and exempts private physicians because poorer women often can’t afford them.

But say the law was aimed at CPCs. Would that really suffice to render it invalid under the First Amendment? Could it be that California has no compelling interest in ensuring that its residents know which clinics are licensed and which provide the full range of subsidized medical options? To illustrate why it might have such an interest, Justice Sonia Sotomayor told Farris that she had recently visited Fallbrook Pregnancy Resource Center’s website. “There is a woman on the homepage with a uniform that looks like a nurse’s uniform in front of an ultrasound machine,” she said. “It shows an exam room.” It talks about “abortion,” “your options,” and “our services,” advertising “free ultrasounds.” But in fact, the Fallbrook Pregnancy Resource Center is an unlicensed CPC.

“If a reasonable person could look at this website and think that you’re giving medical advice,” Sotomayor wondered, “would the unlicensed notice be wrong?” And what about CPCs that essentially trick women into seeking an abortion, then lecture them about the evils of the procedure? “How is [it] any different than Casey,” Sotomayor asked, to require the clinic to post alternative options? “You come in to talk to a doctor about abortion. The state says you have to tell the person the alternatives.” If it’s constitutional when the “alternatives” include carrying the pregnancy to term, why is it unconstitutional when the “alternatives” include terminating the pregnancy?

Justice Anthony Kennedy got cranky with Sotomayor for looking at a website outside the record, snipping, “I don’t think we should do that.” (For the record, both Chief Justice John Roberts and Alito have done this, too, and earned no rebuke from Kennedy.) Minutes later, Roberts got frustrated by Sotomayor’s forceful questioning, slapping her with a yellow card when she interrupted: “Maybe could we let him finish the answer, please?” There was not an appetite on the bench, it seemed, for Sotomayor’s much-needed injection of reality into the abstract colloquy.

It appears inevitable that the court will strike down at least part of the FACT Act. The key questions are how much and on what grounds. Some provisions of the law, such as its requirement that ads for unlicensed CPCs include conspicuous disclaimers in multiple languages, are probably unconstitutional. (Mandatory commercial disclosures should not be so burdensome.) Others, like the requirement that these clinics inform patients about their lack of a license, seem plainly legal. Meanwhile, the heart of the law—its disclosure requirement for free abortion services—is a true puzzler. Can a state really compel anti-abortion clinics to provide information about free abortions?

At the end of the day, what matters most about NIFLA is that the court rules consistently. If California can’t compel abortion disclosures at CPCs, then Mississippi cannot compel abortion providers to falsely tell their patients that terminating a pregnancy causes breast cancer and infertility. If the court carves out special protections for CPCs, it will be a blatantly political affront to the Constitution. But if it uses NIFLA to announce broad new First Amendment protections for all clinics—including abortion providers—it will be a net benefit for choice.
What’s sauce for California is sauce for Mississippi. And as Breyer put it, the court’s most important job here is “to keep sauces the same.”