In a 5–4 decision on Tuesday in NIFLA v. Becerra, the U.S. Supreme Court upheld a challenge to a 2015 California law that required reproductive health clinics in California to provide certain information to clients. The court, in an opinion authored by Justice Clarence Thomas, found that the statute known as the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act, likely violates the First Amendment, and sent the case back to the lower courts for reconsideration. This represents a big loss for states trying to inform women of their full range of reproductive options.
The FACT Act was enacted in response to the rise of crisis pregnancy centers, often with religious affiliations, that held themselves up as full-service reproductive health clinics but opposed abortion and often provided pregnant women with inaccurate or misleading information about their options. The law had two sets of requirements: licensed clinics had to post notices to inform their patients that free or low-cost abortions are available through the state, and they had to provide the telephone number of state agencies that could connect women to providers. Unlicensed centers were required to post disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include licensed medical help. The clinics sued arguing that the law violates the First Amendment. On Wednesday, the Supreme Court said they would likely prevail on that claim.
Clarence Thomas, writing for the five conservatives justices in the majority, held that these required notices constitute a content-based regulation of speech. He notes that since the services must give information about abortion—“the very practice that petitioners are devoted to opposing”—the licensed notice plainly “alters the content” of petitioners’ speech. He writes that the court does not have a special status for “professional speech” and that “the notice at issue here is not an informed-consent requirement or any other regulation of professional conduct.” In applying “strict scrutiny” to the notice requirement—the very highest level of judicial scrutiny —he finds the law impermissible. Thomas goes on to note that if California’s purported interest is “to educate low-income women about the services it provides, then the licensed notice is wildly underinclusive,” noting that many clinics are excluded from the requirements.
Justice Anthony Kennedy wrote a dramatic separate concurrence that is at pains to scold California lawmakers for targeting these individual clinics “because of their beliefs.” In a paragraph that is worth quoting in full, he writes that this is the hallmark of totalitarian governments:
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
In a dissent that he read from the bench, Justice Stephen Breyer notes that the majority approach targets virtually all disclosures required by professionals:
Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered “content based,” for virtually every disclosure law requires individuals “to speak a particular message.”
He goes on to observe that there are long-standing laws that regulate reproductive health disclosures and notes that “if a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?” As he noted at oral argument “the rule of law embodies evenhandedness, and ‘what is sauce for the goose is normally sauce for the gander.’ ”
Breyer closes by pointing out that the majority seems to be assuming that professional “speech about abortion is special, that it involves in this case not only professional medical matters, but also views based on deeply held religious and moral beliefs about the nature of the practice.” He adds that this is all the more reason to “interpret American constitutional law so that it applies fairly within a Nation whose citizens strongly hold these different points of view.”
Breyer seems to be holding out some hope here that this decision might invalidate the many state laws that force physicians—over their own objections and medical reality—to warn women that their risk of suicide, breast cancer, and depression will increase if they have an abortion. Justice Kennedy’s concurrence suggests that those misleading warnings aren’t a problem. But when the state demands that religious believers tell the truth, Kennedy argues, that’s authoritarianism.