The US Supreme Court is expected hear oral argument tomorrow on whether disclosures, required by the California law known as the Reproductive FACT Act, violate the First Amendment’s free speech clause.
The case amounts to whether certain groups have a right to lie while pretending to offer services to pregnant women who would be better off seeking a safe, legal abortion.
Concerns that Christian nonprofit crisis pregnancy centers organizations often provided pregnant women with inaccurate or misleading information about abortion, reproductive health and their options prompted lawmakers to enact the 2015 statute.
The Reproductive FACT Act imposes two sets of requirements on different kinds of pregnancy centers.
Entities that are licensed to provide such medical services as pregnancy tests and ultrasound examinations, must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions.
Centers that are not licensed must include disclaimers in advertisements to make it clear that they do not provide medical services.
California’s attorney general and local-government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.
Laywers for the anti-abortion groups argue disclosures are so burdensome “that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media.”
Nonprofits also say they are compelled by the law to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”
A federal district court rejected the centers’ arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. Next week the Supreme Court will hear oral argument on whether the disclosures required by the law violate the First Amendment’s free speech clause.
The anti-abortion centers are represented by lawyers for the Alliance Defending Freedom, which also played key roles in the high-profile Masterpiece Cakeshop v. Colorado Civil Rights Commission case, defending a Colorado man who practices religious bigotry by refusing to bake cakes for same-sex weddings.
They on behalf of the National Institute of Family and Life Advocates (NIFLA) and its affiliated pregnancy centers in California, will argue that the 9th Circuit should have used the most stringent test – known as “strict scrutiny” – to review the Reproductive FACT Act’s constitutionality because the law is based on the content of the centers’ speech and discriminates based on their viewpoint.
That standard places enormous burdens on the centers without evidence that they are causing any harm, even if the ads are misleading. If the state were truly concerned that pregnant women aren’t getting information about publicly-funded options, the anti-abortion centers say it could publicize that information itself.
California counters that the law targets two problems: Women who can’t afford medical care aren’t aware of the publicly funded options available to them, and when they go to these centers they are often confused about whether they are getting care and advice from medical professionals.
The notices that the medical centers are required to provide, the state argues, fall “well within the First Amendment’s tolerance for the regulation of the practice-related speech of licensed professionals.”
The notices that the unlicensed centers must provide, the state continues, are permissible to prevent confusion about the nature of their care.
The federal government filed a “friend of the court” brief that splits the difference.
The federal government agrees that the notices required for licensed medical centers violate the First Amendment.
The clinics should not be forced to promote services that they find “morally repugnant,” says the brief filed by Solicitor General Noel Francisco, arguing that the state could do its own advertising.
But the federal government agrees with California that the notices required of unlicensed centers simply require them to “disclose an accurate, uncontroversial fact about their own services: that they are not provided by a state-licensed medical professional.”
California has a strong interest in making sure that women know if pregnancy-related services like ultrasounds are being offered by medical professionals.
The top court is expected to issue a decision by the end of June.
The ruling could have ripple effects well beyond California since more than a dozen states have laws that are intended to discourage women from terminating pregnancies by requiring abortion providers to tell patients, for example, that there is a link between abortion and breast cancer or that abortion increases the risk of suicide.
According to the American Cancer Society, scientific research studies have not found a relationship between abortion and breast cancer.
It is not clear what a ruling for the centers in this case would mean for those laws, but the potential parallels mean that a lot of people will be watching this case closely.
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