Outside the Beltway

Justices Appear Skeptical Of Law Requiring ‘Crisis Pregnancy Centers’ To Provide Information About Abortion

The Supreme Court appears ready to strike down a California law requiring Crisis Pregnancy Centers to provide information on abortion.

Doug Mataconis · Tuesday, March 20, 2018 · 6 comments

The Supreme Court heard oral argument today on a California law that requires so-called “crisis pregnancy centers” to provide information about abortion even though it may conflict with the beliefs of the clinic, and it appears that there may be a majority ready to strike the law down as a violation of the First Amendment:

WASHINGTON — A California law that requires “crisis pregnancy centers” to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday.

The centers, which are often affiliated with religious groups, seek to persuade women to carry their pregnancies to term or to offer their offspring for adoption. The law requires centers licensed by the state to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

Justices across the ideological spectrum said they suspected that the law had singled out centers run by opponents of abortion. Justice Elena Kagan said she was concerned that the law had been “gerrymandered” to address only some providers, something she said would pose a serious First Amendment problem.

A second part of the law, concerning unlicensed clinics, does not require them to post notices about the availability of abortion but does require them to disclose that they are not licensed by the state. In advertising, they must do so in large type, often in many languages.

“This is an undue burden,” Justice Anthony M. Kennedy said, “and that should suffice to invalidate the statute.” Justice Sonia Sotomayor said that part of the law, at least in some of its possible applications, was “burdensome and wrong.”

Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.

In 1992, the Supreme Court upheld a Pennsylvania law that required doctors who performed abortions to provide some kinds of information to their patients. Several members of the court’s liberal wing said that the California law served similar interests.

“In law,” Justice Stephen G. Breyer said, “what is sauce for the goose is sauce for the gander.” Justice Kagan called the California law “the exact flip side” of the one sustained in the 1992 decision, Planned Parenthood v. Casey.

Michael P. Farris, a lawyer for the centers, said the law upheld in the Casey decision differed from the one in California because it concerned medical professionals.

“Pennsylvania imposed that requirement in the context of an informed consent discussion,” he said. “Informed consent is triggered by a doctor proposing to perform a particular medical intervention.”

Justice Kennedy, who joined the controlling opinion in Casey and probably holds the crucial vote in the new case, seemed hostile to the California law.

“Do you agree,” he asked a lawyer for the state, “that mandating speech that the speaker would not otherwise give — indeed, does not agree with — alters the content of the message?”

The lawyer, Joshua A. Klein, said yes. The required disclosures, he said, provided information where and when they were most valuable.

Justice Neil M. Gorsuch responded that the state had other ways to convey its message. “If you’re trying to educate a class of persons about their rights,” he said, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

The California Legislature found that the roughly 200 centers in the state used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed, time-sensitive decisions about critical health care.”

Justice Sotomayor said she had examined one center’s websiteand found it misleading. She said it showed what appeared to be a nurse in front of an ultrasound device, mentioned abortion and indicated that the center complied with medical privacy laws.

“If a reasonable person could look at this website and think that you’re giving medical advice,” she asked, “would the unlicensed notice be wrong?”

Mr. Farris said unlicensed centers do not provide medical services but only advice about pregnancy.

Justice Kennedy was critical of Justice Sotomayor’s outside research. “In this case,” he said, “I didn’t go beyond the record to look on the internet because I don’t think we should do that.”

Justice Gorsuch said the state could address misleading speech more directly, through lawsuits and prosecutions. That “puts the burden on the government to prove that someone has abused their free-speech rights,” he said. The California law, by contrast, he said, “requires you to compel speech from someone else that implicates First Amendment concerns.”

“And this court,” he added, “is normally pretty jealously protective of speech.”

Amy Howe comments on the oral argument for SCOTUSBlog:

The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices.

The law at issue is the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, also known as the Reproductive FACT Act. The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.

Arguing on behalf of the centers, attorney Michael Farris quickly ran into questions from several of the court’s more liberal justices that boiled down to what Justice Stephen Breyer dubbed “what is sauce for the goose is sauce for the gander”: If a state that opposes abortion can require a doctor who performs abortions to tell a pregnant woman about the possibility of adoption, why can’t a state that supports abortion rights require a doctor to tell a pregnant woman about the availability of free or low-cost abortions?

Justice Sonia Sotomayor appeared to agree. If you decide to talk about pregnancy, she asked Farris, why shouldn’t you be required to tell people that you are not a doctor? She asked, in a seemingly rhetorical question, whether states can also require agencies or groups that provide information on immigration to tell the recipients of their services that they are not lawyers.

Farris and Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the federal government, tried to distinguish between the two kinds of disclosures, stressing that requirements to inform pregnant women about alternatives to abortion only come into play when medical procedures are being provided, and that the unlicensed clinics are not providing such procedures.

But Sotomayor was skeptical, telling Wall that the clinics sometimes provide ultrasounds and pregnancy tests. “But I don’t know” what those are, she complained, “if not a procedure.” “I don’t know how” pregnancy counseling, she continued, “is not part of medical advice in the same way a doctor gives it when he’s considering an abortion procedure. I don’t understand the difference.”

Justice Samuel Alito, on the other hand, was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?” After Joshua Klein, the deputy state solicitor general who argued for California, agreed that it was, Alito peppered him with questions about various exemptions in the California law and concluded that “when you put all this together, you get a very suspicious pattern.”

Perhaps more crucially for the state, Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.”

Klein tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions. Kagan then asked Klein to identify the impetus for the statute. Was the statute intended to address the problem of pregnant women generally not getting enough information about their options or, instead, was it enacted out of a belief that crisis pregnancy centers were misleading women about their options?

Klein responded that the statute fell into the first category, but that response got him into trouble with Justice Neil Gorsuch. If that’s the case, Gorsuch asked Klein, why can’t the state use other methods to make sure that pregnant women are aware of their options, rather than free-riding “on a limited number of clinics to provide that information”? “If you’re trying to educate a class” of people “about their rights,” Gorsuch stressed, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Justice Ruth Bader Ginsburg joined the fray. She asked Klein whether, if the state had enacted the law to address the problem of crisis pregnancy centers providing incomplete or inaccurate information, California had ever filed charges against a center for “false and misleading advertising.”

(…)

By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of the Reproductive FACT Act, while leaving open the possibility that a more generally applicable law might pass constitutional muster. We’ll know more by the end of June.

As always, of course, it’s important to be careful not to draw too many conclusions from the questions that the Justices ask at oral argument. As I’ve stated before, there are times when the questions asked don’t necessarily serve as a good guide for how the Justices or a Judge will rule on a given case. Sometimes, Judges and Justices ask questions because they are trying to push lawyers to answer questions raised by their own review of the briefing in the case, sometimes they are doing it as part of an effort to steer the discussion that the Justices will have on this case when they convene for their weekly conference at the end of the week, and sometimes they are asking questions as much to satisfy their own intellectual curiosity. It was readily apparent that Justice Scalia often engaged in this last practice during oral argument himself, for example, and he and his friend Justice Ruth Bader Ginsburg used the questioning during oral argument as a form of debate between themselves. These are all phenomena I have experienced myself many times when arguing before judges at the state and Federal levels so it isn’t surprising if it happens among the nation’s top judicial minds as well.

Notwithstanding all that, though, oral argument is generally the best guide we have to indicate where the Court may be leaning in a particular case and, in this case, it appears that there could be a majority that crosses traditional liberal-conservative boundaries to strike the law down. Several Justices appear to be skeptical of California’s argument that “crisis pregnancy centers” should be required to provide information about abortion even when it conflicts with the beliefs of the people or organization running the clinic. In large part this is because the Justices appear to be viewing this as a First Amendment freedom of speech case rather than a case dealing with abortion rights. If that’s where they ultimately come down, then it seems likely that we will see a strong majority of the Court ruling against California and holding that a state cannot force one of these clinics to engage in speech that conflicts with their beliefs. The Court’s case law, both historically and more recently under Chief Justice John Roberts, has long held a dim view of any form of state-mandated speech unless it can be justified by some very compelling government interest. That interest doesn’t appear to exist in this case, and the argument that the “crisis pregnancy centers” are engaged in some kind of consumer fraud is undercut by the fact that there is no record of any such clinic being successfully prosecuted for fraud or violation of any relevant consumer protection laws by California or any other state, as Justice Ruth Bader Ginsburg noted herself during the course of today’s oral argument. As a matter of both policy and law, it seems to me that striking down the law would be the correct decision.

This isn’t the only case dealing with claims of forced speech that the Supreme Court has heard this term. In December, the Justices heard argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case deals with a baker who declined to create a wedding cake for a same-sex couple who had previously been long-standing customers of the bakery. The owners said that doing so would conflict with their religious beliefs and that it would constitute a form of forced speech. That claim is more complicated by the fact that it conflicts with the state’s interest in enforcing anti-discrimination laws, which is arguably more compelling than the interest claimed by California to justify the law at issue in this case. However, it will be interesting to see how the Justices reconcile the two cases since the opinions are likely to be handed down at roughly the same time.

This decision shouldn’t be expected until somewhere near the end of the Court’s term in June. In the meantime, you can catch up on the filings in the case if you wish at the case information page at SCOTUSBlog.

Here’s the transcript of today’s oral argument:

National Institute of Life and Family Advocates Et Al v. Becerra Et Al Transcript by Doug Mataconis on Scribd

Photo of Supreme Court Building At Dusk via Wikimedia Commons.