Anti-Abortion Clinics Take Forced-Speech Claims to High Court

ARGUMENT PREVIEW

WASHINGTON (CN) – Much like attorneys have argued for the baker who refused to make a wedding cake for a gay couple, the operator of pregnancy clinics that oppose abortion will bring free-speech claims Tuesday to the U.S. Supreme Court.

The National Institute of Family and Life Advocates brought the case at issue in late 2015 after California Gov. Jerry Brown signed a law called the FACT Act.

Targeting pregnancy centers that provide free information and limited medical services like ultrasounds, the law requires unlicensed facilities to inform women they are not licensed, and it requires certain disclosures by state-licensed facilities as well.

In addition to notifying all of their clients that California offers “free or low-cost” family-planning and abortion services, the licensed facilities must give a phone number of a social services office where women can learn more about their options.

There are exemptions to the notice requirement for licensed clinics, carving out any facility that offers contraception, abortion or several other services. Furthermore, the clinics can choose to provide the notice digitally, hang it on a sign in the waiting room or hand it out on a printed sheet during the visit.

NIFLA, which operates both licensed and unlicensed facilities in California, took its case to the Supreme Court last year after the Ninth Circuit torpedoed its demand for an injunction.

Siding with a federal judge who found that the law regulates conduct, not speech, the Ninth Circuit found that the “professional-speech” doctrine allowed it to apply a less rigorous standard of scrutiny to the case.

Explaining the distinction over email, University of Wisconsin professor Howard Schweber noted that the same doctrine keeps a doctor who gives bad medical advice from hiding behind the First Amendment.

A political science and law professor, Schweber added that the Supreme Court has never directly weighed in on the relatively young professional-speech doctrine.

Tuesday’s arguments in the NIFLA case fall over three months after the Supreme Court heard a similar pitch in the gay wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

As in that case, NIFLA argued in its brief to the Supreme Court that the law compels the clinics to speak in a way that violates their core beliefs.

“The very reason they exist is to encourage and support women in choosing to give birth to their unborn children and to advocate a broader social message affirming the sanctity of human life,” NIFLA’s brief states. “Petitioners’ ideological speech is protected at the highest level by the First Amendment. But the act undermines this advocacy and forces petitioners to speak a message not only detrimental to their cause, but in direct conflict with their purpose and core convictions.”

Saying the law “unquestionably” compels speech, is content-based and viewpoint-discriminatory, the nonprofit argues the court should give it the closest level of scrutiny. Confident the law will not survive such strict scrutiny, NILFA also argues the state has not presented a compelling interest to justify the law because it has alleged only “conjectural harms.”

Schweber said if the court were to strike down the California law on the grounds that it compels speech, other groups could use a similar argument to challenge a host of other requirements with which they disagree.

“As a thought experiment, for ‘abortion,’ try substituting ‘alternative treatments,’ ‘inexpensive generic drugs,’ or ‘subsidized insurance coverage,'” Schweber said in an email. “If the issue is compelled speech those examples are just as open to challenge.”

California meanwhile has argued in its opposition brief that the law serves the compelling interest of ensuring women have reliable access to health care information. Without the notices, the state claims, many low-income women might not know all of their health care options until it is too late to use them.

“This court’s compelled speech precedents do not bar the state from requiring such non-ideological statements of fact, delivered in a context featuring pervasive government mandated notices that patients do not attribute to any clinic or physician and in a manner which will not interfere with or burden any clinic’s own advocacy,” the brief states.

While the state insists the law could survive even the closest look from the justices, the level of scrutiny the court chooses to apply could be a decisive factor in whether the law survives, Schweber said.

“So I would say that unless strict scrutiny is applied, NIFLA is going to face an uphill battle,” Schweber said in an email.

The federal government has filed a friend of the court brief in support of neither party in the case, suggesting the court should uphold the law’s requirements for unlicensed facilities, while holding the notices for licensed facilities unconstitutional.

The government’s brief tells the justices that, while the unlicensed facility notice simply states factual information about a clinic, the notices for the licensed facilities advertise other facilities with missions with which NIFLA fundamentally disagrees.

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