WASHINGTON (CN) – The Supreme Court struck down a California law on Tuesday that puts different disclosure requirements on pregnancy centers depending on the status of the licenses.
Writing for the 5-4 court this morning, Justice Clarence Thomas noted that California offered just one interest - “providing low-income women with information about state-sponsored services" to justify its 2015 Reproductive FACT Act.
“Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it,” the ruling states.
“If California’s goal is to educate low-income women about the services it provides, then the licensed notice is ‘wildly underinclusive,’” Thomas added, quoting a 2011 decision in the case Brown v. Entertainment Merchants Association.
A nonprofit called NIFLA, short for the National Institute of Family and Life Advocates, brought the underlying case shortly after the California Legislature passed the FACT Act. Among other demands, the legislation says that any health care provider that serves pregnant women must inform clients that California offers “free or low-cost” family-planning and abortion services.
Though this law affects all facilities regardless of whether they are licensed by the state, licensed facilities are entitled to certain exemptions, provided that they perform ultrasounds and offer contraception or counseling about contraception.
Licensed facilities can choose to provide the notice digitally, deliver it on a printed sheet to patients, or hang the notice on a sign in the waiting room. Unlicensed facilities meanwhile must tell women of their unlicensed status. In many cases, they must provide such disclaimers in multiple languages, and the law imposes requirements on font choice and when and how the disclosures must be displayed.
Thomas noted that there are nearly 1,000 community clinics in California serving more than 5.6 million patients a year through “federally designated community health centers, migrant health centers, rural health centers, and frontier health centers.”
While California could also call on these facilities to educate the public about the state’s services, Thomas said these “clinics are excluded from the licensed notice requirement without explanation.”
“Such ‘underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint,’” Thomas aded.
As to the exclusion of federal clinics and Family PACT providers rom the licensed-notice requirement, California argued that these clinics can enroll women in California’s programs on their own. Thomas said this too undercuts California’s “stated interest is informing women that these services exist in the first place.”
“California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics,” the lead opinion states. “In fact, the exempted clinics have long been able to enroll women in California’s programs, but the FACT Act was premised on the notion that ‘thousands of women remain unaware of [them].’” (Brackets in original.)
Thomas said the disclaimer posted in unlicensed centers likewise “impose[s] a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest.”
“It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements,” he wrote. “And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide ‘family planning’ services and ‘contraception or contraceptive methods,’ the California Legislature dropped these triggering conditions for the unlicensed notice.”