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.”
Calling the licensing disclaimer “burdensome” as well, Thomas emphasized the requirement that it appear in all print and digital advertising materials, feature a government-drafted statement about the facility, and appear in as many languages besides English as required by the state.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined a dissent by Justice Stephen Breyer that says both of California’s disclosures rules appear constitutional.
“Historically, the court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution,” Breyer wrote. “Ever since this court departed from the approach it set forth in Lochner v. New York (1905), ordinary economic and social legislation has been thought to raise little constitutional concern. As Justice Brandeis wrote, typically this court’s function in such cases ‘is only to determine the reasonableness of the Legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.’”
Breyer emphasized that virtually every disclosure law could be considered “content based,” and that virtually every disclosure law requires individuals “to speak a particular message.”
Calling the FACT Act justified in light of health and safety concerns, Breyer said the majority erred in not finding the disclaimer proper under the “health category.”
After all, Breyer continued, it was Justice Anthony Kennedy in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey who reasoned that disclosures related to fetal development and childbirth directly correlate to the health of a woman seeking an abortion.
“The majority contends that the disclosure here is unrelated to a ‘medical procedure’ … so the state has no reason to inform a woman about alternatives to childbirth or, presumably, the health risks of childbirth,” Breyer wrote. “Really? No one doubts that choosing an abortion is a medical procedure that involves certain health risks.”
Breyer emphasized that prenatal care involves medical testing for anemia, infections, measles, genetic disorders and a host of other medical conditions.
“Childbirth itself, directly or through pain management, risks harms of various kinds, some connected with caesarean or surgery-related deliveries, some related to more ordinary methods of delivery,” the dissent continues. “Indeed, nationwide ‘childbirth is 14 times more likely than abortion to result in’ the woman’s death.”
Breyer also cut through the claim that California’s law discriminates against anti-abortion pregnancy centers.
“The act does not, on its face, distinguish between facilities that favor pro-life and those that favor pro-choice points of view,” he wrote. “Nor is there any convincing evidence before us or in the courts below that discrimination was the purpose or the effect of the statute. Notably, California does not single out pregnancy-related facilities for this type of disclosure requirement.”
Attorney General Jeff Sessions applauded the court’s ruling Tuesday. “Speakers should not be forced by their government to promote a message with which they disagree, and pro-life pregnancy centers in California should not be forced to advertise abortion and undermine the very reason they exist,” Sessions said. “This department will continue to vigorously defend the freedom of all Americans to speak peacefully in accord with their deeply held beliefs and conscience.”
California passed its law following a report by NARAL-Pro Choice, short for the National Abortion and Reproductive Rights Action League, which suggested that crisis-pregnancy centers – often linked to anti-abortion groups – were not giving women the full range of information needed to make a decision regarding their reproductive health.
NARAL Pro-Choice Virginia executive director Tarina Keene lamented the ruling Tuesday, saying the “ideologically and closely divided” Supreme Court dealt a blow to transparency and honesty for patients seeking health care.
“[The decision] gives fake women’s health centers a free pass to continue deceiving pregnant women,” Keene said in a statement. “These fake clinics prey on pregnant women and their families and often give false and medically dangerous information.” While the harm to patients is very real, five justices refused to end the lies these facilities perpetuate.”
NIFLA operates more than 100 licensed and unlicensed crisis-pregnancy centers throughout California. It took its challenge to the Supreme Court after a federal judge in San Diego denied it an injunction and the Ninth Circuit affirmed.
Anne O’Connor, the group’s president and co-counsel, applauded Tuesday’s reversal.
“NIFLA v. Becerra is not just about whether or not to hand out abortion information on a piece of paper or post it on the walls of our pro-life centers,” O’Connor said in a statement. “It is about the right belonging to all American citizens to be free from government-compelled speech and from being coerced into promoting a message that contradicts their values. No one should be forced by the government to express a message that violates their convictions.”
The group Alliance Defending Freedom represented NIFLA at oral arguments in March, while California Deputy Solicitor General Joshua Klein argued for the states.
While awaiting the court’s ruling, ReproAction co-founder Erin Matson said in an interview that the case underscores mistrust around women’s judgment when it comes to their own health care.
”At a basic level, what people are demanding is accountability and respect for women,” Matson said. “We need to trust women. Women deserve accurate facts and information. The Reproductive FACT Act is a common-sense law.”
Protesting outside the courthouse Monday, Matson carried a sign emblazoned with the words “Women Deserve the Truth.” She said she blames crisis-pregnancy centers for “systematic misleading and deception of women” who seek abortion services.
“In the case of these clinics, just because someone has bought themselves a white lab coat doesn’t give them a license to systematically deceive people seeking abortion care,” Matson said. “While free speech is absolutely important in this country, the idea that the right wing is the group being oppressed here is completely ridiculous,” she said.
Matson noted that the part of the deception that women confront at crisis-pregnancy clinics is that the staff there sometimes works to run down the clock until it is too late for them to undergo an abortion.
“This case is something that abortion rights and reproductive rights activists will be digging into for the long haul,” Matson said. “We’ve identified anti-abortion, fake clinics as a power core of the anti-abortion movement, so it’s critical we demand accountability either by calling for more oversight or ensuring medical professionals and staff are available at these facilities.”