WASHINGTON (CN) – The Supreme Court signaled Tuesday it would strike down a California law that requires pregnancy centers to advertise abortion services.
Justice Anthony Kennedy in particular voiced concern when California Deputy Solicitor General Joshua Klein admitted that the law would likely require a pregnancy center in the state to include a lengthy disclaimer if it bought a billboard that simply read “pro-life.”
“So then you are saying on this billboard, the state can require that the content of the message be altered, even though they are not providing medical services?” Kennedy asked.
Considered a key vote in the case, Kennedy suggested the requirement would put an undue burden on the facility, especially if the disclaimer directly conflicts with its anti-abortion mission.
A nonprofit called the National Institute of Family and Life Advocates brought the underlying challenge against California’s FACT Act, which requires two types of disclosures from facilities that provide pregnancy counseling, information and limited medical services.
For state-licensed facilities, the law requires that women who enter such clinics are informed that they have other options, including abortion, at low or no cost. Unlicensed facilities meanwhile must tell women of their unlicensed status. In many cases, the facilities must provide these disclaimers in multiple languages, and the law imposes requirements on font choice and when and how the disclosures must be displayed.
Michael Farris, general counsel for Alliance Defending Freedom, argued the case for the challenger.
He told the Supreme Court on Tuesday the law narrowly targets pro-life facilities by putting in exemptions that these groups cannot meet without violating their core beliefs. He said the disclaimers put an unfair cost on the facilities and run counter to their central mission of encouraging women not to have abortions.
“So through a clever series of legislative gerrymandering, the state has ended up with a result that only nonprofit pro-life pregnancy centers are required to post the notice,” Farris said. “And the notice itself is biased.”
But some of the more liberal justices on the court, including Justice Sonia Sotomayor, questioned how the disclaimers are different than informed-consent requirements for doctors who provide abortions, which the court has upheld. Sotomayor noted other states have laws requiring people who give immigration advice to let their clients know if they are not lawyers and wondered how those laws could survive if the court were to strike down California’s law.
“So if you’re giving people advice about pregnancy when you are not a licensed facility, please explain to me what is both misleading, incorrect or suggestive in any way that a person has to do something like go to a doctor?” Sotomayor asked. “How is it doing anything other than telling people that, despite how the picture looks on the website, this is not a medical facility?”
Justice Stephen Breyer brought his own concerns to the case, asking how the court could be expected to offer such an important ruling with an extremely limited record. The nonprofit NIFLA appealed to the Ninth Circuit after a federal judge denied its request for an injunction, bringing the case before the justices without the lengthy history that a trial would produce.
“I don’t know what your evidence is,” Breyer told Farris. “I don’t know what the evidence is on the other side. And can we decide that without knowing the evidence?”
Klein, arguing for California, argued that the state has a protected interest in ensuring women have all of the information necessary to make an informed decision regarding their pregnancy. He said the state’s publicly funded health care programs have struggled with publicity campaigns, leaving many pregnant women unaware of their options.
Low-income women in particular are the most common visitors to nonprofit facilities like the ones challenging the law, but the state’s publicity campaigns often miss this audience.
“Your honor, the disclosure is targeted at women who seek free or sliding-scale low-cost pregnancy care for pregnancy, not any particular viewpoint,” Klein said. “And clinics, that by their very licensing status provide free or sliding-scale low-cost pregnancy care, are the ones where those women are going to be found and where this information is immediately useful to them.”
Klein said this explains the exemptions to the disclosure requirements for private doctors and other facilities that typically do not offer free services.
He also said the law should fall into a free-speech exemption for professional speech, which some courts have held allows states more room to regulate the speech of professionals like doctors and lawyers. U.S. Deputy Solicitor General Jeffrey Wall made a similar argument for the federal government, which supported neither side entirely in the case.
But Justice Samuel Alito noted the Supreme Court has never endorsed a free-speech carve-out for professional speech, and said such a standard could create messy legal questions about who qualifies as a professional.
He was also highly skeptical of Klein’s claims that the law is not targeted at facilities that send out pro-life messages.
“If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern, and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics,” Alito said. “Do you think it’s possible to infer intentional discrimination in that situation?”
Meanwhile, Justice Neil Gorsuch was concerned that the California law effectively deputizes the facilities to do the state’s job, allowing the government to free ride at great cost to a handful of nonprofit groups.
“Well, but if you’re trying to educate a class of persons about their rights, it’s pretty unusual to force a private speaker to do that for you under the First Amendment,” Gorsuch said.