(CN) – A 2018 U.S. Supreme Court ruling that struck down a California law requiring faith-based pregnancy centers to provide women with information about family planning and abortions has far-reaching consequences for government regulation, public health and commercial disclosures, according to an analysis published Thursday by the NYU College of Global Public Health.
While National Institute of Family and Life Advocates v. Becerra was both hailed as a victory by anti-abortion advocates and caused ripples of anxiety among reproductive rights groups, the decision also signaled a shift in the court’s thinking on the government’s authority to regulate commercial speech and require disclosures, said Jennifer L. Pomeranz, assistant professor of public health policy and management at NYU.
“The court is moving in a new direction for commercial speech,” she said.
Specifically, Pomeranz is concerned about how the court applied the standards for commercial speech outlined in Zauderer v. Office of Disciplinary Counsel, a 1985 high court ruling that government-required disclosures be purely factual and noncontroversial, be reasonably related to the government’s interest, and not be “unduly burdensome.” The “factual and noncontroversial” element of the Zauderer test has paved the way for health warnings on tobacco, food labeling and calorie disclosures on restaurant menus, the NYU report says.
But Pomeranz, who wrote the report, pointed out Justice Clarence Thomas wrote the majority’s opinion in NIFLA. “Thomas in the past has said he’s skeptical of Zauderer to begin with. My concern is that if that goes forward, we’re going to lose disclosure requirements,” Pomeranz said.
NIFLA challenged California’s Reproductive FACT Act, passed in 2015, which mandated all pregnancy clinics – commonly called pregnancy crisis centers – to post this notice: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]."
Many of these clinics are faith-based and actively oppose abortion.
The majority mostly based its opinion on how California's’ law unconstitutionally targeted the clinics, with Thomas writing, “It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” But it also dealt with Zauderer, focusing on the controversial topic of abortion and the burdensomeness of the requirement that clinics notify women they are not licensed and had no licensed medical staff onsite.
Pomeranz said the court’s interpretation of “controversial” is worrisome, as the term is usually applied to disputes over the facts, not about whether a topic is morally or politically contentious.
“Federal courts before this case had always interpreted ‘controversial’ to be controversial about the facts, because everything can be politically controversial. That shouldn’t be a constitutional consideration,” she said. “I work in public health and every public health issue can be controversial.”
For an example of scientific controversy, one need look no further than another public health on which Pomeranz has written: sugar sweetened beverages. An en banc panel of the Ninth Circuit is expected to rule soon in American Beverage Association v. The City and County of San Francisco, the soda industry’s challenge to a city ordinance requiring health warnings on ads for sugary beverages. In that case, the controversy has not been over whether soda contributes to obesity, diabetes and tooth decay, as the industry has all but conceded that point, but whether it contributes more than other foods containing sugar.
While the shift in interpretation of “controversy” in the NIFLA ruling is concerning, the NYU report said, purely factual disclosures should be safe.