(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
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.
“Going forward, entities subject to all types of disclosure requirements will likely challenge them by arguing that they are controversial. Policymakers should continue to gather scientific evidence supporting warning requirements, which should resemble health and safety warnings long considered permissible.”
Perhaps the most troubling part of the NIFLA ruling is the conspicuous absence of any mention of deception in the majority’s opinion, Pomeranz said, pointing to Thomas’ citation of In re: R.M.J., a 1982 case regulating advertising by lawyers.
The full quote reads: “Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception.”
But Thomas chose to only use part of the quote, opting for just “no broader than reasonably necessary.” To Pomeranz, this seemed deliberate.
“He cut off the full statement to avoid using the word deception in the opinion,” she said.
The majority in NIFLA found California had not presented any justification for the portion of the notice pertaining to licensing.
“Indeed, California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals,” Thomas wrote, adding in a footnote, “Nothing in our opinion should be read to foreclose the possibility that California will gather enough evidence in later stages of this litigation.”
The NYU report calls this is a bit of a head-scratcher.
“It belies logic that in the context of reproductive health services, the court would have upheld the unlicensed notice even with evidence supporting the government’s rationale as the court framed it: that consumers do not know that medical professionals are not present in locations where their services are not provided,” the report says.
While many have seen NIFLA as purely an abortion rights case, Pomeranz said the court’s treatment of deception in the ruling may have broader implications for future public health disclosures and the possible undoing of Zauderer.
“[NIFLA] may be viewed as an abortion case, but I see it as a factual disclosure requirement case, akin to those concerning tobacco warning labels or nutrition labels,” she said. “The court has always considered warning labels like those on tobacco products in the same First Amendment class as disclosure requirements. This case appears to show the court chipping away at the government’s ability to require purely factual disclosures in the commercial context.”
She added: “We don’t know yet if the court is going to keep going along this path that Thomas has created. Either this the case where he gets to put the flag pole in, or this is going to be a case about abortion. We don’t know that answer yet.”
Yet she also said she sees a “slippery slope” where commercial speech is being treated with increased deference. The landmark Supreme Court ruling in Citizens United upheld political spending by corporations as a form of protected free speech. Pomeranz said she sees NIFLA as “moving along the same continuum.”
“If you really think about the protection of political speech at the corporate level and you start to protect commercial speech on the same level, there’s no end of what they can say,” she said.
The NYU report recommends that in the future, policymakers should present evidence of deception and focus their disclosure requirements on preventing consumer confusion, noting this strategy might have saved California in NIFLA.
“If California can present evidence that pregnancy clinics engage in misleading commercial speech or that pregnant women are misled to believe that unlicensed clinics are staffed by licensed medical professionals, this would reveal a deception in need of a cure,” the report says. “Likewise, policymakers nationally should gather evidence of deception for future commercial disclosure requirements.”
Pomeranz said deception is the key.
“One area that every justice has agreed on is that deceptive speech isn’t protected. So let’s go where everyone agrees. Let’s go with this. Let’s take their advice and cure all deception,” Pomeranz said. “This is the perfect area for researchers and legislators to move. It seems to be constitutionally protected and accurate and that’s why I think the opinion ignored it.”