Why the Challenges to California’s Reproductive Fact Act Are Likely Unpersuasive

Deciding exactly when religious exercise or expression should or (by law) must be accommodated in the face of competing objectives to promote health or equality is something that has consumed a lot of political and judicial energy of late. The conflict involving Kim Davis’s efforts to avoid issuing same-sex marriage licenses is one example; so too is the conflict involving Hobby Lobby’s desire to exclude certain contraceptive services from its employer-provided health insurance – a case that went all the way to the Supreme Court. In the space below, we analyze a new skirmish—a court challenge brought against a recently enacted California law regulating family planning clinics.

Background on the Law and the Religion Claims in the Lawsuit

California’s Reproductive Fact Act (CRFA or Assembly Bill 775) provides that every licensed clinic providing family planning or pregnancy-related services must disseminate to clients (by posting a large-type poster in the waiting room or by more individualized notification) the following specific information:

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 [the appropriate telephone number].

A number of religiously affiliated family-planning facilities (described as pregnancy crisis centers) have brought suit in federal district court in both northern and southern California, seeking to block the CRFA from being implemented next January (the time the law was by it terms due to go into effect). The plaintiffs, one of whom “operates a community care clinic providing medical consultations, pregnancy testing, ultrasound examinations, education related to sexually transmitted diseases and infections, prenatal education, nutrition information, fetal development education, medical referrals and other practical support related to pregnancy,” claims that the CRFA violates its First Amendment liberties of religion and speech.

Although these cases raise a number of interesting and complicated legal issues, we ultimately conclude that CRFA should survive these constitutional challenges.

Let us begin with religious freedom. There is no persuasive argument that the statute violates the Free Exercise Clause of the United States Constitution primarily because the CRFA is a so-called “neutral law of general applicability.” By this we mean that the statute applies across the board to all licensed facilities and does not single out religious facilities for special inferior treatment. It has been clear, at least as a matter of judicially enforceable constitutional doctrine, since the Supreme Court decided Employment Division v. Smith in 1990, that the Free Exercise Clause provides no meaningful protection against neutral laws to general applicability.

The More Complicated Speech Aspects of the Litigation

A more serious argument against the statute would be predicated on the Free Speech Clause of the First Amendment. Free speech doctrine protects speech against certain regulations and censorship, but it also protects individuals and institutions from being compelled by the government to express messages with which they disagree. Religious facilities that oppose abortion argue that the CRFA compels them to communicate a message they consider to be in violation of the tenets of their faith. These arguments warrant further analysis.

As an initial matter, it is clear, at least under Ninth Circuit precedent (which is binding on federal trial courts in California), that the government can regulate the practice of the medical profession even when doing so restricts the speech that doctors communicate to their patients. This was the foundation of the recent rulings in the so-called conversion therapy cases, in which California’s prohibition against the provision by licensed health care providers of conversion therapy treatments to minors was upheld. It is difficult—as we argued in an earlier column for this site—to refute the basic premise underlying these conversion-therapy cases. Doctors cannot prescribe useless and harmful treatments to their patients and escape sanction for doing so simply because they communicate their incompetent treatment recommendations through speech. Government has the constitutional authority to regulate the practice of medicine. The fact that the practice of medicine involves speech to a considerable extent does not undermine the state’s regulatory authority in this area.

One may argue that a different analysis applies when the government is compelling doctors to speak rather than prohibiting certain aspects of their expression. There are cases holding that the Free Speech Clause of the First Amendment limits what doctors who provide abortion services can be required to communicate to their clients by way of graphic information that might be intended to discourage persons from seeking abortions. One may argue that a similar analysis should apply here—when clinics opposing abortions are required to communicate their availability. The idea would be that while the government may prohibit doctors from offering incompetent advice, this does not mean the government can also require doctors to deliver the government’s message to patients.

We recognize that some compelled speech cases involving abortion providers could be seen to be in some tension with the case law upholding restrictions on conversion therapy. We also note that in many other settings—cigarettes, food nutritional value, consumer finance, etc.—government routinely requires providers of goods and services to affirmatively provide consumers with accurate information. Focusing on the medical profession, we do not see—and would not like to see—a bright-line distinction between prohibiting speech and compelling speech. Instead, we think that the key distinction here ought to be between regulations directed at the practice of medicine, and regulations that focus not on the practice of medicine, but that conscript doctors to accomplish some expressive, non-medical government objectives.

In other words, we think that the government’s ability to regulate what doctors can say to their patients is limited to speech that is part of medical practice and treatment. The Free Speech Clause protects the right of doctors to speak (or not speak) to patients about other matters, or about medical issues outside the parameters of the treatment provided to a patient.

What that means in the realm of so-called compelled speech is that the state can require doctors to communicate medically accurate and necessary information to patients. But the state cannot require doctors to express the state’s ideological messages about medicine or anything else. The key issue in both speech restriction and compelled speech settings is whether the state is regulating the practice of medicine—and restricting or compelling speech as a necessary component of such regulations—or whether the state is restricting or compelling speech to further ideological goals that are not intrinsic to the regulation of medical practice.

Some hypothetical examples of impermissible compelled speech would be easy to imagine and invalidate. Other hypotheticals pose more difficult questions. We think it is obvious that the government could not require physicians to express messages supporting or opposing the Affordable Care Act, even though the Act involves the medical profession; support of or opposition to the ACA is simply not part of the practice of medicine, however broadly defined. But we think a different outcome might be appropriate if the government were to require doctors to notify indigent patients who cannot afford to pay for medical services that subsidized health insurance is available and to provide them a phone number to call to obtain additional information. Providing information about health-care options is part of the practice of medicine in a way that providing criticism of or arguments in favor of the ACA is not.

Or consider these examples. Assume the doctors who operate a pediatric clinic strongly believe that certain vaccines for children are dangerous and immoral, although most of the medical community supports the provision of these immunizations. Assume further that the state accommodates these physicians and does not require them to offer the objectionable vaccines to their patients. Would it be constitutional for the state to require all pediatric clinics to post a notice stating: “State X has public programs that provide immediate free or low-cost FDA approved vaccinations that are not provided by this office. To obtain further information about these vaccines and their availability, contact your county social service office at [phone number].”

A more realistic example might involve cases of pharmacists who do not want to provide Plan B, a contraceptive alleged to operate as an abortifacient, to their patrons. Assume a state accommodates these pharmacists and does not require them to fill prescriptions for Plan B. Would it be unconstitutional for the state to require pharmacists who decline to fill these prescriptions to notify patrons of the location of other nearby pharmacies where Plan B can be obtained in a timely fashion?

In evaluating all these hypotheticals, we think it may be helpful to think about the purpose behind the state’s decision to compel certain speech. We suggest the strongest case for compelling speech is to counter misrepresentation by the health care provider. To the extent that the state is concerned that patients are being misinformed about the availability of alternative treatments and providers, the state should be able to require providers to communicate accurate information that other services relevant to their medical condition but unavailable at the provider’s facility are available at other facilities.

A second legitimate purpose, but not as compelling a purpose as avoiding misrepresentation, would be the goal of disseminating information that the state believes would be in the patient’s interest to hear, or that would further public health goals. Compelling health care providers to communicate such messages would seem to be most justified when the message directly relates to the particular medical treatments offered to patients. It is easier to justify requiring pediatric clinics to post notices about the availability of vaccines for children than it would be to compel plastic surgeons to post a similar notice. The line between avoiding misrepresentation and promoting full awareness can be blurry, and the more related the treatment being offered to the message being packaged alongside that treatment, the greater the benefit of the doubt in favor of the regulation (on the ground that the regulation might reduce misrepresentation) ought to be.

A final purpose involves the state’s endorsement of medical treatments or public health initiatives. On questions as to which there is legitimate disagreement within the medical community as to the desirability of particular practices, requiring doctors to endorse treatment protocols with which they disagree is the most problematic, but perhaps legitimate—we have not come to rest on this question—basis for compelling speech.

There is, of course, a basic irony in these compelled speech cases. The Free Speech Clause may arguably prevent the state from requiring a doctor to express an endorsement of one of two alternative treatments. But the Constitution might not prevent the state from prohibiting the doctor from providing one of the two treatments in the first place, so that the alternative treatment was the only relevant remedy available to physicians. One could argue that the state’s ability to control the medical treatments that may be provided to patients arguably undermines the rigorous application of compelled speech doctrine in these cases. And yet, in other speech arenas, the Supreme Court has rejected the “greater power to prohibit conduct subsumes the lesser power to regulate speech about such conduct” line of reasoning. Instead, the Court has insisted that the fact that a state may choose to ban or regulate an activity, but elects not to exercise that power doesn’t give the state a free pass to regulate speech about the activity. So the fact that a state arguably could require individuals to perform certain deeds—such as providing vaccines or drugs—does not automatically mean that the state could require individuals to convey certain messages or information about those alternatives.

Given the above analysis, do we think California’s Reproductive Fact Act is constitutional? On balance, we do, because the law operates as a regulation of medical practice to make sure that patients being served by clinics do not come away with a misleadingly narrow sense of the relevant family planning services that are available to them. The required notice mentions various services, but it does not require endorsement or recommendation of any procedure or decision. One of us does think the notice may be broader than it needs to be to in order to accomplish its objective of avoiding affirmative misrepresentations, but (as noted above) some degree of discretion must be afforded the legislature in this arena, provided there is not strong evidence that the legislature is using the provision of medical services as a pretext for forcing individuals or organizations to become the billboards for government speech. Both of us think these compelled speech disputes are difficult cases.