The Supreme Court recently heard oral argument in National Institute of Family and Life Advocates v. Becerra, the latest case in the war over women’s health being waged across the country. At issue is a California law that requires Crisis Pregnancy Centers, among other entities, to disclose if they are not licensed medical providers and to provide information about abortion.
The Supreme Court granted certiorari and agreed to decide “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment.”
Crisis Pregnancy Centers
Crisis Pregnancy Centers (CPCs), the first of which opened in the 1960s, are faith-based organizations that are designed to prevent or deter pregnant women from obtaining abortions. They greatly outnumber abortion facilities in the US at this point. Many are operated under the national umbrella organizations Care Net and Heartbeat International, and some receive state funding. (An article in Huffington Post provides helpful background about CPCs here.)
What is a CPC? It is hard to classify. It is not a medical clinic or doctor’s office, as CPCs often have no licensed medical professionals on staff. Yet, CPCs typically offer pregnancy tests and ultrasounds to their clients, along with diapers and other newborn supplies, suggesting to clients that they might be receiving medical care. The centers lure pregnant women in with billboards and advertising that suggests they will provide counseling and information about choices for dealing with an unwanted pregnancy. But the counselors never mention abortion, will not answer questions about abortion, will not provide referrals to clinics or doctors who perform abortion procedures, and engage in a variety of techniques to squelch a client’s interest in such information. (Some of these techniques are shown in a counselor–client interview that is included in a documentary about the anti-abortion movement called The Last Abortion Clinic (PBS)).
Not all CPCs operate in the same manner. But common practices that are well-documented often rely on deception, shame, or confusion to get “abortion-minded” women through the door. The documented techniques include: (1) co-locating next to abortion or other reproductive medical clinics; (2) misleading clients into believing that they are receiving medical care and advice, sometimes by having non-medical employees don medical uniforms, but also by using neutral names that hide the anti-abortion agenda; (3) suggesting in advertising or other materials that the CPC provides abortion in order to lure unsuspecting pregnant women into the facility for anti-abortion counseling; (4) providing misleading or false information about the risks of abortion or the safety of pregnancy, making it difficult for a client to make an informed choice about whether to carry the pregnancy to term or not; (5) discouraging the use of contraception, often with false statements about its efficacy and safety; (6) using tactics to delay a woman’s contact with an abortion provider so that obtaining an abortion becomes too costly, risky, or illegal; and (7) providing ultrasounds without disclosing that the employee is unable to glean medically relevant information from it such as the gestational age or any medical concerns with the fetus.
CPCs have flourished, in part, because they have received taxpayer funding in several states. In Texas, where women’s health is notoriously poor (a snapshot is provided here), CPCs outnumber abortion clinics by almost 10:1, and the state has funneled the majority of its women’s health and family planning budget into those centers. Women across the state, especially low-income women, are paying a steep price for the offsetting loss in care from licensed medical providers and access to contraception.
California’s Reproductive FACT Act
Although many states, as discussed above, actively favor CPCs and promote an anti-abortion agenda through a variety of laws and funding decisions, California chose to take a different stand. Through its Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the FACT Act), the state legislature sought to ensure that “[a]ll California women, regardless of income, . . . have access to reproductive health services.” The bill relied on several findings, including that many California women are not aware of state-sponsored healthcare programs, that CPCs operate to hinder women’s ability to receive accurate information about their reproductive rights, and that CPCs rely on deceptive advertising and counseling practices in order to reduce women’s opportunity to choose to terminate a pregnancy.
Based on those findings, the FACT Act requires a series of disclosures. Licensed clinics whose primary purpose is providing family planning or pregnancy-related services, and which provide reproductive services or advice, must disseminate a notice that informs patients that “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 telephone number].”
For unlicensed clinics, which includes most CPCs, they have additional required disclosures as long as they do at least two of the following things: (1) offer ultrasounds or prenatal care; (2) offer pregnancy tests; (3) advertise or solicit clients with offers of ultrasound, pregnancy tests, or pregnancy options counseling; (4) collect health information from clients. Those clinics must disseminate a notice stating that “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” This notice must be disseminated on site, but also “in any print and digital advertising materials including Internet Web sites.”
The punishment for violating the Fact Act is a civil penalty of $500 for a first offense and $1000 for each subsequent offense.
Legal Challenges to the FACT Act
This case involves three different religiously-affiliated non-profit corporations who challenged the mandatory disclosures required by the FACT Act on First Amendment grounds. Each challenger operates CPCs in California, and each pursues a strongly anti-abortion mission. They sought a preliminary injunction that would prevent California from enforcing the law pending a court decision on the merits about whether the law was constitutionally valid.
The federal district court denied the motion for a preliminary injunction, concluding that the CPCs had not shown that they were likely to succeed on the merits—a requirement for emergency relief. On appeal, the Ninth Circuit affirmed the denial, concluding that the CPCs had not shown that the law likely violated the First Amendment. It concluded that California was within its power to regulate the practice of medicine and to guard against deceptive practices. That ruling is now under review by the Supreme Court.
The CPCs argue first that the compelled disclosure for licensed facilities, which informs the reader about the existence of publicly funded reproductive healthcare, conflicts with the anti-abortion message that animates their very existence. They also argue that only anti-abortion groups are singled out to provide this message, which constitutes viewpoint discrimination. With respect to the mandatory disclosures for unlicensed centers, the CPCs argue that they are too burdensome—“that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media” and that those centers are now compelled to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”
California argues the disclosures are justified by the fact that low-income women often don’t know about the publicly funded options available to them—and then become confused about whether the care and advice they receive at CPCs is provided by medical professionals. Moreover, California argues that the required disclosures are permitted within the rules regarding professional speech and necessary in this case to prevent confusion about the nature of the care being offered to pregnant women.
The federal government filed a friend-of-the-court brief before the Supreme Court arguing that the compelled disclosure for licensed facilities—providing information about publicly funded abortion and family planning care—violates the First Amendment, but that the compelled disclosure for unlicensed facilities—simply requiring centers to “disclose an accurate, uncontroversial fact about their own services: that they are not provided by a state-licensed medical professional—does not.
The crux of the legal battle about whether these mandated disclosures violate the First Amendment may revolve around the appropriate level of judicial scrutiny. The higher the scrutiny, the harder it is for the government to defend its law.
At oral argument, several of the justices seemed skeptical about the constitutionality of the FACT Act, at least the portion that affects licensed clinics. The more conservative justices were concerned that the law singles out anti-abortion facilities for compelled speech, suggesting an intent to discriminate on the basis of viewpoint. They were also concerned about the burden imposed by requiring the disclosures accompany all advertisements, whether on billboards or the internet. The outcome is uncertain—and a ruling is expected in June—but court-watchers seemed to conclude that at least some parts of the law might be struck down. For those who want help reading the tea leaves, there is a great online symposium at SCOTUSblog, in which experts analyze this case.
Goose and Gander? If the Court Invalidates the FACT Act, Will Anti-Abortion Laws Fall As Well?
Although this case tests the ability of states to use speech to facilitate access to abortion and contraceptive services, most speech and information questions in the abortion context are just the opposite. Many states require abortion providers to say and do certain things intended to discourage abortion as part of the “informed consent” process, even though the statements they are required to make are often misleading or false. The compelled speech in several of these states is demonstrably false at worst—at odds with current scientific thinking at best. Doctors are required in some of these states to warn about a supposed link between abortion and breast cancer, the ability of a pre-viable fetus to feel pain, and a likelihood of serious and long-term mental health consequences, including suicide. None of these statements is true, yet state law requires doctors to make them before they can legally perform a legal abortion. Can states compel anti-abortion speech?
In Planned Parenthood v. Casey (1992), the Supreme Court held that states can compel that doctors provide “truthful, nonmisleading information” to women seeking an abortion. But the materials at issue in that case were quite different than those compelled by current state laws. Today, the speech mandates are more intrusive, require the doctor to make certain statements as opposed to merely providing a state-sponsored piece of literature, and include, as discussed above, myriad false statements. If the Supreme Court invalidates all or part of the FACT Act, would these laws be vulnerable to challenge as well? Federal appellate courts have upheld some of these laws, but struck down others on First Amendment grounds. A ruling for the CPCs in this case could open the door to successful challenges by pro-choice advocates. (An article in Slate by Dahlia Lithwick and Mark Joseph Stern provides an excellent analysis of this issue.) At oral argument, Justice Breyer seemed to suggest that such challenges would be the logical outgrowth of a ruling in favor of the CPCs in Becerra, and Justice Sotomayor seemed of like mind on that issue.
If the FACT Act is invalidated in whole or in part, California could—and should—rewrite the law to cure whatever constitutional defects the Court identifies. The proliferation of CPCs around the country at the expense of publicly funded women’s health centers is harming women. CPCs should be permitted, of course, to choose and promote an anti-abortion message—and to provide whatever services it believes will facilitate the choice to carry a pregnancy to term. But their reliance on misleading or false information to accomplish these goals is unacceptable. Just as adolescents should be given comprehensive and accurate sex education, adult women, regardless of economic means, should have access to accurate information and safe care when making reproductive choices.
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I wrote this column while grieving for my friend, former colleague, and former editor, Julie Hilden, who passed away on March 17, 2018, from early onset Alzheimer’s disease—she was only 49. I first met Julie while working at Williams & Connolly, a law firm in Washington, DC. We became fast friends and clung to each other while navigating the hard-charging world of high-profile litigation. Without our daily trips for coffee, less-than-daily trips to the office gym, and precious moments sneaking out for a walk or sushi or a Bento Box at her favorite lunch place, I’m not sure we would have survived the intensity and long hours that marked our early years in the legal profession. Julie gravitated immediately to First Amendment work at the firm—working with amazing lawyers on fascinating cases. She somehow also found time to finish and publish a memoir, in which she told the story of her mother’s battle and premature death from the disease that would ultimately claim her as well. It was brilliant, beautiful, and brutally honest.
As Julie transitioned from law practice to full-time writing, she retained that love of the First Amendment and all the weird twists-and-turns it might lead you on in litigation. She was a founding editor of FindLaw’s Writ, an internet magazine that morphed in 2011 into Justia’s Verdict. I can still recall when Julie invited me in 2000 to “write an article on the Internet.” In a world before blogging, smartphones, and most of the technology we rely on today, this seemed like a strange idea. But I trusted Julie and assumed that if she thought this was for some reason a good idea, then it must be. I wrote my first column in July 2000 on whether Darva Conger—the woman who met and married a man during a two-hour reality television show called “Who Wants to Marry a Millionaire?”—should be granted an annulment. Eighteen years later, I am still writing biweekly internet columns, which has given me an amazing platform to try out ideas, get feedback from lawyers and lay people alike, and to be an active part of the conversation in my areas of expertise. While I have written on these sites about the law of everything from grandparent visitation to gay marriage to upskirting, Julie remained focused on First Amendment cases. She wrote about stolen valor, sex tapes, sexting, begging, child-naming, protesting, press retractions, “ag gags,” online bullying, and hundreds of other topics that tested, explored, challenged, or threatened our rights of free speech (the archives of her columns can be found here and here). I would have loved nothing better than to e-mail her today about the Becerra case and get her thoughts, which would have been insightful and well-informed. And she would have dropped what she was doing to talk through the issues because she was, above all else, a person whose life was marked by generosity. She was loved and admired and will be deeply missed by all whose lives she touched.