Justice Breyer’s dissenting opinion in NIFLA v. Becerra stated a simple message: the state can favor adoption and abortion. That’s evenhanded. In contrast, the majority sent a strong, anti-choice signal conveying its approval of religions that oppose abortion.
Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan—the three women justices on the Court—wrote a powerful dissent in Becerra. That case involved a California law that applied guidelines to pro-life, crisis pregnancy centers, which were devoted to limiting abortion rights. Crisis pregnancy centers are “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center.” According to the state law, “Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.”
The dissenters correctly wrote that “a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion,” as the California law did. The dissenters proposed a fair and even test, which lets the states pass medical regulations, as they frequently do. They recommended evenhandedness, noting “what is sauce for the goose is normally sauce for the gander.”
A majority of the Court disagreed. Justice Thomas, joined by Roberts, Kennedy, Alito, and Gorsuch, invalidated the California statute. They concluded that the California law compelled abortion clinics to speak in violation of the First Amendment. The majority sent a strong anti-choice signal, which is likely to become even stronger with the addition of a new justice to the United States Supreme Court.
The Prequels
In 1992, it was possible that the Court would overrule Roe v. Wade, its landmark case that legalized abortion and expanded freedom for women across the country. Roe survived after Justice Kennedy joined Justices O’Connor, Blackmun, Stevens, and Souter in keeping Roe alive, but modified, in Planned Parenthood v. Casey. Casey struck down several anti-abortion provisions of a Pennsylvania abortion law.
Roe survived, but was weakened by the Pennsylvania case. Casey replaced Roe’s test with an undue burden standard. The new test allows courts to uphold anti-abortion laws unless they place an undue burden on women’s rights, meaning a “substantial obstacle in the path of a woman seeking an abortion.” Casey set the stage for other anti-choice laws to survive.
Roe’s weakening was evident in the Court’s second partial-birth abortion (PBA) case, Gonzales v. Carhart (2007). In 2000, the first PBA case invalidated a state partial-birth abortion law because it did not have an exception if the health of the pregnant woman were threatened. Stenberg v. Carhart. Nonetheless, in Gonzales the Court allowed a health-exception-free congressional statute to stand. In that case, dissenting Justice Ginsburg criticized Kennedy for “demean[ing] women,” arguing that his opinion “harks back to draconian days where the Court found that a woman’s life was defined by motherhood and household duties.”
An often-mentioned and influential part of Casey was its recognition that states may not always support abortion. As the case stated in 1992,
[t]o promote the State’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right. [emphasis added]
This part of Casey, which was joined by Justice Kennedy, was long used as a justification for states favoring childbirth while limiting abortion rights.
Current Law
Justice Kennedy returned with a pro-choice vote in 2016. Casey survived in that year’s Texas case, Whole Woman’s Health v. Hellerstedt. Kennedy joined Breyer’s opinion with Ginsburg, Kagan, and Sotomayor. The Court struck down two requirements. The first required physicians performing abortions to get difficult-to-obtain admitting privileges at local hospitals. The second required abortion clinics to meet the state’s surgical center requirements, meaning that they had to have the same size hallways and other facilities as units that did surgeries of all sorts all the time.
The Whole Woman’s majority recognized that the laws had closed many of Texas’s abortion clinics, and therefore put an undue burden on women throughout the state. Justice Ginsburg made an important point about abortion’s safety in her concurrence:
Texas argues that H.B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6–10 (collecting studies and concluding “[a]bortion is one of the safest medical procedures performed in the United States”); Brief for Social Science Researchers as Amici Curiae 5–9 (compiling studies that show “[c]omplication rates from abortion are very low”).
Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. [emphasis added]
Like Justice Ginsburg, California also knew about abortion’s safety when it passed the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT), its regulations on clinics whose primary service is to pregnant women. As noted above, many of these clinics were “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center.” California wanted to make sure that its citizens understood their access to abortion within the state, and was concerned that the pregnancy centers were not giving full and accurate information. The state therefore decided that “[l]icensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.” The district court and the Ninth Circuit found no First Amendment violation.
Like those courts, the dissenters correctly noted that states frequently pass speech-affecting laws without violating the First Amendment. Disclosure laws and professional regulations usually are reviewed by whether they are rational, not instead, as the majority insisted, subjecting them to the strictest scrutiny. The dissent reminded us that acceptable laws, for example, “simply alert the public about child seat belt laws, the location of stairways, [] the process to have their garbage collected,” and the availability of abortion. Or, as in Zauderer, states properly make information available by requiring contingent-fee lawyers to tell their clients what the real cost of their services will be.
The dissent reminds the majority that these California regulations are matters of health because they are matters of abortion. Speech is affected “only ‘as part of the practice of medicine.”” The dissent accuses the majority of identifying such a new, strict scrutiny, First Amendment standard that litigation will be extensive and ongoing. Indeed, the dissent claims, the majority’s result will weaken the First Amendment by “disservice through dilution.”
In Becerra, Breyer significantly refers to Casey’s rule favoring childbirth, figuring it provides the most accurate and straightforward answer to the question about California’s laws. “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”
That is the evenhanded rule. The majority instead applies strict, content-based scrutiny, and concludes the government is forcing its opponents to speak. The concurrences argue about viewpoint-based discrimination. The usually applicable cases cited by the dissent are dismissed as not applying to this particular law. It is odd that the majority completely misses the dissent’s important point, that the majority’s logic allows the state to favor childbirth but not abortion.
The majority prefers religious rights to the freedom to choose abortion. As Justice Kennedy wrote in his concurrence:
For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.
The majority’s reasoning here is sadly consistent with its other cases, where Christian religion trumps contraceptive insurance (Hobby Lobby), the employment anti-discrimination laws (Hosanna-Tabor), LGBT marital rights (Masterpiece Cakeshop), and now, evenhanded information about abortion.
We will see if, on remand, the courts agree with the majority or find a way to take the more accurate side of the dissent.
The Feared Sequel
The newest Supreme Court member, Justice Gorsuch, was the fifth voter to rule the California laws unconstitutional. He joined Justices Thomas, Roberts, Alito, and Kennedy in sending a strong anti-choice message, rejecting the evenhanded and balanced abortion/adoption rule favored by the dissent. It’s evenhanded to let people choose abortion or not, as they individually prefer, as a constitutional right. It’s evenhanded to have the state promote childbirth and abortion. It’s not evenhanded to support those who want to block women’s access to their constitutional right.
President Trump has promised to put another anti-Roe justice on the Court, to replace Anthony Kennedy. Justice Kennedy has courageously voted against abortion restrictions, especially by joining the Court’s opinions in Casey and Whole Woman’s Health. But his votes in Gonzales and Becerra remind us that there are many ways and many times to cast anti-choice votes. Women should praise the dissenters for consistently sending a message that defends the constitutional right to abortion against all who oppose it.
And advocate for a new pro-Roe justice.