Opinion analysis: Divided court rules for anti-abortion pregnancy centers in challenge to California law

This morning the Supreme Court ruled in favor of crisis pregnancy centers – nonprofit groups that oppose abortion – in their challenge to a California law that was passed out of concern that the centers were holding themselves out as full-service reproductive health clinics and providing pregnant women with inaccurate or incomplete information about their options. Two lower federal courts had rejected the centers’ request to step in and block the state from enforcing the law, but today the Supreme Court reversed. By a vote of 5-4, the justices ruled that the centers were likely to prevail on their argument that the law, which requires the centers to make specific disclosures to their patients or in their advertisements, violates the First Amendment.

The case was a challenge to California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act – also known as the Reproductive FACT Act. The law, passed in 2015, imposes two different sets of requirements on the centers, depending on whether they are licensed to provide medical services. The centers that have licenses must post notices that inform their patients that they may obtain free or low-cost abortions and that include the number of the state agency that can connect the women with abortion providers. The centers that are not licensed must include disclaimers in their advertisements – in up to 13 languages – to make clear that their services do not include medical help.

The centers argued that both requirements violate the First Amendment. First, they alleged, requiring licensed centers to post notices about the availability of free or low-cost abortions conflicts with the anti-abortion message that they would like to convey. They also argued that the law singles out anti-abortion groups to publicize the availability of abortions. Second, the centers asserted, requiring unlicensed centers to include extensive disclosures in their advertisements makes it almost impossible for the centers to spread their own anti-abortion messages.

Shortly after California governor Jerry Brown signed the law, the centers in this case went to court, asking a federal judge in San Diego to put the law on hold while they litigated their First Amendment challenge. The district court declined to do so, and the U.S. Court of Appeals for the 9th Circuit affirmed that ruling, holding that the centers had not shown that they were likely to succeed on the merits of their challenge – a key factor in getting temporary relief. The Supreme Court agreed to review that ruling last fall, and today the justices reversed.

In an opinion by Justice Clarence Thomas, the majority began with the notice required for licensed centers. That notice, the majority concluded, is “content based” – that is, it “alters the content” of the licensed centers’ speech by requiring them to notify pregnant women about the availability of low- or no-cost abortions even though the centers’ goal is to persuade women not to have abortions at all.

Laws that regulate speech based on their content, Thomas explained, are normally subject to the most stringent standard of review, known as “strict scrutiny.” But even if the notice requirement for licensed clinics were subject to a less exacting standard of review, the law still does not pass muster, Thomas continued. First, the law is “wildly underinclusive,” because it does not apply to most of the community clinics in the state, nor does it apply to federal clinics or clinics that provide a full range of family-planning services. Second, there are other ways for the state to notify women about the availability of state-subsidized abortions without requiring the clinics to do so for it – for example, conducting an advertising campaign or posting notices on public property near the licensed centers.

Thomas and the majority reached a similar conclusion for the unlicensed centers. First, the majority observed, the only justification that California has cited for the law was “purely hypothetical”: Although the legislature had emphasized the need for pregnant women in the state to “know when they are getting medical care from licensed professionals,” the state had not pointed to any evidence “suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals.” And even if the state had advanced a concrete justification for the notice requirement, Thomas continued, the requirement still places too much of a burden on the unlicensed centers’ speech. Thomas noted that, as the state had agreed at the oral argument in March, a billboard for an unlicensed center bearing the message “Choose Life” would also have to include a 29-word notice “in as many as 13 different languages.” “In this way,” Thomas suggested, “the unlicensed notice drowns out the facility’s own message,” making it unlikely that an unlicensed center would even try to have “such a billboard in the first place.”

Concluding that both the licensed and unlicensed pregnancy centers “are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment,” the majority reversed the 9th Circuit’s ruling in favor of the state and sent the case back to the lower courts for new proceedings in light of today’s ruling.

Justice Anthony Kennedy joined Thomas’ opinion for the majority, but he also filed a concurring opinion that was joined by Chief Justice John Roberts, Samuel Alito and Neil Gorsuch (all of whom also joined the Thomas opinion). Kennedy warned that the FACT Act “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” And Kennedy strongly rebuked what he described as the California legislature’s “congratulatory statement” that the FACT Act “was part of California’s legacy of ‘forward thinking.’” It “is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.” Rather, Kennedy stressed, it “is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for generations to come.”

Justice Stephen Breyer dissented from today’s ruling, in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. In his view, both the licensed and unlicensed notice requirements would be likely to pass constitutional muster. Addressing the notice requirements for licensed centers, Breyer returned to a theme that he had pressed repeatedly (but ultimately unsuccessfully) at the oral argument: If, as the Supreme Court has ruled, a state can require a doctor to notify a woman seeking an abortion about adoption as an alternative option, why can’t it require a pregnancy center to tell a woman about abortion? As Breyer put it at the oral argument, “what is sauce for the goose is normally sauce for the gander.”

Turning to the notice requirements for unlicensed centers, Breyer pushed back against the majority’s assertion that the state had only shown a “hypothetical” interest in imposing the requirement. Even putting aside the testimony that the California legislature heard about the problems that result when pregnant women don’t receive health care right away, Breyer deemed it “self-evident that patients might think they are receiving qualified medical care when they enter facilities” – like the unlicensed centers – “that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care.” And although Breyer agreed that the notice requirement might in some circumstances create too much of a burden on unlicensed centers, he rejected the idea that such circumstances mean that the requirement is always unconstitutional. For example, although the notice requirement could obligate unlicensed centers to include disclosures in as many as 13 languages, only two languages – English and Spanish – would be required in “the vast majority of California’s 58 counties.”

This post was originally published at Howe on the Court.