Symposium: Ensuring accurate information for patients does not violate the First Amendment

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health care services does not violate the First Amendment. In many different ways, health-care professionals are already required by law to provide information to patients so they can make informed choices. The California statute at issue in National Institute of Family and Life Advocates v. Becerra is no different.

The Reproductive FACT Act is quite straightforward. Licensed health-care facilities must post or distribute a notice that states, “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].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.

That’s all the FACT Act does. No doctor, other health-care professional or facility is required to provide contraceptives or abortions, or even provide referrals for these services. The new law simply ensures that clinics expose their patients to accurate information about the existence of state programs.

The FACT Act was created for the stated purpose of ensuring that “[a]ll California women, regardless of income, … have access to reproductive health services.” In the preamble to the bill, the legislature noted that more than 700,000 California women become pregnant each year and that one-half of these pregnancies are unintended. The legislature adopted the act because many women are not aware of the services available to them — and if they happen into a “crisis pregnancy center,” they’ll exit none the wiser.

The California legislature was concerned that there are 200 crisis pregnancy centers in California that hinder the ability of California women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.” The legislature found that crisis pregnancy centers, which include unlicensed and licensed clinics, employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

Crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have told pregnant women that their chances of getting breast cancer increase after an abortion. They have also warned clients that abortions are high-risk procedures that could well result in infection and death. Neither of these claims is true.

In light of this history, the California statute is clearly constitutional. The First Amendment burden on the crisis pregnancy centers is minimal: They are just required to post a notice. Their employees need not utter any words. The notices are entirely factual, informing patients about the existence of state programs. The required signs do not advocate anything. Requiring unlicensed facilities to disclose these facts to patients is just another way of ensuring that patients have full and accurate information.

Health-care professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. Whether the patient has a heart problem, wants plastic surgery or is considering how to handle an unintended pregnancy should make no difference. There is a constitutional right to abortion, after all.

More generally, businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. Courts consistently have upheld such disclosure requirements and rejected claims that they violate the First Amendment.

Thus, as the U.S. Court of Appeals for the 9th Circuit concluded, “California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion.” Even if the Supreme Court finds that the required posting is compelled speech, the traditional interest in ensuring that patients receive accurate and adequate information is sufficient to justify this law. A contrary holding would put in jeopardy all informed-consent laws in medicine and the countless laws that require posting of information in a myriad of contexts.

It is notable that the Supreme Court granted review only on the question of whether the California statute violates the speech clause of the First Amendment. The challengers to the law also raised in the federal district court and the 9th Circuit the issue of whether the law violates their free exercise of religion. Both lower courts rejected the religion claim based on the Employment Division v. Smith, which held that the free exercise clause of the First Amendment cannot be used to create an exception from a general law. In that case, Native Americans argued that an Oregon law prohibiting consumption of peyote infringed their free exercise of religion in that their religion required use of the hallucinogenic substance. The Supreme Court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and held that the free exercise clause could not be used to challenge the Oregon law because it was neutral, in that it was not motivated by a desire to interfere with religion, and because it applied to everyone in the state. Likewise, California’s Reproductive FACT Act is a neutral law of general applicability.

This also explains why NIFLA is distinguishable from Burwell v. Hobby Lobby Stores Inc. In Hobby Lobby, the Supreme Court held that it violated the Religious Freedom Restoration Act to require that a family-owned business provide contraceptive coverage for employees when doing so violates the owner’s religious beliefs. But there is no religion issue before the court in this case. Moreover, RFRA applies only to the federal government; it was declared unconstitutional as to state and local governments.

Most importantly, though, the California statute requires no more than that a notice be posted informing women of services that may be available to them from the government. This should be an easy case and the Supreme Court should uphold the California law.