For years, abortion-rights advocates have used the First Amendment as a weapon to challenge laws that require doctors to display an ultrasound or describe a fetus in detail to a patient.
Now it’s the anti-abortion side that says its speech rights are being violated.
The U.S. Supreme Court will hear arguments Tuesday on a California law that forces licensed pregnancy-counseling clinics that promote childbirth as an alternative to tell patients they might be eligible for free or discounted abortions. Pregnancy centers say they are being compelled to advertise a procedure they abhor.
“The government cannot gerrymander a law to target disfavored speakers, and it cannot require Americans to promote messages that violate their convictions,” said Kristen Waggoner, an Alliance Defending Freedom lawyer who represents the centers.
In a Supreme Court term without any cases that involve direct regulations on abortion, the case has become a proxy for the broader fight over the divisive issue. Abortion-rights groups say the California law helps keep “fake women’s health centers” from misleading vulnerable patients about their options. (Continued below.)
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“Deceiving and manipulating pregnant women is not a free speech right,” said Nancy Northup, chief executive officer of the Center for Reproductive Rights.
Under the measure, which took effect in 2016, licensed pregnancy centers must tell patients they can call a county health department to learn about state-funded prenatal, family planning and abortion services.
The law imposes separate requirements on centers that aren’t licensed as medical facilities but still offer pregnancy testing or ultrasound imaging. Those centers must post prominent notices on-site and in any advertisements to say they don’t have a medical professional on staff.
The challengers include the National Institute of Family and Life Advocates, a nonprofit organization that says it represents more than 110 pro-life pregnancy centers in California and more than 1,400 around the country. Two San Diego-area clinics are also pressing the case.
The Supreme Court ruled in 1992 that abortion doctors could be required to provide a variety of information to women, including a list of agencies that offer adoption services and information about the child-support obligations of the father. That holding was part of the Planned Parenthood v. Casey ruling, better known for upholding the core right to abortion.
California Attorney General Xavier Becerra says that reasoning should lead the court to uphold the state’s disclosure requirements. The Pennsylvania law upheld in Casey required doctors to provide “state-prepared publications containing extensive state messages,” he said in court papers.
The California measure, by contrast, “requires only a two-sentence notice that services are available to eligible women through public programs and that a county office can provide more information if it is desired,” Becerra wrote.
The centers and their supporters say the California law is fundamentally different from the type of informed-consent requirements upheld in Casey.
California’s law “has nothing to do with giving a patient information to assess the risks and consequences of a procedure a doctor in a certain medical facility is about to perform,” a Texas-led group of more than 20 states said in court papers.
The Trump administration is taking a middle ground in the case, urging the court to strike down the requirements for licensed centers but to uphold the rules for unlicensed centers.
The latter provision “merely requires service providers to disclose an accurate, uncontroversial fact about their own services: that they are not provided by a state-licensed medical professional,” U.S. Solicitor General Noel Francisco argued.
The centers say the rules are onerous, demanding the use of 48-point type and potentially requiring statements in 13 languages.
“It forecloses a number of communications channels completely for these centers,” Waggoner said.
The justices will rule by June. The case is National Institute of Family and Life Advocates v. Becerra, 16-1140.
