Does a California law requiring licensed pregnancy clinics to disseminate a notice containing information about state-funded family planning services including abortion and requiring unlicensed pregnancy clinics to disclose their unlicensed status violate the First Amendment’s free speech clause?
This case will determine how much a state can force a medical provider to say when that speech is antithetical to the provider’s religious beliefs. California’s Reproductive FACT Act (“the Act”) requires licensed pregnancy-service facilities to disseminate a notice stating 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” and providing a phone number that patients can call to seek more information. The Act also requires unlicensed clinics to distribute a notice disclosing that they are not licensed by the state. The National Institute of Family and Life Advocates (“NIFLA”) argues that the Act unconstitutionally compels speech and should be subjected to strict scrutiny, which it cannot survive. NIFLA further contends that the Act discriminates impermissibly against pro-life clinics based on their viewpoint. California responds that the Act is a permissible exercise of the government’s authority to regulate speech between professionals and their clients, which survives any level of scrutiny. California also claims that the Act addresses fraudulent practices affecting women’s understanding of their reproductive healthcare choices and does not suppress pro-life viewpoints. Will free speech prevail over regulation of doctors and will the result benefit pregnant women?
Questions as Framed for the Court by the Parties
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.
In 2015, the California Legislature passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“the Act”) into law, declaring in the bill’s text that “all California women, regardless of income, should have access to reproductive health services.” According to the Legislature, California women’s access to information about these state reproductive health resources was limited by crisis pregnancy centers (“CPCs”), which held themselves out as reproductive health centers. The Legislature further contended that the CPCs worked to discourage women from having abortions, sometimes by disseminating misinformation or employing intimidation tactics. The Act required all licensed clinics to provide clients with a notice reading, “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].” Additionally, the Act required unlicensed medical clinics to provide clients with written notice of their unlicensed status.
National Institute of Family and Life Advocates and two other religiously-affiliated non-profit corporations (collectively “NIFLA”) believe “that human life is a gift of God”; their mission is to “empower the choice for life.” Thus, they are opposed to abortion and provide neither abortions nor referrals for abortions. In October 2015, NIFLA sued California Attorney General Kamala Harris in federal district court, alleging that the Reproductive FACT Act violated its First Amendment rights to free speech and free exercise. NIFLA argued that, given its anti-abortion stance, requiring its clinics to disseminate information regarding state-sponsored abortion services violated its First Amendment rights. NIFLA thus requested that the district court issue a preliminary injunction that would prevent California from enforcing the Act during the course of the litigation. The district court denied the motion for a preliminary injunction. While NIFLA claimed that the Act’s mandated disclosures violated its free speech rights, the district court disagreed, determining that the Act withstood various levels of judicial scrutiny.
A year later, in October 2016, NIFLA appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the decision of the district court, finding that the Act “does not discriminate based on viewpoint,” and pointed out that lower levels of scrutiny had previously been applied to similar claims. Additionally, the Ninth Circuit concluded that the Act’s licensed notice, which would compel NIFLA’s clinicians to inform their clients of the state-sponsored abortion resources, survived the appropriate level of review. With respect to NIFLA’s free-speech argument concerning the unlicensed notice, which would require some of its clinics to disclose their unlicensed status to patients, the Ninth Circuit held that the notice would survive any level of scrutiny. The court reasoned, “California has a compelling interest in informing pregnant women when they are using the . . . services of a facility that has not satisfied licensing standards set by the state.” Finally, the Ninth Circuit subjected the Act to rational basis review, a level of scrutiny that it withstood. The Ninth Circuit affirmed the judgement of the lower court.
DOES THE ACT REGULATE COMMERCIAL OR PROFESSIONAL SPEECH?
NIFLA argues that the clinics to which the Act applies engage in fully protected, pro-life speech. In this vein, NIFLA denies that the clinics’ speech should receive lesser scrutiny because it is either commercial or professional in nature. . First, NIFLA points out that pro-life clinics are non-profit organizations that do not charge for the services they provide and do not function for commercial purposes—i.e., their speech is non-commercial. Instead, NIFLA maintains that these clinics exist to propagate their pro-life views, making them expressive rather than economic entities. Even if the clinics’ speech could be characterized as commercial to some extent, NIFLA notes that the Court has declined to recognize speech as commercial in nature when it is “otherwise inextricably intertwined with fully protected speech.”
In terms of professional speech, NIFLA emphasizes that the Supreme Court has never recognized such a category for First Amendment purposes. Moreover, NIFLA challenges the Ninth Circuit’s finding that the Act regulates speech within the professional relationship at all, observing that it requires licensed clinics to disclose information as patients enter and mandates that unlicensed clinics include information in their advertising materials. Thus, NIFLA asserts that the Act compels speech between the clinics and visitors before any real professional relationship commences. Finally, NIFLA refutes the notion that the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey established a lower standard of scrutiny for speech regulations in abortion cases, claiming that this decision simply acknowledged that the government may impose minimal informed disclosure requirements on medical professionals performing serious procedures. Because pro-life clinics do not offer abortions, NIFLA contends that Casey is not relevant.
California replies that whether pro-life clinics charge for services is irrelevant under the Supreme Court’s free speech precedents. According to California, in prior cases involving the free provision of legal services, the Court focused on whether the government improperly interfered with the plaintiffs’ associational rights, not on whether the plaintiffs demanded payment. California claims that a rule imposing greater scrutiny for regulations on the speech of non-profits contravenes the policy that a client’s reliance on professional advice does not change depending on their ability to pay for that advice. Indeed, California points out that indigent patients who seek free reproductive health services from pro-life clinics are more likely to benefit from the disclosures that the Act requires than are other, wealthier patients.
California contends that the Supreme Court has implicitly recognized a category of professional speech based on the notion that the government can regulate the practice of licensed professions. California observes that licensed clinics claim to exercise professional judgments on behalf of their clients and should therefore be subject to regulation as part of the medical profession. Further, California maintains that the required disclosures are professional even if they are made by non-professional staff members, since state law places all licensed clinics under the supervision of a licensed doctor. California cites Casey in support of this proposition, claiming that it upheld abortion disclosure requirements “in light of [their] professional character and context.” Moreover, California asserts that the Act’s notice provisions for licensed clinics are less burdensome than the disclosures that the Court sustained in Casey. Finally, California contends that Act’s notice provisions for unlicensed clinics fall squarely within a long line of cases permitting the government to ask that organizations clarify their professional status to the public.
DOES THE ACT COMPEL SPEECH OR REGULATE IT BASED ON ITS CONTENT?
NIFLA contends that the Act must be subjected to strict scrutiny because it compels pro-life clinics to speak the government’s pro-choice message in violation of the First Amendment’s embedded guarantee of a right to remain silent. NIFLA asserts that this is true even if the Court accepts that the Act requires purely factual disclosures given that “either form of compulsion burdens protected speech.” Because the Act compels speech, NIFLA adds that it constitutes a “presumptively unconstitutional” content-based speech regulation under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert. NIFLA alleges that the Ninth Circuit erred in finding that historical “exceptions” to Reed’s strict scrutiny rule paved the way for a new professional speech doctrine. In fact, NIFLA asserts that these exceptions cover only content-based regulations of unprotected speech and do not extend to regulations of protected speech like the Act. NIFLA stresses that the Act’s specific dissemination requirements will crowd out the affected clinics’ attempts to espouse their pro-life viewpoints because the notice confronts clients the moment they enter and must be printed in multiple languages with a large font. Thus, NIFLA concludes that the Act simultaneously suppresses and forces speech.
California repudiates the claim that the Act unconstitutionally suppresses speech, observing that pro-life clinics remain free to promote their views on family planning independent of the required notices. California further claims that NIFLA never raised its objections to the Act’s multiple language and font conditions before the district court and that the record does not support these contentions. Turning to compelled speech, California asserts that the Act does not run afoul of either the Supreme Court’s precedents in this area or its recent decision in Reed. Beginning with the compelled speech cases, California observes that the Act does not demand that the clinics endorse any belief—instead, it asks them to post neutral facts regarding the availability of state-funded programs or their own licensing qualifications. California contends it is unlikely that anyone will take the notices to be expressions of the clinic’s own views. California also questions whether the Act compels speech at all, suggesting instead that it enforces “expressive conduct,” which is subject only to intermediate scrutiny under existing First Amendment jurisprudence. As for the contention that Reed mandates strict scrutiny for all content-based regulations of speech, California highlights how such an interpretation would threaten innumerable longstanding laws which the Supreme Court has never understood to be invalid under the First Amendment.
DOES THE ACT DISCRIMINATE BASED ON VIEWPOINT?
NIFLA alleges that the Act is unconstitutional because it impermissibly discriminates based on viewpoint. NIFLA underscores two aspects of the statute to support this argument: its legislative history and practical effect. According to NIFLA, the Act’s exemptions for clinics that are already enrolled in California’s state-funded medical programs—and thus already provide abortions—combined with its failure to cover doctors in private practice and licensed general practice clinics indicates that it was intended to target only pro-life clinics. As NIFLA points out, the First Amendment bans such targeting if it is based on opinions that the government dislikes. NIFLA further asserts that this dislike is apparent from statements that the Act’s legislative sponsor made noting the “unfortunate” number of crisis pregnancy centers in California. Ultimately, NIFLA urges the Supreme Court to adopt a rule that viewpoint discrimination against private speakers is per se unconstitutional.
California rejects the assertion that the Act discriminates against clinics based on their pro-life stance. In terms of the Act’s applicability, California observes that it would not make sense to ask clinics that are enrolled in state-funded medical programs to disclose a list of services they already provide. Moreover, California asserts that NIFLA misreads the Act’s legislative history—the bill’s sponsor was expressing dismay over the alleged deceptive practices that crisis pregnancy centers often deploy to mislead women, not over their opinion that abortion is reprehensible. Thus, California maintains that the Act should not be subjected to heightened scrutiny because it is not viewpoint-discriminatory.
DOES THE ACT SURVIVE THE APPROPRIATE LEVEL OF SCRUTINY?
NIFLA argues that the Act would fail any level of judicial scrutiny. Under strict scrutiny, NIFLA asserts that California cannot show either a compelling interest or that they selected the least restrictive means to serve that interest. According to NIFLA, California’s general interest in informing women of their reproductive health options or, alternatively, in separating licensed from non-licensed clinics is too broad to qualify as compelling. Further, NIFLA lists several means that California could have employed to serve these same interests without burdening the speech rights of pro-life clinics, including compiling a public registry of unlicensed clinics, prosecuting clinics for fraud, or initiating an advertising campaign to provide women with the same information. Because California failed to pursue any of these options, NIFLA contends that the Act should be struck down under strict or intermediate scrutiny.
California claims that the Act survives no matter what standard of constitutional scrutiny applies. Specifically, California refutes the argument that a registry or public advertising campaign could have achieved their stated interest because neither of these methods would have been effective in reaching women seeking reproductive health care. California likewise observes that the alternative option of prosecuting individual clinics for fraudulent practices might result in even more aggressive policing of pro-life speech than the approach that the Act adopts. Accordingly, California posits that it has selected the means least likely to burden speech in furtherance of its critical interest in women making independent informed judgments regarding their own health care.
ARE FREE SPEECH RIGHTS SECONDARY TO ENSURING THE EFFICACY OF MEDICAL PROVIDERS?
Numerous organization supporting NIFLA, including the Cato Institute and Massachusetts Citizens for Life, assert that the freedom of speech cannot allow the government to compel the speech it wants. The Cato Institute further points out that as a consequence of California’s position, a state could require a doctor to urge a woman to vote for Obama to receive low-cost health insurance. Similarly, Twenty-Three Illinois Pregnancy Centers, also supporting NIFLA, suggest that California’s position would allow a state to force anti-euthanasia centers to disseminate information about the availability of euthanasia services. Jews for Religious Liberty likewise argue that California’s position could be used to force Orthodox Jewish organizations to abandon their cultural approaches to counseling. The Institute of Justice, in turn, suggests that the threat to free speech is real: states have already used California’s position to silence tour guides, fortunetellers, and advice columnists. For these reasons, Jews for Religious Liberty conclude that the freedom of speech cannot allow the FACT Act.
Writing in support of California, Compassion & Choice responds that NIFLA’s interpretation of the relationship between First Amendment rights and state-mandated disclosures would undermine medical patients’ rights to meaningful treatment options. In particular, Compassion & Choice explains, healthcare professionals who provide end-of-life care to patients are often obligated, under various state or federal laws, to inform patients of their rights to dictate what kinds of treatment or medicines should be administered in the event that they are no longer able to communicate their decisions to others. Compassion & Choice suggests that NIFLA equates mentioning a treatment option with endorsing that treatment. Compassion & Choice thus contends that under NIFLA’s theory of the First Amendment, a health provider who objected to a given treatment option would be free to refuse to provide any information regarding that treatment. Compassion & Choice says that, for example, NIFLA’s position would excuse doctors from a wide body of state and federal laws regulating the disclosure of end-of-life treatment options. Compassion & Choice further contends that a ruling for NIFLA would mean that a healthcare provider who morally objects to a do-not-resuscitate order would be legally shielded from refusing to honor the order. Accordingly, Compassion & Choice claims, a patient’s lawful treatment choice could be undermined by her healthcare provider’s personal viewpoint.
DOES THE FACT ACT HARM OR BENEFIT WOMEN?
Writing in support of NIFLA, the Charlotte Lozier Institute (“the Institute”) argues that the FACT Act undermines the mission of the pregnancy centers and threatens their existence. The Institute argues that this is an unacceptable result considering that the pregnancy centers serve over 2.3 million people and reduce community costs by over $100 million. Twenty-Three Illinois Pregnancy Centers echo this concern, maintaining that that by pointing potential clients toward state abortion resources, the Act potentially forecloses women’s access to the crisis pregnancy centers’ alternative pregnancy services. Moreover, numerous health organizations supporting NIFLA, including the American Association of Pro-Life Obstetricians and Gynecologists and the American College of Pediatrics, assert that the pregnancy centers are not doing anything unethical or illegal. These groups contend that NIFLA provides high quality of care that meets the medical profession’s ethical and legal obligations and that they do not have an obligation to refer patients for abortions, except in emergency circumstances.
In support of California, Social Science Researchers (“the Researchers”) write that crisis pregnancy centers exist primarily to discourage women from having abortions. The Researchers point to studies suggesting that CPCs mislead clients regarding the nature of services available, and provide clients with inaccurate information regarding reproductive medicine. For example, the Researchers point out that CPCs warn clients of correlations between abortion and breast cancer, and abortion and infertility, both of which have been debunked by the scientific community. Finally, the Researchers contend that California CPCs often fail to provide pregnant women with time-sensitive prenatal care, and that the Act provides a necessary corrective by informing women where and how they can access prenatal services.
- Amy Howe, Justices Take on First Amendment Challenge to State Abortion Disclosure Laws: In Plain English, SCOTUSBlog (Dec. 11, 2017).
- Dahlia Lithwick & Mark Joseph Stern, Be Careful What You Sue For, Slate (Nov. 13, 2017).
- Erwin Chemerinsky, Ensuring Accurate Information for Patients Does Not Violate the First Amendment, SCOTUSBlog (Dec. 12, 2017).
- Nicole Russell, California Protects Everything Except Free Speech, Wash. Examiner (Feb. 6, 2018).
- Ilya Shapiro, “Hey California, Stop Telling Us What to Say at Work!,” SCOTUSBlog (Dec. 13, 2017).