On Monday, the Supreme Court agreed to hear an appeal by a group of crisis pregnancy centers challenging California’s “Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act” (FACT Act), granting certiorari in National Institute of Family and Life Advocates v. Becerra.
Among other things, the FACT Act, which NARAL co-sponsored, requires “licensed covered facilities” to inform all clients, either in a conspicuous public notice or in a printed or digital notice distributed to clients at the time of service, of the following: “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 [telephone number].”
A “licensed covered facility” includes any non-profit organization that provides two or more services, such as obstetric ultrasounds, prenatal care, pregnancy testing or pregnancy diagnosis, or advertises or solicits patrons with offers to provide pregnancy tests or pregnancy options counseling. However, the FACT Act expressly exempts from the statutory disclosure mandate clinics directly operated by the United States or any of its agencies, as well as licensed primary care clinics that offer both birth control and abortifacients and are either Medi-Cal providers or participants in the Family Planning, Access, Care, and Treatment Program. In other words, the FACT Act targets only licensed covered facilities that are pro-life crisis pregnancy centers.
The FACT Act also regulates unlicensed crisis pregnancy centers (those that do not perform medical services) and requires those centers to include, in both print and digital ads, extensive disclaimers in large font and in as many as 13 languages, stating that they are not a licensed medical facility.
After Gov. Jerry Brown, D-Calif., signed the FACT Act into law on Oct. 9, 2015, several pro-life crisis pregnancy centers filed a separate suit against Xavier Becerra, California's attorney general and the named defendant in all three cases. In NIFLA, the plaintiffs included both licensed and unlicensed crisis pregnancy centers: The licensed centers argued the FACT Act violated their free speech and free exercise rights, while the unlicensed centers asserted that the compelled disclaimer “drowns out the centers’ pro-life messages and discourages them from speaking through advertisements because California’s voluminous required statements make ads cost prohibitive.” Two additional lawsuits filed by separate coalitions of licensed crisis pregnancy centers similarly argued the FACT Act compelled speech in violation of their First Amendment rights to free speech and free exercise of religion.
In the three federal lawsuits, the crisis pregnancy centers sought a preliminary injunction banning the state from enforcing the FACT Act. The district court denied the motion and the crisis pregnancy centers appealed to the 9th Circuit. In three separate, but parallel, decisions released the same day, the 9th Circuit affirmed the lower courts’ decisions, concluding that the state could compel the speech at issue because it was professional speech. The circuit court likewise held that because the law was neutral and generally applicable, the FACT Act did not violate the plaintiffs’ free exercise rights. After concluding the plaintiffs lacked a likelihood of succeeding on their free speech or free exercise claims, the Ninth Circuit denied their motion for preliminary relief.
Citing a conflict between the 9th Circuit’s decision and the 2nd and 4th Circuits’ holding that state laws compelling crisis pregnancy centers to direct clients to abortion providers are unconstitutional, the three coalitions of pro-life non-profits sought review in the Supreme Court. The Supreme Court has been considering the petitions for review since they were filed back in March; the justices discussed the cases at six different conferences, before announcing Monday it will hear the appeal in the NIFLA case. The Supreme Court took no action on the petitions for review pending in the other two cases, which is not surprising: Any ruling in the first NIFLA v. Becerra case will control and the plaintiffs in NIFLA included both licensed and unlicensed crisis pregnancy centers, allowing justices to consider the dual-challenge in one case.
However, in granting the petition for review, the Supreme Court limited the issue on appeal to the following question: “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.” The NIFLA petitioners had requested the Supreme Court also consider whether the FACT Act violated their religious liberty rights under the Free Exercise clause.
The Supreme Court’s decision to limit the question on appeal to the free speech claim should be interpreted with care and not read as a further judicial retreat on religious liberty protections. Rather, with the upcoming argument on Dec. 5 in the Masterpiece Cakeshop case, the Supreme Court is already poised to provide some much-needed clarity to its free exercise jurisprudence—and particularly the proper understanding of the religious-liberty test established more than 20 years ago in Employment Division, Department of Human Resources of Oregon v. Smith. With Masterpiece Cakeshop already presenting a free exercise claim, the court logically limited the appeal in NIFLA to the free speech claim.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
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