The U.S. Supreme Court sided with anti-abortion crisis pregnancy centers Tuesday, saying a California law that requires anti-abortion crisis pregnancy centers to provide patients with notices giving them information about state-provided abortion and family-planning services likely violates the First Amendment.
The court split 5-4 along ideological lines in the case, which sat at the intersection of free speech and abortion. Justice Clarence Thomas wrote the opinion, and was joined by Chief Justice John Roberts, Samuel Alito, Neil Gorsuch, and Anthony Kennedy.
In the opinion, Thomas wrote that the law violated free speech because it forced pregnancy centers, which exist for the purpose of dissuading abortion, to tell patients about the practice they are devoted to opposing. The law, he wrote, “alters the content” of the speech the centers are trying to advance.
He wrote that speech must be open to different ideas and positions, and that “the people lose when the government is the one deciding which ideas should prevail.” California had not “identified a persuasive reason” for the law, he wrote, saying that the state had other ways of informing women about the services they offer.
In a concurring opinion, Kennedy wrote the California legislators had targeted the centers because of their beliefs and that the law “compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”
Tuesday’s ruling from the Supreme Court could affect similar laws enacted in other states, including Hawaii and Illinois.
With the court’s decision, a ruling from the 9th U.S. Circuit Court of Appeals was reversed.
The Department of Justice and Republican leaders praised the decision.
“We are pleased that today’s decision protects Americans’ freedom of speech,” said Attorney General Jeff Sessions. “Speakers should not be forced by their government to promote a message with which they disagree, and pro-life pregnancy centers in California should not be forced to advertise abortion and undermine the very reason they exist.”
House Majority Leader Kevin McCarthy called the California law a “slap in the face to pro-life groups that care for vulnerable women and their children.”
The key question in the case was whether the Reproductive FACT Act, signed by California’s Democratic Gov. Jerry Brown in 2015, violated the free speech rights of anti-abortion crisis pregnancy centers.
Under the California law, licensed medical facilities are required to provide clients with a two-sentence notice stating, “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 [phone number].”
Unlicensed clinics are required to disclose both on site and in printed or digital ads that, “This facility is not licensed as a medical facility by the state of California and has no licensed medical provider who provides or directly supervises the provisions of services.”
The Reproductive FACT Act requires the disclosure to be in large font and listed in up to 13 languages.
Facilities that violate the law are subject to a $500 fine for the first offense and $1,000 fines for subsequent offenses.
The deciding justices said the state had provided only hypothetical arguments for why the disclosures were necessary and that they were overly burdensome. They pointed to the example of how a billboard saying “Choose Life” would instead point primarily to the notice rather than its own message.
The dissenting opinion said that in most cases across California the disclosure would be needed in only two languages, Spanish and English.
The challenge to the law was brought by the National Institute of Family and Life Advocates, which oversees 130 anti-abortion crisis pregnancy centers throughout the state. NIFLA sued California four days after the legislation was signed into law and argued it violated its free speech rights.
The group said the law’s disclosure requirements discriminated based on viewpoint, as the law appeared to be narrowly tailored to apply to only anti-abortion facilities.
The state, though, argued the Reproductive FACT Act is needed to educate women, particularly low-income women, about the publicly funded services available to them if they become pregnant. California lawmakers said the law corrected misinformation.
A federal district court in California rejected NIFLA’s request for a preliminary injunction to block the law, and the decision was affirmed by the 9th U.S. Circuit Court of Appeals.
Justices heard oral arguments in the case in March.
In their dissent, Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan wrote that the majority decision could put other laws meant to inform and protect consumers at risk.
Some reproductive rights groups speculated ahead of the ruling whether such an outcome would undo “informed consent” laws backed by anti-abortion groups in states. The laws require doctors to share information with women about the possible side effects of having an abortion, side effects that reproductive rights groups say are unproven, as well as the fact that adoption is another option for them.
The disclosure laws were previously upheld in the Supreme Court case Planned Parenthood v. Casey in 1992, and the dissenting justices pointed to that example as supportive of their position on the NIFLA case.
“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?” Beyer asked on behalf of the minority opinion.
But in the majority opinion, justices wrote that there was a difference between providing information for a medical procedure versus what is offered at the pregnancy centers. The centers focus on preparing women for childbirth through providing diapers, bottles, and other care for infants, and not on maternity care.
“The notice does not facilitate informed consent to a medical procedure,” the justices wrote. “In fact, it is not tied to a procedure at all.”
They note, instead, that places covering the medical procedures described in the notice do not need to post the same disclosures.
Breyer countered that carrying a pregnancy to term carries medical risks of its own and requires significant medical oversight, including testing for genetic disorders and the possibility of developing infections.
He argued that the disclosure gives women all the options about their pregnancies and also was lawful because it “includes information about resources available should a woman seek to continue her pregnancy or terminate it, and it expresses no official preference for one choice over the other.”
Organizations that support abortion rights said the Supreme Court decision highlighted the importance of voting into office people who support their cause. Planned Parenthood said the clinics are “fake” because they “are lying to women, withholding medical information, and creating barriers to healthcare.”
Emily’s List, which works to elect officials who support abortion rights, said the decision would harm women.
“The Supreme Court’s ruling will allow fake health clinics to continue peddling anti-choice propaganda and misinformation,” the group said. “It will let them lie to vulnerable women, pretend to offer licensed medical providers, and withhold potentially life-saving medical care.”
