At oral arguments Tuesday for the case NIFLA v. Becerra, a majority of the U.S. Supreme Court seemed skeptical about the constitutionality of a California law that requires pro-life crisis pregnancy centers to advertise for “free or low-cost” government-funded abortions.
A key moment came when Justice Anthony Kennedy, frequently the swing vote on the court, asked how the disclosure requirement would affect a facility affected by the law that took out a two-word advertisement (“CHOOSE LIFE”). California deputy solicitor general Joshua Klein admitted that, yes, the ad would have to include the following disclosure in the same-sized font: “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 AT [PHONE NUMBER].”
Justice Kennedy suggested that the particular extent of the law is an “undue burden” on free speech. “It seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute,” Kennedy said. Under questioning from Justice Alito, Klein admitted that such a billboard in Los Angeles County would be required to make the disclosure in 13 different languages. Even Justice Sotomayor—who along with other liberals on the Court seemed favorably disposed toward a letting pro-choice states force crisis pregnancy centers to make disclosures about abortion—suggested the particular extent of the law was “more burdensome and wrong.”
The lawyer representing California also faced skeptical questioning about whether the disclosure requirement was unfairly “gerrymandered” to target crisis-pregnancy centers while granting exemptions to almost everyone else.
But could such a disclosure requirement, written in a different way, pass muster with the court? That wasn’t immediately apparent. Justice Breyer strongly pushed the argument that what’s sauce for the goose is sauce for the gander—there should be a consistent rule about whether pro-life states can force pro-choice counselors to make disclosures about adoption and whether pro-choice states can force pro-life counselors to make disclosures about abortion.
In Planned Parenthood v. Casey, a 1992 Supreme Court case that upheld Roe v. Wade, a majority held that Pennsylvania’s “informed consent” law, “describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies that provide adoption and other services as alternatives to abortion,” was constitutional.
Lawyer Michael Farris, the counsel representing a national network of crisis pregnancy centers in Tuesday’s case, drew a distinction between such an “informed consent” law and California’s law because the informed consent laws apply only prior to a medical procedure and not generally to pro-choice counselors. “This Court,” Farris added, “indicated that the state has an additional interest beyond the health of the woman in the interest of advancing the life of the unborn child, to a degree.” But Farris said it would be unconstitutional to force a Planned Parenthood facility that counseled about abortion, but did not perform abortions, to make anti-abortion advertisements.
