Supreme Court justices seemed wary Tuesday of a California law that imposes disclosure requirements on anti-abortion crisis pregnancy centers and questioned whether the law deliberately targeted the faith-based clinics.
The justices weighed whether California’s Reproductive FACT Act, which requires licensed and unlicensed medical facilities to provide specific disclosures to patients, violates the free speech rights of anti-abortion crisis pregnancy centers in a case that sits at an intersection of the First Amendment and abortion.
Several of the justices questioned Joshua Klein, who argued the case on behalf of California, on the type of advertisement from an unlicensed clinic that would trigger the law’s disclosure requirement.
Under the Reproductive FACT Act, unlicensed medical facilities must 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 law requires the notice to be in large font and in up to 13 languages.
Justice Anthony Kennedy, who has served as the swing vote in previous abortion cases, floated the possibility of a billboard from an unlicensed clinic that solely read, “Choose Life,” and asked Michael Farris, who argued on behalf of the faith-based crisis pregnancy centers, whether a disclosure would be needed.
Farris said he believed that under the California law, the center would be required to include the disclosure on a billboard.
“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 replied.
Justice Sonia Sotomayor also raised an example of an advertisement from an unlicensed facility that solely bore the words “Pro-Life” in an effort to determine whether the law requires a disclosure in that instance.
Under the Reproductive FACT Act, Klein said a notice would be warranted if it met the criteria specified under the law.
“That seems to be more burdensome and wrong because it’s not tied to an advertisement that is promoting medical services,” Sotomayor said.
Kennedy seemed bothered by the notion that the state could require the centers to change the content of their message.
“You are saying on this billboard, the state can require that the message be — the content of the message be altered, even though they are not providing medical services,” he said.
The justices also seemed worried the law was crafted to target anti-abortion nonprofits.
“If it has been gerrymandered, that’s a serious issue,” Justice Elena Kagan said.
Justice Samuel Alito echoed those concerns and criticized the exemptions the law provides.
“When you put all this together, you get a very suspicious pattern,” he said.
Tuesday’s case centers around the Reproductive FACT Act, signed by Democratic Gov. Jerry Brown in 2015.
The law requires licensed medical facilities 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].”
Clinics can notify patients of the disclosure by including it with digital notices during check-in, by posting it in the waiting room, or by distributing it via printed notice.
Unlicensed clinics have to notify clients they are not a licensed with a disclaimer posted at their entrance and in any digital or print advertisement.
Facilities that violate the law face a $500 fine for the first offense and $1,000 for subsequent offenses.
The National Institute of Family and Life Advocates, which oversees 130 anti-abortion crisis pregnancy centers, sued the state over the Reproductive FACT Act days after it was signed into law, arguing it violated their free speech rights. The organization also claimed the disclosure requirements discriminate based on viewpoint, as other groups don’t have to adhere to the rules.
But the state argued the Reproductive FACT Act was necessary to educate women about the publicly funded services available to them if they became pregnant. The state also maintained the law was needed to correct misinformation.
A federal district court in California denied NIFLA’s request for a preliminary injunction to halt the law, and the decision was affirmed by the 9th U.S. Circuit Court of Appeals.
NIFLA argued in its brief filed with the court that California had many other ways to educate women, particularly those who are low-income, of the taxpayer-funded services available to them.
Justice Neil Gorsuch echoed that point Tuesday and questioned why shouldn’t “this court take cognizance of the state’s other available means to provide messages?”
“If it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” the newest member of the court asked.
Though the justices seemed skeptical of the law, the liberal wing of the bench drew comparisons between informed consent and California’s disclosure requirements.
In law, what is “sauce for the goose is sauce for the gander,” Justice Stephen Breyer said, before stressing there are anti-abortion states and states that advocate for abortion rights.
“If a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?” Breyer asked.
An opinion from the high court is expected by the end of June.
