Regarding National Institute for Life Advocates (NIFLA) v. Becerra

The Supreme Court ruled today that California could not require that pregnancy resource centers (PRCs) promote abortion services on their premises. The  law doing so, the 5-4 majority held, is forced speech. (A law couldn’t make the PRC’s bake cakes saying “YAY ABORTION!” either, presumably.)

The ruling in National Institute for Life Advocates (NIFLA) v. Becerra holds that by imposing the law, California created “an unduly burdensome disclosure requirement that will chill [PRCs’] protected speech.”

 California’s 2015 Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act mandated that any facility that provides care to pregnant women must post this notice:

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].

Fines for violating the law were $500 for the first offense after 30 days, and $1,000 for each subsequent offense.

 Justice Clarence Thomas, writing for majority, concluded that the requirement “alters the content” of the licensed centers’ speech by requiring them to notify pregnant women about the availability of low- or no-cost abortions even though the centers’ goal is to persuade women not to have abortions at all. This could be justified by a “compelling interest,” Thomas wrote, but he noted that there are other ways —an advertising campaign or posting notices on public property near the licensed centers—that would not force the centers to promote the very activity that they exist to stop.

Writes at Amy Howe at SCOTUSblog regarding the law’s application to unlicensed centers:

  First, the majority observed, the only justification that California has cited for the law was “purely hypothetical”: Although the legislature had emphasized the need for pregnant women in the state to “know when they are getting medical care from licensed professionals,” the state had not pointed to any evidence “suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals.” And even if the state had advanced a concrete justification for the notice requirement, Thomas continued, the requirement still places too much of a burden on the unlicensed centers’ speech. Thomas noted that, as the state had agreed at the oral argument in March, a billboard for an unlicensed center bearing the message “Choose Life” would also have to include a 29-word notice “in as many as 13 different languages.” “In this way,” Thomas suggested, “the unlicensed notice drowns out the facility’s own message,” making it unlikely that an unlicensed center would even try to have “such a billboard in the first place.”

Justice Kennedy also added a stirring concurring opinion, one of the better opinions he has written in his long tenure on the Court. The FACT Act, he said in part,  “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” Noting that California legislature described its handiwork as part of California’s legacy of “forward thinking,” (this is the Ethics Alarms rationalization1B. The Psychic Historian, or “I’m On The Right Side Of History”) he wrote in concluding,

But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regime sare in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

Bravo, Justice Kennedy! I feel a tune coming on…

In a strong dissent, Justice Breyer points out what he argues  is a contradiction between the Court approving  previous laws requiring abortion clinics to inform women about the risks of the abortion procedure, health risks, and the availability of support for childbirth and adoption as not violating the abortion clinic’s free speech rights. He writes,

The disclosure at issue here concerns speech related to abortion. It involves health, differing moral values, and differing points of view.Thus, rather than set forth broad, new, First Amendment principles, I believe that we should focus more directly upon precedent more closely related to the case at hand. This Court has more than once considered disclosure laws relating to reproductive health. Though those rules or holdings have changed over time, they should govern our disposition of this case.
I begin with Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). In that case the Court considered a city ordinance requiring a doctor to tell a woman contemplating an abortion about the “status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth[, and] . . . ‘the particular risks associated with her own pregnancy and the abortion technique to be employed.’” Id., at 442 (quoting Akron Codified Ordinances §1870.06(C) (1978)).

The ordinance further required a doctor to tell such a woman that “‘the unborn child is a human life from the moment of conception.’” Akron, supra, at 444 (quoting Akron Codified Ordinances §1870.06(B)(3)). The plaintiffs claimed that this ordinance violated  a woman’s constitutional right to obtain an abortion. And this Court agreed. The Court stated that laws providing for a woman’s “informed consent” to an abortion were normally valid, for they helped to protect a woman’s health. Akron, 462 U. S., at 443–444. Still, the Court held that the law at issue went “beyond permissible limits”because “much of the information required [was] designed not to inform the woman’s consent but rather to persuade her to withhold it altogether.” Id., at 444. In the Court’s view, the city had placed unreasonable “‘obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.’” Id., at 445 (quoting Whalen v. Roe, 429 U. S. 589, 604, n. 33.

Several years later, in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986),the Court considered a Pennsylvania statute that “prescribe[d] in detail the method for securing ‘informed consent’” to an abortion. Id., at 760. The statute required the doctor to tell the patient about health risks associated with abortion, possibly available benefits for prenatal care,childbirth, and neonatal care, and agencies offering alternatives to abortion. Id., at 760–761. In particular it required the doctor to give the patient printed materials that, among other things, said:

‘“There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.”’” Id., at 761 (quoting 18 Pa. Cons. Stat.§3208(a)(1) (1982)).

The Court, as in Akron, held that the statute’s information requirements violated the Constitution. They were designed “‘not to inform the woman’s consent but rather to persuade her to withhold it altogether.’” Thorn-burgh, supra, at 762 (quoting Akron, supra, at 444). In the Court’s view, insistence on telling the patient about the availability of “medical assistance benefits” if she decided against an abortion was a “poorly disguised elemen[t] of discouragement for the abortion decision,” and the law was the “antithesis of informed consent.” Thorn-burgh, supra, at 763–764.

…These cases…are no longer good law.

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court again considered a state law that required doctors to provide information to a woman deciding whether to proceed with an abortion. That law required the doctor to tell the woman about the nature of the abortion procedure, the health risks of abortion and of childbirth, the “‘probable gestational age of the unborn child,’” and the availability of printed materials describing the fetus, medical assistance for childbirth, potential child support, and the agencies that would provide adoption services (or other alternatives to abortion). Id., at 881 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.) (quoting 18 Pa. Cons. Stat. §3205 (1990)).

This time a joint opinion of the Court, in judging whether the State could impose these informational requirements, asked whether doing so imposed an “undue burden” upon women seeking an abortion. Casey, 505 U. S., at 882–883. It held that it did not. Ibid. Hence the statute was constitutional. Id., at 874. The joint opinion stated that the statutory requirements amounted to “reasonable measure[s] to ensure an informed choice, one which might cause the woman to choose childbirth over abortion.” Id., at 883. And, it “overruled” portions of the two cases, Akron and Thornburgh, that might indicate the contrary. Id., at 882.

Breyer is right, and it’s a Supreme Court gotcha:  the conservatives, including Kennedy, are talking out of both sides of their mouths. True, there is a distinction because forcing the anti-abortion clinics to advertise abortion, which they believe is morally wrong, and compelling abortion clinics to point out the risks of abortion and the availability of resources for birth and adoption at an abortion clinic are theoretically different, since theoretically abortion advocates do not oppose adoption or the choice to bear a child to term. In reality, however, many abortion advocates are hostile to efforts to persuade women not to abort. Either forced notice is compelled political speech, if the other is. The decision today required the Court to over-rule Southeastern Pa. v. Casey, 505 U. S. 833 (1992) and return to its previous standards, but it didn’t.

The opinions are here.

35 Comments

Filed under Childhood and children, Gender and Sex, Government & Politics, Health and Medicine, Law & Law Enforcement, Rights

35 responses to “Regarding National Institute for Life Advocates (NIFLA) v. Becerra

  1. Chris Marschner_

    Jack, theoretically, informed consent could be required prior to copulation because it too may impact a women’s health. I know that’s nonsense but when does informed consent requirements begin? I was under the impression that informed consent is needed when the individual is asking a medical professional to perform a procedure and not to give the patient every known option. I do not see that the conservative justices speaking out of two sides of their mouths when a abortion provider is compelled to explain the procedures health risks in general as well as for that patient and the other options and not requiring an anti abortion group from not even suggesting abortion. The former will be performing an invasive procedure that could impact the woman’s health should complications arise. Conversely, the latter is actually doing nothing that could result in complications from a non existent procedure. That is not to say that complications from a pregnancy could arise in the course of carrying the child to term. If a woman asks about how to get an abortion at a pro-life clinic they should give the information on request but not be compelled to undermine their primary mission. Policy makers and Planned Parenthood cannot publically argue that abortion should be safe legal and rare if they mandate information on how to get a free or low cost abortion . If anyone can show me a woman that is not aware abortion is a legal option I would be floored. This isn’t Macy’s telling shoppers they can find what they want at Gimballs.

    • I too had gathered there was a material difference in the services provided that make all the world of difference and why the two “speeches” were not analogous to claims of compulsion.

      • Rich in CT

        I believe Roe v. Wade acknowledged the the state has a legitimate interest in protecting the unborn child, an interest that must be balanced against the women’s right to privacy. Compelling a doctor to discuss alternatives to a permanently destructive procedure is far more in line with the state’s defined interest than compelling advocates than the reverse. The former provides information that may prolong a doctor’s visit. The latter compels those who believe abortion is murder to advertise free murder services.

  2. adimagejim

    It is unclear to me if NIFLA is publicly funded. If they are not, I see the majority opinion as correct. If it receives public funds, I see the minority opinion as correct.

    Separately, the Constitution is clear; no one shall be deprived of life, liberty or property without due process. If abortion is legal, as it is as of now, then abortion courts are required to satisfy the Constitution to provide due process to the unborn humans facing capital punishment. The current simple right to choose via privacy is very likely unconstitutional.

    Applying the same standard, it is clear capital punishment should be legal in all states as courts provide adults with due process.

  3. Unborn babies that are facing being killed by their own mothers (and in many cases fathers) aren’t facing “capital punishment”. There is no punishment where there is no crime. The unborn babies who are the targets of their parents are guilty of nothing.

    • Chris Marschner_

      Michael, I am unaware of a father compelling a woman to abort a pregnancy. It may happen as a result of a threat to leave the woman but she has the ability to command child support in the courts. Fathers only choice to absolutely be childless is to keep it in their pants.

    • adimagejim

      Correct. They are, however, facing the same result sanctioned by a government with a Constitution which is supposed to be protecting them.

      Our abortion laws are sanctioning murder, which actually is a capital crime, without consequence and sometimes with subsidy.

  4. I enjoy SCOTUS ruling season at Ethics Alarms.

  5. “The law doing so, the 5-4 majority held, is forced speech. (A law couldn’t make the PRC’s bake cakes saying “YAY ABORTION!” either, presumably.)”

    I see what you did there.

  6. Isaac

    I don’t know all of the legal ins and outs, but the difference between mandatory warnings about abortion risks and mandatory promotion of abortion clinics by abortion-alternative centers is pretty obvious.

    One group is trying to sell a medical procedure (that carries many risks and also technically involves killing a person) and the other group exists solely to dissuade potential customers from buying said procedure.

    There seems to be plenty of precedent for warning people about the pros and cons of surgical procedures. And abortion, in addition to any physical risks, also carries the risk of depression and emotional scarring. It is often also performed due to bullying and pressure from a relative or boyfriend, for their own selfish reasons.

    Alcohol and cigarettes are plastered with warnings. Should an anti-smoking group also be required to post the phone number of the nearest smoke shop, you know, so that people can make informed choices about whether to smoke or not?

    I’m not surprised the law was shot down (its proponents said all sorts of self-incriminating things more or leas admitting that they just wanted to shutter pro-life centers anyway, there was zero good faith in their arguments.) I’m a little surprised it was only 5-4.

  7. Glenn Logan

    Breyer is right, and it’s a Supreme Court gotcha: the conservatives, including Kennedy, are talking out of both sides of their mouths.

    I hate to agree with this, but I do. First off, my biases: I am opposed to abortion except in cases where the mother’s life is at stake, but my position is not the position of the country, and I accept that. You can’t have everything you want. This is so you know the perspective I’m writing from.

    These cases are at the intersection of speech and abortion rights. At the outset, my thinking would be that any enumerated constitutional right should be given precedence against a right discovered in the “penumbras,” to use former Justice Harry Blackmun’s construction.

    Having said that, neither the instant case nor the precedents mentioned by Breyer really implicate the actual right to abortion. Forcing clinics to tell patients about the availability of non-abortive alternatives, or forcing pregnancy resource centers to tell them about abortions are both compelled speech, but neither affect a person’s right to have an abortion procedure, or not.

    It seems to me the questions here are a) are both political speech, and b) does the nature of the speech really matter? In the cases Breyer discusses, the forced speakers are ostensibly politically neutral medical providers who simply supply a legal service. We’d all like to think that those providers would be perfectly happy if a patient of theirs decided to have her child rather than abort it.

    I know I’d like to believe that, but suppose this theoretical clinic employed people who were global warming alarmists who thought that reducing the birth rate was a good idea by any legal means in order to preserve the planet. As much as I hate to admit it, this is a political position that, while probably not common, is certainly not out of the mainstream of 2018 progressive thinking.

    Back when those cases Breyer mentioned were decided, I doubt that my hypothetical above was true, but I feel certain it is now. So Breyer’s point is persuasive in the sense that the court is now taking a position in opposition to previous rulings. Where he is unpersuasive is in the idea that those earlier rulings force the court to continue down this path.

    The second question is whether or not the nature of the speech really matters, and I am coming to the conclusion that even if it does, should we be compelling speech about a subject that is so politically fraught, even if the speech itself is delivered by politically neutral physicians? I think the default should be not to compel the speech, and I question the position that the government interests are compelling enough to overcome that.

    There was a much better case for the precedents being politically neutral at the time they were decided than the instant case, but time has changed that. Despite this, I think it would be wrong of the court to use precedents that have become problematic with time to continue to compel what has now become political speech, as Breyer would seem to suggest it should. The right thing to do would be to overrule the earlier precedents on the basis that they too should be considered compelled political speech in this day and age, and bring them into line with this decision. To me, this decision clarifies a previously muddy regime, and should be used to correct prior inconsistencies.

  8. Rip

    Ah the topic that, I avoid normally, as my stance on abortion is theologicaly based, and thus a matter of faith. It is based on the catholic belief that the soul enters at conception. It is a faith based belief, so only those that share similarly held believes are morally held by it. But to force someone of faith to speak and offer services on this one which can be supported theologically is an infringement of both their speech, and religion. Some other hot button issues of women’s rights and gay rights,etc, do not connect directly to this core belief and are still aurgued, so it gets stickier! As their are faith based argument against those shaky doctrines. Why the slavery defenses in bible are no longer used as they were never really a core belief but something used at the time. The soul is pretty core. I normally do not discuss this as faith is personal, which is why it shouldn’t be legislated other then to protect it while not infringing on someone else’s rights.- catholic, gay,aspie, Republican, ( though not a fan of the current administration, particularly because they are incapable of understanding these nuances)

  9. Michael R.

    Now, I do not truly know what kind of services these centers in California offer, but I do deal with a ‘Crisis Pregnancy Center’ from time to time. Pregnant women do not go to this center because they wonder if they want an abortion. A crisis pregnancy is when the woman is being pressured to have an abortion. They come to the service because they have been thrown out of their house by their boyfriend or family for refusing to have an abortion. The crisis pregnancy center helps them find housing, provides them with food, clothing, diapers, etc. I am involved with a group that provides food, clothing, and other resources to those in need. The crisis pregnancy center brings women to our organization because they are overwhelmed by the number of women in this situation. It is suggested in most articles about these centers that you should have medical training before being allowed to give clothing and diapers to a pregnant woman, but that just seems silly. To require these centers to push abortion on these women who have been thrown out on the street for refusing to kill their baby just seems cruel and reinforces the idea that abortion is not a choice, it is a requirement. To suggest that requiring physicians to outline all pregnancy options to a pregnant woman is somehow similar to requiring an organization that helps women fleeing abortion to discuss abortion as an option seems dubious. Yes, both organizations discussed here are private, religious based organizations, and receive no tax support.
    I find such requirements similar to requiring a Catholic organization dedicated to helping the mentally ill, to allow physicians to come in to their facility and euthanize depressed people. I wish that was a theoretical example.

  10. I do not see where there is a double standard with the majority decision here. Many have taken a deeper dive into this than I have time for, but it seems to me a false dichotomy.

    Like saying violence perpetrated by the extreme right on the left is equal to the reverse.

    • Sue Dunim

      https://broadly.vice.com/en_us/article/nz88gx/a-state-by-state-list-of-the-lies-abortion-doctors-are-forced-to-tell-women

      ” Immediately afterwards, she’d tell them that neither of those statements had any actual basis in medical science. “What I would say was, ‘The state requires me to give you this information. We have excellent medical evidence to say that it’s actually not true, but I’m required to tell you this,'” she recalls.”

      • Nice biased article there, Sue. The ‘inaccurate information’ are simply facts that leftist abortionists find inconvenient despite the science.

        ‘Life begins at conception’ (duh)
        ‘A baby feels pain at 20 weeks’ (demonstrated many times)
        ‘referring to a fetus as an unborn child’ (fetus: an unborn offspring of a mammal)
        ‘Explicitly states that “abortion terminates the life of a whole, separate, unique, living human being.” (you are parsing for that one…)

        There is a whole lot made of any sort of waiting period… like we have to rush the decision or the future mom might reconsider.

        Partisan bullshit.

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