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 rationalization “1B. 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.