Opponents of abortion will come to the Supreme Court on Tuesday to challenge a California law they say is an unconstitutional violation of their free speech rights in a case that could impact what states can and can’t direct abortion providers or opponents to tell women.
The law, passed in 2015, requires licensed pregnancy centers to inform their clients about the availability of state-subsidized family planning services – including abortion. California argues the law is a neutral regulation aimed at informing women of their health care options, but religiously affiliated pregnancy centers run by groups that oppose abortion access say it forces them to deliver a message that is both detrimental to their cause and in direct conflict with their mission to encourage childbirth.
As of Monday morning, a line had already formed outside the court to get into Tuesday’s arguments, including people with sleeping bags.
This is one of several First Amendment cases the justices are considering this term. The court has already heard challenges from a Colorado baker who refused to make a cake celebrating a same-sex marriage and a Minnesota man blocked from wearing a tea party shirt to his polling place.
How the court rules could also determine the fate of so-called “informed consent” laws, where states direct doctors to tell patients about potential ramifications of an abortion.
In addition, Tuesday’s arguments represent the first abortion-related case that conservative Justice Neil Gorsuch will hear since he came to the high court last year.
‘Reasonable licensing’ or government interference?
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act requires licensed clinics, which provide services like ultrasounds, to disseminate a notice stating that California has programs providing “immediate, free or low-cost access” to comprehensive family planning services.
The religiously affiliated centers lost their challenge to the law before a California-based federal appeals court.
The 9th US Circuit Court of Appeals said the state has a substantial interest in “ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion.”
It ruled the California law amounted to “reasonable licensing” by the state.
The clinics, represented by the conservative Alliance Defending Freedom, are now appealing the decision to the Supreme Court, arguing that the lower court used too lax a standard when reviewing the law. The Alliance Defending Freedom is the same group behind the Supreme Court challenge brought by the Colorado baker who refused to make a cake for the marriage of a same-sex couple.
Both cases concern arguments that the government is unlawfully compelling speech from private parties.
In Tuesday’s case, Michael P. Farris, the group’s attorney, will tell the justices that the government can’t force the clinics to deliver a message that goes against their core convictions. They say the law discriminates based on their anti-abortion viewpoint.
“The First Amendment protects an organization’s ability to advocate for viewpoints in accordance with its mission, free from government interference with that expression,” Farris argues in court papers.
The law also requires unlicensed clinics – those that provide resources such as vitamins and diapers but have no medical providers on site – to disseminate a notice that they are not licensed by the state. Violators are liable for a civil penalty of up to $500.
Central to Farris’ argument is the fact that the law exempts providers that enroll patients in state programs that provide abortion and contraception services.
“It targets speakers with a particular viewpoint and forces them to advance the State’s viewpoint-biased message,” Farris said, adding, “this the government cannot do.”
On the other side, California Attorney General Xavier Becerra argues that about 700,000 women in the state become pregnant each year and about half of the pregnancies are unintended. The law, Becerra argues, shouldn’t trigger heightened scrutiny from the courts because it doesn’t require anyone to refer a client for an abortion but simply ensures that women will have the information they need “at a critical moment.”
“The First Amendment does not bar states,” Becerra writes in court papers, from such a “carefully neutral” notice.
Supporters of the law – including groups such as the Center for Reproductive Rights, NARAL and Planned Parenthood – say it was necessary because some clinics tried to disguise the fact that they oppose abortion.
“The clinics were masquerading as full service reproductive health clinics and deceiving women into thinking they could get bona fide reproductive health care,” said Amy Myrick, a staff attorney at the Center for Reproductive Rights. “In fact, the clinics don’t make abortions and contraceptive coverage available.”
Myrick penned a friend of the court brief in support of the law that includes the testimony of women who had visited similar clinics across the country.
Cherisse Scott, for instance, declared that when she lived in Chicago she found an advertisement in the phone book for a clinic that said, “Need abortion? Call us.” Once she was there, Scott said, she was shown “graphic and inaccurate videos” about abortion for nearly three hours. After asking for an abortion she was finally told that the clinic did not provide them.
The Trump administration takes a middle ground in the case. Solicitor General Noel Francisco argues that the law, as applied to the licensed centers, violates the First Amendment and the state has “multiple alternative” ways to pursue its objectives – including advertising its services itself.
But he argues that the justices can uphold the provision aimed at unlicensed centers because they constitute a requirement to simply provide “accurate, uncontroversial” facts about their services.
Impact on ‘informed consent’ laws
How the court rules could impact other laws across the country. Supporters of abortion access say that if the court strikes down the California law, there could be a silver lining to the loss.
They believe such a ruling could negatively impact a different type of regulation, “informed consent laws.” They are opposed by supporters of abortion rights, who feel the laws are misleading and are meant to deliver information about potential dangers of the procedures in an effort to dissuade women from electing to go through with an abortion.
“Several states have laws on books that require providers to give women misleading or untruthful information about discredited links between breast cancer and abortion or mental health harms and abortion,” said Myrick. “If the Court strikes down the California law as a free speech violation those laws should clearly be found to be unconstitutional.”
The case is likely to be decided by July.