Justice Thomas with majority opinion, Justice Breyer in dissent. (Art Lien, via SCOTUSblog)

This morning the Supreme Court ruled in favor of crisis pregnancy centers – nonprofit groups that oppose abortion – in their challenge to a California law that was passed out of concern that the centers were holding themselves out as full-service reproductive health clinics and providing pregnant women with inaccurate or incomplete information about their options. Two lower federal courts had rejected the centers’ request to step in and block the state from enforcing the law, but today the Supreme Court reversed. By a vote of 5-4, the justices ruled that the centers were likely to prevail on their argument that the law, which requires the centers to make specific disclosures to their patients or in their advertisements, violates the First Amendment.

The case was a challenge to California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act – also known as the Reproductive FACT Act. The law, passed in 2015, imposes two different sets of requirements on the centers, depending on whether they are licensed to provide medical services. The centers that have licenses must post notices that inform their patients that they may obtain free or low-cost abortions and that include the number of the state agency that can connect the women with abortion providers. The centers that are not licensed must include disclaimers in their advertisements – in up to 13 languages – to make clear that their services do not include medical help.

The centers argued that both requirements violate the First Amendment. First, they alleged, requiring licensed centers to post notices about the availability of free or low-cost abortions conflicts with the anti-abortion message that they would like to convey. They also argued that the law singles out anti-abortion groups to publicize the availability of abortions. Second, the centers asserted, requiring unlicensed centers to include extensive disclosures in their advertisements makes it almost impossible for the centers to spread their own anti-abortion messages.

Shortly after California governor Jerry Brown signed the law, the centers in this case went to court, asking a federal judge in San Diego to put the law on hold while they litigated their First Amendment challenge. The district court declined to do so, and the U.S. Court of Appeals for the 9th Circuit affirmed that ruling, holding that the centers had not shown that they were likely to succeed on the merits of their challenge – a key factor in getting temporary relief. The Supreme Court agreed to review that ruling last fall, and today the justices reversed.

In an opinion by Justice Clarence Thomas, the majority began with the notice required for licensed centers. That notice, the majority concluded, is “content based” – that is, it “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.

Laws that regulate speech based on their content, Thomas explained, are normally subject to the most stringent standard of review, known as “strict scrutiny.” But even if the notice requirement for licensed clinics were subject to a less exacting standard of review, the law still does not pass muster, Thomas continued. First, the law is “wildly underinclusive,” because it does not apply to most of the community clinics in the state, nor does it apply to federal clinics or clinics that provide a full range of family-planning services. Second, there are other ways for the state to notify women about the availability of state-subsidized abortions without requiring the clinics to do so for it – for example, conducting an advertising campaign or posting notices on public property near the licensed centers.

Thomas and the majority reached a similar conclusion for the 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.”

Concluding that both the licensed and unlicensed pregnancy centers “are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment,” the majority reversed the 9th Circuit’s ruling in favor of the state and sent the case back to the lower courts for new proceedings in light of today’s ruling.

Justice Anthony Kennedy joined Thomas’ opinion for the majority, but he also filed a concurring opinion that was joined by Chief Justice John Roberts, Samuel Alito and Neil Gorsuch (all of whom also joined the Thomas opinion). Kennedy warned that the FACT Act “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.”

And Kennedy strongly rebuked what he described as the California legislature’s “congratulatory statement” that the FACT Act “was part of California’s legacy of ‘forward thinking.’” It “is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.”

Rather, Kennedy stressed, 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 regimes are 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 generations to come.”

Justice Stephen Breyer dissented from today’s ruling, in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. In his view, both the licensed and unlicensed notice requirements would be likely to pass constitutional muster. Addressing the notice requirements for licensed centers, Breyer returned to a theme that he had pressed repeatedly (but ultimately unsuccessfully) at the oral argument: If, as the Supreme Court has ruled, a state can require a doctor to notify a woman seeking an abortion about adoption as an alternative option, why can’t it require a pregnancy center to tell a woman about abortion? As Breyer put it at the oral argument, “what is sauce for the goose is normally sauce for the gander.”

Turning to the notice requirements for unlicensed centers, Breyer pushed back against the majority’s assertion that the state had only shown a “hypothetical” interest in imposing the requirement. Even putting aside the testimony that the California legislature heard about the problems that result when pregnant women don’t receive health care right away, Breyer deemed it “self-evident that patients might think they are receiving qualified medical care when they enter facilities” – like the unlicensed centers – “that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care.”

And although Breyer agreed that the notice requirement might in some circumstances create too much of a burden on unlicensed centers, he rejected the idea that such circumstances mean that the requirement is always unconstitutional. For example, although the notice requirement could obligate unlicensed centers to include disclosures in as many as 13 languages, only two languages – English and Spanish – would be required in “the vast majority of California’s 58 counties.”

Amy Howe is an independent contractor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States. She also writes for her eponymous blog, Howe on the Court where this article was first published. It is republished here from the SCOTUSblog under a Creative Commons licence

Amy Howe

Until recently, Amy served as the editor and a reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter...

5 replies on “California crisis pregnancy centres win abortion referral case”

  1. Whatever you may think about an individual’s rights, I think society does not have to endorse and assist in this one. Perhaps someone may shoot themselves regardless of others’ wishes, but no one should be compelled to pull the trigger for them. It may be all but impossible to stop someone from poisoning themselves, but we should not force anyone to sell the poison to them. Surely other people’s right not to kill ought to take precedence over a person’s right to die.

  2. I don’t like this at all. I think we’re starting to witness the beginning of a ‘cascade’ effect amongst pro-euthanasia deathmongering, given what Portugal has also just decided. And apparently Spain is also contemplating the same measure. It is definitely spreading within Europe. The question is, why? Clearly, the pro-euthanasia movement has become more sophisticated and more effective. Is it because medical consensus has broken down in terms of end of life care, because of disability discrimination and neoliberal attacks on public health and comprehensive welfare support?

  3. It follows that any national law against voluntary slavery offends similarly against the newly invented imperative of personal “autonomy”. Whatever happened to the historic justifications for the recognition of “inalienable” fundamental human rights, established by the UNHCR 1947-48 after so very much misery, anguish and tragedy? What reasons were considered for this abolition of “inalienable”, one of the three sine non qua foundations, with ‘universal’ and ‘indivisible’?

  4. This is the same court that has twice (1975 & 1993) held that the unborn child has a constitutional right to life throughout pregnancy. That is, until now it was the most pro-life court in the developed world.

    As I wrote recently in the U.S. National Review: The open option of death means that a person’s existence, his or her very being, must for the first time be felt justified. As long as there are any costs to living (and there always are, in terms of personal sufferings and impositions on others), the option to die leads one to ask whether remaining alive is worth those costs.

    Indeed, once the gates have been opened, once the option of death has been introduced, once the necessary taboo against killing is removed, not just a few but most or all of us may sometime be unable to justify our existence in human terms. Do we really think that no one could find a better use to which the costs of our upkeep could be put? Are we so important as to be provably indispensable? The world will probably get along pretty well without us. That is what happens, after all, when almost anyone dies.

    Moreover, we may not even be able to remember or imagine how society could once have thought voluntary suicide to be wrong. That is, once we have decided that only justified lives should be lived, we can search high and low for what people used to think was so valuable about each and every human life and we will not find it (for it was never needed). Our ethicists will explain that “formerly all the world was mad,” and blink.

    The reason for our future frustration is simply that principles are beginnings. Ends in themselves function to give meaning and structure to our life together; they cannot be fully reconstituted as mere means. If someone refuses to do kind acts unless they can be shown useful, he will never fully learn kindness. Those who refuse understanding except when it empowers them will know the world only as a resource, not as something with its own character and beauty. Principles and axioms can be neither instrumentalized nor deduced. (Or, if they can, then they lose their status as principles or axioms.) If every principle must be justified in such a way, reason itself is undone.

    Just so: Our judgments of usefulness begin with the givenness of the members of our community. The inviolability of each human person functions as the principle or starting point in deciding, in solidarity, what is useful (and just) for the human community. If persons are to go on existing only when thought to be useful, we have lost the very measure of usefulness.

  5. Life. individual and collective, is always in a precarious balance. It is easy to tip into “well, I might as well give up”. Most people have heard someone talk of suicide and responded with, “No don’t do that. Your grandson is coming to visit you all the way from Sydney.” Sure enough, the old man smiles and responds with. “Well if that’s the case I better spruce up. Here help me dress” He lives another full year, instructing his children and grandchildren with well- honed wisdom.

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