Supreme Court will weigh challenge by “crisis pregnancy centers”Embed from Getty Images
The U.S. Supreme Court has agreed to hear a case this term that could determine whether religious groups can invoke freedom of speech to upend a woman’s reproductive rights.
The case, National Institute of Family and Life Advocates v. Becerra, was brought to the court by a group of “crisis pregnancy centers” (CPCs), pregnancy centers run by religious, anti-abortion nonprofits that attempt to dissuade women from seeking abortions. The CPCs have long challenged California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, passed in 2015, which requires licensed facilities to provide notices informing patients that immediate free or low-cost family planning services — including abortion — are available through public programs, and to provide the telephone number of the state agency that would help them access these services. For unlicensed centers, the Reproductive FACT Act states that they must “disseminate a notice to all clients … stating, among other things, that the facility is not licensed as a medical facility by the State of California.”
The National Institute of Family and Life Advocates (NIFLA), composed of both licensed and unlicensed CPCs, argues that the law violates their First Amendment free speech rights by forcing centers to display messaging directly opposed to their moral beliefs. A federal district court has already rejected their arguments, with the U.S. Court of Appeals for the 9th Circuit affirming, but the Supreme Court has been historically sympathetic to First Amendment cases, and this case may well determine whether the First Amendment can be used to protect medical misinformation and, as consequence, affect a woman’s right to make informed reproductive health care decisions.
Though the Supreme Court dismissed the argument that the Reproductive FACT Act violates clinics’ religious rights, the high court did agree to hear the challenge based on free speech, and the decision will likely be drawn along ideological lines.
The plaintiffs claim that requirements for such notices effectively muzzle their ability to promote services based on their values, compelling them to “speak” in favor of an ideology to which they object on religious grounds. Michael Farris, president of the Alliance Defending Freedom, which is representing NIFLA, said the debate is whether “California can put its thumb on one side” of the scale and require faith-based centers “to promote a pro-abortion message.” But California Attorney General Xavier Becerra, the named defendant in this case, will likely argue that the regulation of medical providers to protect patients is under the jurisdiction of the state. “Information is power, and all women should have access to the information they need when making personal health care decisions,” he says.
The Reproductive FACT Act was passed after the California legislature found approximately 200 CPCs in the state that used “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” Indeed, these varied tactics have been well documented, from deceptive rebranding to positioning centers near abortion clinics, and, in one instance, claiming a woman’s IUD was “her baby” on an ultrasound. Even then, despite arguably fraudulent behavior on the part of these CPCs — which can have long-term consequences for a woman’s reproductive health — California has been rather accommodating to their model.
Reproductive health providers do have freedom of speech, says Amy Myrick, a staff attorney for the Center for Reproductive Rights’ Judicial Strategy team. But “it’s a huge stretch to call putting up a sign ideological speech. It’s a straightforward measure.” When the argument was heard in the appeals court, Judge Dorothy W. Nelson, part of the three-judge panel that unanimously upheld the law, ruled on the same grounds: “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.” In fact, the language of the law expresses its aim to raise awareness for free or low-cost access to comprehensive family planning services as a whole, not just abortion care. These services also include FDA-approved methods of contraception and prenatal care. The law does not, as right-wing media have reported, force CPCs to “to provide information on how to get a state-subsidized abortion.”
What’s more, the law allows disclosure in one of three ways: a notice no smaller than 8.5 inches by 11 inches (the size of A4 printer paper), in no less than 22-point type, and posted in a conspicuous place; a printed notice distributed to clients in no less than 14-point type; or a digital notice distributed to clients upon arrival or check-in, in the same point type as other digital disclosures. The law does not restrict facilities to present this notice any single way, further weakening the argument for compelled speech.
Nor does the law violate the free speech rights of doctors, Myrick says, as was the case with North Carolina’s mandatory ultrasound law, which ended up before the Supreme Court in 2015. That case argued the constitutionality of a law that required a physician or qualified technician to perform ultrasounds on patients seeking abortions. The law also mandated them to “display and describe” the ultrasound with or without the patient’s consent. It was later blocked in a U.S. Court of Appeals for the 4th Circuit, and the Supreme Court upheld that ruling on the grounds that it mandated the state’s anti-abortion messaging, thereby violating the free speech rights of North Carolina doctors. But the signs in California’s disclosure law, Myrick adds, “don’t have anything to do with the doctor and the patient.”
The state does not require CPCs to reveal their pro-life stance, and despite some CPCs representing themselves as full-spectrum reproductive health providers, the state has not interfered, even when CPCs have purposely disseminated false medical information. The Reproductive FACT Act is meant only to serve as a check against these centers denying information, providing misleading guidance, or outright lying to patients about their family planning options. “The principle here is simple: Nobody’s ideology should ever be allowed to get between a woman and her doctor,” said Amy Everitt, NARAL Pro-Choice California state director.
The stakes in this case are high. Should the court rule in favor of NIFLA, it would embolden anti-abortion advocates to invoke the First Amendment to prohibit or limit women’s access to abortion by other means. Pro-life advocates in the Senate have already successfully inserted anti-abortion language into the GOP tax bill. “If the court says that mandatory disclosure is compelled speech, it’ll open the floodgates, and it’s hard to know where those arguments would stop,” says Myrick. The fear that the justices’ ideologies will determine the case’s outcome is justified, but either way, this case could set the precedent for how courts view — and value — reproductive rights for generations to come. Says NARAL Pro-Choice America President Ilyse Hogue, “This case is an early test of whether the Supreme Court can guarantee our rights in the Trump era.”
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