The Supreme Court’s abortion cases frequently offer more of a window into the individual justices’ values, with Democratic justices favoring abortion rights, most Republican justices favoring the opposite, and Justice Anthony Kennedy clinging to a compromise that gives lawmakers fairly broad discretion to discourage abortion provided that they do not attempt to ban it outright. National Institute of Family and Life Advocates (NIFLA) v. Becerra, is a different kind of abortion case — one that forces the Court to untangle a difficult First Amendment web woven by its own decisions.
The Court hears oral arguments in NIFLA this week.
NIFLA involves “crisis pregnancy centers,” anti-abortion groups that often lure women seeking abortions by masquerading as reproductive health clinics when their true goal is to encourage those women to carry their pregnancy to term. As the California legislature explained in a law intended to keep these centers from deceiving pregnant people, “CPCs ‘pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions’ in order to fulfill their goal of ‘interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.’”
Various anti-abortion groups, one of which represents over a hundred such crisis pregnancy centers in California, have challenged this law. By requiring crisis pregnancy centers and similar establishments to provide certain disclosures to patients, the anti-abortion groups claim, the California law violates the First Amendment.
This is a bit of a role reversal for advocates on either side of the abortion debate. In its landmark Planned Parenthood v. Casey decision, the Court upheld several abortion restrictions, including an “informed consent” provision requiring abortion providers to give women information that may discourage them from having an abortion. “The physician’s First Amendment rights not to speak are implicated” by this law, the plurality opinion in Casey explained, “but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”
The Court found “no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.”
In large part due to this line in Casey, state lawmakers are quite aggressive in finding new ways to force abortion providers to convey anti-abortion messages.
The Utah Senate just passed legislation requiring pregnant women to watch an anti-abortion video, and making it a crime for a provider to fail to show it. Vote: 21-5. Only 5 dems just aren’t enough to 🛑 the interference w/women’s rights. Passed House, en route to Gov.
— Dr. Kathie Allen (@kathieallenmd) March 7, 2018
Meanwhile, lower courts diverge on just how much leeway states have to require abortion providers to deliver messages they would prefer not to convey. But typically, abortion providers are the ones claiming a First Amendment right not to speak. NIFLA is unusual because it places anti-abortion groups in that position, while the liberal state of California cites Casey to argue that its mandatory disclosure law is constitutional.
The California law contains two distinct sets of requirements. “Licensed covered facilities,” that is, facilities that are licensed by the state and that offer certain medical services, must provide its clients with a statement that “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,” as well as the phone number for a county office that can connect patients with these services.
Meanwhile, “unlicensed covered facilities,” facilities that are not licensed by the state and do not have a licensed medical provider, must notify clients that they are unlicensed and have “no licensed medical provider who provides or directly supervises the provision of services.”
Crisis pregnancy centers may regret bringing this case
The Trump administration, for its part, suggests an uncharacteristically sensible way to resolve this case. Rather than attempting to draw out a legal rule from a few vague sentences in Casey, the Justice Department’s brief points to Zauderer v. Office of Disciplinary Counsel, a case involving mandatory disclosures by attorneys who advertise their services to the public.
Zauderer upheld an Ohio rule requiring certain lawyers to disclose whether their clients would have to pay court costs and similar expenses if they lost their case. A business owner, the Court reasoned, may be required to disclose “purely factual and uncontroversial information about the terms under which his services will be available.” So long as a state’s “disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers,” they will be upheld under Zauderer.
Under this rule, the disclosure requirements for unlicensed facilities are constitutional, and even the Trump administration admits as much. Unlicensed facilities are only required to “disclose an accurate, uncontroversial fact about their own services: that they are not provided by a state-licensed medical professional.”
The requirements for licensed facilities, on the other hand, present a more difficult case. On the one hand, it is uncontroversially true that California provides certain public reproductive health services to eligible women. On the other, requiring anti-abortion groups to specifically direct pregnant women to the state’s abortion services is a bit like requiring McDonald’s to provide its customers with directions to the nearest Burger King.
California is likely to have a difficult time arguing that the disclosure requirement for licensed facilities are sufficiently related to “the State’s interest in preventing deception of consumers,” especially when the Court’s conservative majority is very sympathetic to claims that the law cannot require religious conservatives to take actions that, in the views of those religious individuals, would make them complicit in a sin.
Yet, even if the Court does strike down the disclosure requirements for licensed facilities, that’s not necessary going to lead to a lasting victory for crisis pregnancy centers. Under Zauderer, California could replace its current law with a new one that simply requires licensed covered facilities to inform clients that “this facility does not provide contraception or abortion care” if they do not, in fact, provide these services.
Meanwhile, if the Court does hold that Zauderer controls speech by crisis pregnancy centers and speech by abortion providers, that could prove to be a major victory for Team Choice in the long run. It would mean that state “informed consent” laws targeting abortion clinics would only be able to force abortion providers to present “purely factual and uncontroversial information” to their patients. Laws requiring doctors to engage in anti-abortion advocacy would be unconstitutional.
NIFLA, however, is not without danger for supporters of reproductive freedom. In Casey, which Justice Kennedy co-authored, the Court said that “the State may enact rules and regulations designed to encourage [pregnant woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term.” All signs suggest that Kennedy still agrees with this statement, and that may lead him to believe that abortion providers can be dragooned into an effort to convince women of these “philosophic and social arguments,” even if crisis pregnancy centers cannot be required to advertise for abortion services.
The Court’s decision in NIFLA, in other words, could effectively write viewpoint discrimination into the First Amendment, announcing one rule for opponents of abortion, and another, less favorable rule for abortion providers.