Abortion Disclosure Law Appears to Lack Supreme Court Support

by | March 21, 2018

By David G. Savage

The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers _ including those that are faith-based _ to notify women that the state offers subsidies for abortion.

The state Legislature adopted the disclosure rule three years ago based on concerns that more than 200 "crisis pregnancy centers" sometimes used "deceptive advertising and counseling practices that often confuse (or) misinform" pregnant women about their options.

Under the law, the nonprofit centers must post a prominent notice if they have "no licensed medical provider" available. Centers that are licensed must go further and notify clients that the state offers "free or low-cost" contraception, prenatal care and abortion.

The state's lawyers defended the law on the grounds that warnings and disclosures are routine for hospitals, doctors and prescription drugs. They noted that the Supreme Court in the past has upheld the principle of "informed consent," including in abortion cases.

But during Tuesday's argument, most of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law.

"If it has been gerrymandered, that's a serious issue," said Justice Elena Kagan. Agreeing, Justice Samuel A. Alito Jr. said the law "has a lot of crazy exceptions. ... What you're left with is a very strange pattern, and, gee, it turns out just about the only clinics that are covered by this are pro-life clinics."

Others said it violated the First Amendment by requiring these private clinics put out the state's message. Justice Anthony M. Kennedy described the required notice as "mandating speech" that "alters the content of the message."

Justice Neil M. Gorsuch agreed the state would want people to have "full information about their options," but why put the burden on these centers? The state has "other means to provide messages. ... It's pretty unusual to force a private speaker to do that for you under the First Amendment," he said.

Still others voiced concern over the advertising burden put on small, nonprofit centers. Michael P. Farris, a lawyer for the centers, said advertisements, including billboards, would have to include disclosures in large print and in 13 languages.

Justice Ruth Bader Ginsburg told the state's lawyer she found that troubling. "If you have to say that, those two sentences in 13 different languages, it can be very burdensome," she said.

"What would happen if an unlicensed center just had a billboard that said, 'Choose Life.' Would they have to make the disclosure?" Kennedy asked.

"Yes, your honor," Farris replied.

"It would be 29 words, in the same size font as 'Choose Life'?" Kennedy continued.

Yes, Farris said, "and in the number of languages required by that county."

Kennedy said he had heard all he needed to hear. "It seems to me that means that this is an undue burden. And that should suffice to invalidate the statute," he said.

Only Justice Stephen G. Breyer spoke strongly in defense of the state law, and he did so based on a high court ruling from 1992. Then, the justices upheld a Pennsylvania law that required doctors who performed abortions to tell patients about agencies that helped with adoptions or with prenatal care.

Breyer said the same principle calls for upholding the California requirement. "In law, what's sauce for the goose is sauce for the gander," he said. "If a pro-life state can tell a doctor you have to tell people about adoption, why can't a pro-choice state tell a doctor, a facility, what it is, you have to tell people about abortion?"

Farris was ready with an answer. He said the Pennsylvania law applied to doctors who were about to perform an abortion, a medical procedure. "Informed consent is triggered by a doctor proposing to perform a particular medical intervention," he said. By contrast, he said, the California disclosure law applies to centers that will only discuss pregnancy with clients.

Justice Sonia Sotomayor asked skeptical questions of Farris, but said she, too, was not convinced California could impose strict disclosure rules for advertisements by nonprofit clinics that do nothing but offer counseling to pregnant women.

"A pro-life unlicensed facility has an ad that says 'pro-life' and puts its name. Does it have to give the notice? Yes or no?"

"Yes, if it meets the other criteria," said Joshua Klein, a deputy solicitor general from San Francisco.

"That seems to me more burdensome and wrong," Sotomayor said, "because it's not tied to an advertisement that is promoting medical services."

By the hour's end, it appeared the justices would vote to strike down all or at least most of the law's mandatory disclosure provisions.

Tuesday's case marked the third time in recent months that the justices weighed a conservative group's claim that a liberal state law amounts to unconstitutional "compelled speech."

The National Institute for Family and Life Advocates represents 110 pregnancy centers in California that are strongly opposed to abortion. They sued, arguing the disclosure laws could turn them into "abortion referral services."

The 9th Circuit Court of Appeals upheld the law on the grounds that the disclosure was "professional speech" subject to regulation by the state.

But in their appeal to the Supreme Court, the anti-abortion centers described the disclosure law as "ideological speech" involving a "matter of fundamental public debate." They argued that the First Amendment forbids the government from telling private entities what they must say or disclose.

In response, lawyers for California argued that the government has broad authority to protect patients and to require they are fully informed of their options for care.

The required notice says: "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." The court will also consider a second provision that requires clinics that are unlicensed to inform patients that they have "no licensed medical professional" on staff. These notices must be posted in the clinic or printed and given to the clients.

Lawyers for the Arizona-based Alliance Defending Freedom represent the pregnancy centers. The same lawyers appeared before the court in December, urging the justices to rule for a Colorado baker who is asserting a free speech right against making a wedding cake for a same-sex couple.

The justices will issue a written opinion in the case, NIFLA v. Becerra, by the end of the term in late June.

(c)2018 Los Angeles Times