A California law that requires anti-abortion crisis pregnancy centers to provide women with information on abortion services was met with skepticism by U.S. Supreme Court justices during March 20 oral arguments.
A number of justices, including some considered more liberal-leaning, raised questions about whether the statute discriminates against crisis pregnancy centers and whether it violates free speech rights.
The case revolves around California’s 2016 Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act , which requires that pregnancy centers – many of which are anti-abortion – post notices about where patients can find free or low-cost abortion services. Another part of the law requires unlicensed pregnancy centers to disclose to women that they are not a licensed medical facility and have no medical professionals on staff.
The plaintiffs, led by the nonprofit National Institute of Family and Life Advocates ( NIFLA), argue that the law violates the First Amendment by requiring speech and because the measure unfairly targets centers that discourage abortions. California officials contend that the law was needed to address concerns that nonprofit organizations, often religious, were misrepresenting themselves as full-service reproductive health clinics and misleading women about their options.
During oral arguments , justices peppered Joshua Klein, California deputy solicitor general, with questions about the law’s intent and why it appeared to single out certain pregnancy centers. Associate Justice Samuel Alito Jr., who is considered to be among the high court’s conservative members, asked why the law did not apply to for-profit centers.
“If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics,” Justice Alito said during arguments. “Do you think it’s possible to infer intentional discrimination in that situation? Why does [the law] apply only for nonprofits and not for-profits? If the purpose is to get this information out to poor women, don’t you think there are examples of poor women who stumble into a for-profit facility?”
Mr. Klein responded that the law was designed to address scenarios in the state in which more transparency was needed.
“Your Honor, as a category, for-profit clinics do not seem to treat primarily women who need free and sliding-cost scale care in the same way,” Mr. Klein said. “Now I will say it’s always possible to imagine a new boundary for the law. But under intermediate scrutiny, a law does not need to be perfect and a legislature can concentrate its efforts at where the need for the law is most apparent.”
Associate Justice Elena Kagan, considered to be among the more liberal justices, raised a similar point when she expressed concern that the law had been “gerrymandered” to address some centers, but not others.
“There is a sense when you read this statute, Mr. Klein, there’s at least a question that arises as to whether this statute has been gerrymandered,” Justice Kagan said during arguments. “Because if it has been gerrymandered, that’s a serious issue. In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”
Meanwhile, Associate Justice Sonia Sotomayor appeared to give credence to the California law, expressing doubt that the plaintiff’s activities were ethical and legitimate. She noted that she visited a website of one of the plaintiffs – Fallbrook Pregnancy Resource Center – and found photos of people in nurse uniforms standing next to an ultrasound machine as well as text that stated that staff will “educate clients about different abortion methods available and describe in medical terms different abortion procedures.”
“The website also says clients will be evaluated by nurses and that they follow all HIPAA regulations, which if they’re not a medical provider, they don’t have to follow,” Justice Sotomayor said. “If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”
NIFLA attorney Michael Farris did not have a chance to respond to Justice Sotomayor’s question, but he argued throughout the session that California’s law takes an unjust aim at “pro-life pregnancy centers” by compelling licensed centers to point the way to an abortion and imposing onerous advertising rules on unlicensed centers.
In the end, both sides faced difficult questions from the justices about complex constitutional issues, said Heather Shumaker , an attorney for the National Women’s Law Center in Washington, who attended the oral arguments. The law center joined an amicus brief in the case in support of California.
Ms. Shumaker noted that an interesting point raised by some justices, including Associate Justice Stephen Breyer, was the lack of evidence justices had to analyze because the case never went to trial. The issue could mean the Supreme Court ultimately remands the case to a trial court for more fact finding, she said.
However, Ms. Shumaker said her overall impression was that the arguments made clear the strong reasoning behind California’s law and its importance.
“I am confident that at least some members of the Supreme Court understood what was at stake here and understand that there is a layer of deception behind the actions of the anti-abortion centers,” she said in an interview.
Paul Sherman, a senior attorney for the Institute for Justice in Arlington, Va., said that based on the oral arguments, it appears likely California’s law will be struck down. Mr. Sherman coauthored the Institute for Justice’s amicus brief in support of NIFLA.
“Even some of the more liberal members of the court seemed to think that California’s law went too far,” he said in an interview. “The real question now seems to be whether the court will rule broadly that there are significant limitations on the government’s ability to regulate speech by crisis pregnancy centers, or whether it will rule more narrowly that this particular law subjected crisis pregnancy centers to unreasonable burdens that other speakers offering pregnancy counseling were not subject to.”
A number of physician associations have weighed in on NIFLA v. Becerra . The American Medical Association issued a court brief in support of California and the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics joined several other medical associations in a similar brief . The American Association of Pro-Life Obstetrician and Gynecologists joined the Christian Medical Association and others to submit a brief in support of NIFLA.
The Supreme Court is expected to rule on the case by this summer.