Op-Ed: If it wasn’t related to abortion, California’s FACT Act would easily be upheld by the Supreme Court

The Supreme Court will hear oral arguments Tuesday in the case National Institute of Family and Life Advocates vs. Becerra, which challenges a California law requiring reproductive healthcare facilities to inform women of state programs that might assist them. It should be an easy issue to decide — in favor of the California law — but it is not because it arises in the context of abortion.

Four justices — John G. Roberts Jr., Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — are hostile to abortion rights and have voted to uphold every related regulation that has come before them. A fifth justice — Anthony M. Kennedy — has a more mixed record, but he too has often voted to restrict a woman’s right to choose. California’s statute is at risk, and striking it down could have significant implications far beyond the abortion context.

The Reproductive FACT Act requires that licensed healthcare facilities post or distribute a notice that states, “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].” A nonmedical facility that counsels women about reproductive health must post or distribute the same notice, adding an acknowledgment that it is not licensed as a medical facility by the state of California.

The California statute was enacted so that women would receive accurate information about the existence of state healthcare programs. It mandates only that the notice be made available to patients. The words can be printed out and handed to patients or clients, or the notice can be posted on a wall. No one is required to say anything. Nor is there any requirement to provide additional information; for instance, specifics about contraception or a referral to a clinic that performs abortions.

The preamble of the FACT Act explains the Legislature’s goal: “access to reproductive health services” for “all California women, regardless of income.” Lawmakers were concerned that many women with a surprise or unwanted pregnancy might choose to go to “crisis pregnancy centers” that “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions,” which interferes “with women’s ability to be fully informed and exercise their reproductive rights.” The Legislature found that these licensed and unlicensed centers employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate.”

Under traditional legal principles, the Supreme Court would acknowledge that there is an important state interest in letting women know of programs available to them. Moreover, because of the factual nature of the notice and the ways it can be disseminated, the 1st Amendment “burden” on the crisis pregnancy centers — the extent to which the statute restricts free speech or freedom or religion rights — is extremely minimal.

It’s quite possible, however, that with four justices who have in the past voted to uphold any restriction on abortion, and a fifth who often joins them, the FACT Act will be condemned as compelled speech and declared unconstitutional. The burden on 1st Amendment rights will be found to be too heavy.

If the regulation is struck down it will call into question the myriad of other areas where the government requires disclosures. Healthcare professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. Businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. Employers are required to post notices for employees about workplace rights. Courts consistently have rejected claims that making such disclosures crosses a constitutional red line; NIFLA vs. Becerra could change that.

For anyone who supports a woman’s right to know and exercise all her reproductive healthcare options, there is a silver lining in the attack on the FACT Act. Should the act’s foes prevail, it will make it easier to challenge laws in states including Texas, Louisiana and South Dakota that require pregnant women to be shown pictures of fetuses and told often inaccurate information about abortion before they can terminate a pregnancy.

Erwin Chemerinksy is dean of the UC Berkeley School of Law.

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