Is merely requiring clinics to inform women of the availability of free or low-cost abortions an unconstitutional infringement of religious liberty? That seems to be the latest contention in the reproductive culture wars.
Gov. Jerry Brown recently signed into law the Reproductive FACT Act, which is quite straightforward: Licensed healthcare facilities must 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]." That's it.
An unlicensed facility, meanwhile, must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.
The law goes into effect Jan. 1. But now two religious nonprofits — so-called crisis pregnancy centers in Marysville and Redding — are claiming the law violates their 1st Amendment right to free exercise of religion and freedom of speech, and are seeking an injunction against it.
Their argument has no merit.
No doctor, other healthcare professional or facility is required to provide contraceptives or abortions, or even provide referrals for these services. The new law simply ensures that clinics expose their patients to additional, accurate information.
In the preamble to the bill, the Legislature noted that more than 700,000 California women become pregnant each year, and that one-half of these pregnancies are unintended. The Legislature adopted the act because many women are not aware of the services available to them — and if they happen into a crisis pregnancy center, they'll exit none the wiser.
Crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have told pregnant women that their chances of getting breast cancer increase after an abortion. They have also warned clients that abortions are high-risk procedures that could well result in infection and death. Neither of these claims is true.
Although the Marysville and Redding facilities say the law is unconstitutional, the Supreme Court has been clear that the free exercise clause of the 1st Amendment can be used to contest a law only if it targets religious groups for discriminatory treatment.
In a seminal 1990 case, Employment Division vs. Smith, the court rejected a challenge by Native Americans to an Oregon law prohibiting the use of peyote. The court said it did not matter that the plaintiffs' religion required the use of this drug; the law prohibiting peyote was constitutional because it applied generally throughout the state and was not motivated by a desire to interfere with religion.
Likewise, the Reproductive FACT Act does not violate the free exercise clause because it applies to all healthcare facilities in California, and the lawmakers' chief goal was ensuring that women are adequately informed of the benefits available to them. They weren't picking on religious people.
Nor should the crisis pregnancy centers succeed in their claim that the need to post a notice amounts to unlawfully compelled speech. 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. Whether the patient has a heart problem, wants plastic surgery or is considering how to handle an unintended pregnancy should make no difference. There is a constitutional right to abortion, after all.
More generally, 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. Courts consistently have upheld such disclosure requirements and rejected claims that they violate the 1st Amendment.
Perhaps the crisis pregnancy centers in Redding and Marysville were emboldened by the Supreme Court's 2014 ruling that the federal government cannot require businesses to provide contraceptive coverage if doing so would violate the owners' religious beliefs. But the Reproductive FACT Act is quite different in that it is limited to healthcare providers and requires nothing other than giving information to patients.
There is, however, one way in which the opposition to the federal contraceptive mandate and to the new California law are similar: They are both part of an aggressive ongoing effort to deny women access to reproductive healthcare.
Erwin Chemerinsky is the dean of the UC Irvine School of Law.