The Supreme Court said Monday it will hear an anti-abortion group's free-speech challenge to a California law that requires "crisis pregnancy centers" to notify patients that the state offers subsidies for contraception and abortion.
The challengers say the disclosure law violates the 1st Amendment because it forces the faith-based pregnancy centers to send a message that conflicts with their aim of encouraging childbirth, not abortion.
It will be the second major case this term in which a conservative, religious-rights plaintiff is challenging a liberal state law on free-speech grounds — and both came from the same lawyers. The Arizona-based Alliance Defending Freedom sued on behalf of a Colorado baker who refused to make a wedding cake for a same-sex couple and was charged with violating the state's civil rights law. The justices are due to hear his appeal on Dec. 5.
ADF lawyers also challenged the California disclosure law on behalf of the National Institute of Family and Life Advocates, which describes itself as "a faith-based, Christian ministry that seeks to glorify God by proclaiming the sanctity of human life, both born and unborn." The group represents 110 pregnancy centers in California, and it contends the disclosure provisions amount to unconstitutional "compelled speech."
The key issue, said Michael Farris, ADF's president, is whether "California can put its thumb on one side" of the scale and require a faith-based center "to promote a pro-abortion message."
The case presents a clash between the state's power to regulate the medical profession and the Constitution's protection for the freedom of speech. Historically, states have had broad authority to regulate physicians and medical providers to protect patients from fraud and sub-standard care. But in recent years, doctors have sued and won claims that state lawmakers had gone too far and were wrongly interfering with the doctor-patient relationship.
In North Carolina, abortion doctors sued and won a free-speech challenge to a law that would have required them to describe to their patients a sonogram of a developing fetus. In another case, informally dubbed Docs vs. Glocks, physicians in Florida sued successfully to block a state law that would have barred them from asking patients about whether they had guns at home.
California lawmakers passed the disclosure law two years ago after concluding as many as 200 pregnancy centers in the state sometimes used "intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women" about their options for medical care.
The law, known as the Reproductive FACT Act, says these centers must disclose whether they have a medical license and have medical professionals available. They must also post a notice in the waiting room that 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, pre-natal care and abortion." The notice includes a phone number for a county social services office.
Several centers sued to block the disclosure rule, but lost before three federal district judges. Last year, the 9th Circuit Court upheld the law in a 3-0 decision. Judge Dorothy Nelson said the disclosure provision does not "encourage, suggest or imply" that a woman should seek an abortion. It is "closely drawn to achieve California's interest in safeguarding public health and fully informing Californians of the existence of publicly funded medical services," she said.
In their appeal to the Supreme Court, the challengers pointed out that the 2nd Circuit Court had struck down a similar provision in a New York City ordinance.
The court's decision to hear the case may reflect the impact of new Justice Neil M. Gorsuch. He had shown a strong interest in religious liberty claims as an appeals court judge. A few weeks after he arrived, the high court announced it would hear the case of the Colorado baker. It takes the vote of four justices to hear an appeal, and five to have a majority. That suggests the outcome in the California case, like the one from Colorado, will turn on the vote of Justice Anthony M. Kennedy.
California Atty. Gen. Xavier Becerra vowed to defend the disclosure law. It "ensures that women in California receive accurate information about their health care options," he said.
But the state is fighting on two fronts. Last month, a superior court judge in Riverside County ruled the law violated the free-speech provisions of California's Constitution.
In addition to NIFLA vs. Becerra, the justices agreed to hear two other free-speech claims on Monday. In Minnesota Voters Alliance vs. Mansky, the court will decide whether states can forbid voters from wearing a "political badge, political button or other political insignia" in a polling place on election day. A tea party leader sued after he was temporarily blocked from voting because he wore a T-shirt that sported a tea party logo and read "Don't Tread on Me."
In Lozman vs. City of Riviera Beach, the court will decide whether someone who was arrested after refusing to quit talking at a city council meeting can sue for a "retaliatory arrest" in violation of the 1st Amendment. The 11th Circuit in Atlanta said the law puts an "absolute bar" on such claims so long as the police officer had probable cause to arrest the speaker for being disruptive. But the justices voted to hear the appeal of the persistent speaker.
On Twitter: DavidGSavage
1:00 p.m.: This article was updated with more background and analysis.