The Supreme Court on Tuesday blocked enforcement of a California law that requires faith-based crisis pregnancy centers to notify patients that the state offers subsidized medical care, including abortions.
By a 5-4 vote, the justices said the disclosure rule likely amounts to compelled speech that violates the 1st Amendment. The court did not strike down the California law, but sent the case back to lower courts with instructions that enforcement of key provisions be immediately blocked while the legal challenge continues.
California lawmakers passed the law three years ago, forcing the pregnancy centers, which strongly oppose abortion, to notify women that the procedure is an option for them. The state had been concerned that some of the more than 200 centers used deceptive advertising and counseling practices to confuse or intimidate women.
The law also requires centers to advise women if they do not have a licensed medical professional on staff.
A federal judge and the 9th Circuit Court had refused to block the state’s disclosure law on the grounds it could regulate “professional speech” to protect patients and customers from misleading or deceptive marketing.
But Justice Clarence Thomas said the centers are “likely to succeed” on their 1st Amendment challenge against the law. He was joined by four other conservatives in the case of National Institute of Family and Life Advocates vs. Becerra.
Speaking for the court, Thomas said the California law unfairly targeted pregnancy centers that oppose abortion. “Here, for example, licensed clinics must provide a government-drafted script about the availability of state-services. One of those services is abortion, the very practice the [centers] are devoted to opposing,” he said.
The court overruled the 9th Circuit and said judges should have blocked enforcement of the disclosure law on 1st Amendment grounds.
In a concurring opinion, Justice Anthony M. Kennedy said the history of the California law shows the faith-based centers were “targeted because of their beliefs.… Governments must not be allowed to force persons to express a message contrary to their deepest convictions.”
Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined to form the majority.
In dissent, Justice Stephen Breyer said the government in many cases requires doctors, lawyers, landlords, accountants and others to make disclosures to their clients and patients. He said the ruling was inconsistent with previous decisions in which the court has upheld, for example, state requirements that a doctor inform a woman seeking abortion about the option of adoption.
“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?” Breyer asked.
Breyer said that because Americans hold strong and differing views on abortion, the court should permit laws that allow women to know about their choices and defer, when possible, to state legislatures. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in dissent.
Mark Rienzi, president of Becket, a nonprofit religious liberty law firm, said the high court had ruled “that both sides of a debate matter, and the government cannot silence one side’s speech just because it may be unpopular. Crisis pregnancy centers like NIFLA serve women and children according to their religious mission, and California should respect that.”
California Atty. Gen. Xavier Becerra, who defended the law, disagreed with the ruling. “When it comes to making their health decisions, all California women – regardless of their economic background or ZIP code – deserve access to critical and non-biased information to make their own informed decisions,” he said.
California Assemblyman David Chiu (D-San Francisco), who authored the law, said the decision would mean some California women would be less informed and more susceptible to manipulation.
“These fake health centers are dangerous to women’s health,’’ he said. “Today is a stark reminder that under a Supreme Court with a Trump majority, reproductive rights are more vulnerable than ever.”
Usually states have broad authority to protect consumers, such as requiring doctors, hospitals and other medical providers to inform patients of the risks of certain treatments.
But courts have also objected to required disclosures that carry an ideological message, whether for or against abortion.
The National Institute of Family and Life Advocates, which represents 110 “non-profit, pro-life pregnancy centers” in California, sued and sought to block the disclosure law. But a federal judge in San Diego and the 9th Circuit Court of Appeals in San Francisco refused to do so. Judge Dorothy Nelson of the 9th Circuit said the state has ample authority to regulate “professional speech” to protect the welfare of patients. Moreover, the required disclosure, she said, does not “encourage, suggest or imply” that women should consider or choose abortion.
Lawyers for the Arizona-based Alliance Defending Freedom appealed to the Supreme Court, contending the disclosure law violated the 1st Amendment and its protection for free speech and the free exercise of religion. The same lawyers also appealed and won a narrow ruling earlier this month on behalf of the Colorado baker who cited his Christian beliefs in refusing to make a wedding cake for a same-sex couple.
The disputed California law, called the Reproductive FACT Act, said licensed medical providers must provide this notice to patients: “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,” with a correct phone number included.
A separate provision required an unlicensed facility that offered counseling to notify patients it had “no licensed medical professional” on the staff. The centers could post the required notices where they would be seen or give each patient a printed copy. The majority found that provision also presented an undue burden on the centers because any risk posed to women was hypothetical.
In recent years, some disclosure laws have been challenged and struck down on the grounds they were a state-sponsored ideological message. The challenges have come from the left and the right.
Last year, in the so-called Docs vs. Glocks case, the 11th Circuit Court in Atlanta struck down a Florida law that said doctors could not question patients about having weapons at home. The measure had been promoted by the National Rifle Assn.
Sounding a similar theme, the 4th Circuit Court struck down a North Carolina law that would have required doctors before performing an abortion to display and describe a sonogram of the fetus. Judges described the law as “compelled speech that violates the 1st Amendment.”