It’s troubling that a divided Supreme Court ruled against a California law requiring licensed pregnancy counseling centers — which typically exist to steer women away from abortions — to hand out information telling women that there are state-funded clinics offering them various options for pregnancy, family planning and abortion.
The point of the disclosure requirement in the Reproductive FACT Act was to give women factual, straightforward information about their options, which most of these so-called pregnancy counseling centers are not in the business of doing. The state argued that it was regulating only a certain type of commercial speech when it required licensed centers to prominently display a notice to clients saying that California offers low-cost and free access to contraception, prenatal care and abortion, and offering an information phone number. Abortion, after all, is a woman’s constitutionally protected right.
But the court’s majority ruled that the state probably ran afoul of the 1st Amendment when it required the antiabortion clinics to post a script telling their clients where to get information about abortions. That, the court said, is “compelling individuals to speak a particular message.”
The court similarly ruled that requiring unlicensed centers to post notices telling customers that they are not licensed medical facilities was probably unconstitutional. That sounds absurd, yet the majority held that the state was unduly burdening those centers.
The court ruled 5 to 4 that the 9th Circuit Court of Appeals was wrong in not granting a preliminary injunction against the requirements of the law. The case will go back to the lower courts, where the state law will almost certainly be struck down in light of the Supreme Court’s new guidance.
That leaves California with little ability to warn women who walk into antiabortion pregnancy counseling centers that may have misleadingly presented themselves as having no agenda other than to offer full counseling. In its amicus brief, the Center for Reproductive Rights relates stories of women who told staff at these centers that they wanted an abortion and were given deceptive information, such as in one case being told that it was too late to terminate her pregnancy.
One possibility now would be for the state Legislature to retool the disclosure requirement for unlicensed clinics to make it less burdensome (they were required to display a notice in numerous languages and a specific size font) and to show evidence that not having the disclosure in the past had caused real harm.
Regardless of whether there is hope for any version of the Reproductive FACT Act, the state should strive to get the message to pregnant women in crisis that those so-called pregnancy counseling centers may not offer the substantial counseling they need when time is of the essence.