The Supreme Court is weighing whether to hear an anti-abortion group's challenge on free speech grounds to a California law that requires "crisis pregnancy centers" — which advocate alternatives to the procedure — to also advise clients that the state offers free or low-cost contraception and assistance in ending their pregnancy.
The justices could announce as early as Monday whether they will hear the case, the latest in a series of clashes pitting the 1st Amendment against the state's power to regulate the medical profession.
The California Legislature said two years ago that it was concerned that the more than 200 pregnancy centers in California sometimes provided "intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed decisions" about their medical care. The so-called Reproductive FACT Act requires these centers to disclose whether they have medical professionals on the staff and to inform patients that the state offers subsidized contraception and abortion.
Last year, the U.S. 9th Circuit Court of Appeals upheld the law against claims that the disclosures were a kind of "compelled speech" that violated the 1st Amendment.
But three separate appeals are pending before the Supreme Court, including one from the National Institute of Family and Life Advocates, which says it has "over 110 nonprofit, pro-life pregnancy centers" in California.
At issue is whether "the state of California can compel nonprofit, faith-based, pro-life licensed medical facilities, against their religious convictions and identity, to advertise a government program that provides free or low-cost abortions," wrote Jay Alan Sekulow, counsel for the American Center for Law and Justice and a personal attorney for President Trump.
Appealing on behalf of the LivingWell Medical Clinic and two others, Sekulow said the disclosure law violates "the principle that one cannot be conscripted into acting as a ventriloquist's dummy for a government message."
The justices have considered the appeals for more than three weeks in their weekly conferences, suggesting at least several of them are inclined to hear the cases.
Recently, lower courts have split on controversies arising from state regulations of medical professionals.
In a case dubbed "Docs vs. Glocks," an appeals court in February struck down a Florida law that told doctors they could not question patients about whether they kept firearms at home. The National Rifle Assn. had pressed for the law, but the 11th Circuit Court in Atlanta ruled its restrictions violated the free-speech rights of physicians.
Sounding the same theme, judges struck down a North Carolina law that would have required doctors before performing an abortion to display for the woman a sonogram of the fetus and to describe the image. "This compelled speech provision violates the 1st Amendment," the 4th Circuit ruled three years ago.
And in a case that is closest to the pending appeal from California, an appeals court in 2014 struck down most of a New York City ordinance that required pregnancy centers to notify patients whether they "provide [abortions] or provide referrals for abortion." The 2nd Circuit Court said this provision "mandates discussion of a controversial political topic" and is therefore unconstitutional. However, the judges agreed the city could require these centers to disclose whether they had licensed medical professionals available.
By contrast, the 9th Circuit based in San Francisco has given the state more leeway to regulate the medical profession.
Four years ago, the judges rejected a free-speech challenge to the state law that banned medical providers from offering gay conversion therapy or "sexual orientation change efforts" to patients under age 18. The appeals court said the law "regulates conduct," not speech. "It bans a form of medical treatment for minors. It does nothing to prevent therapists from discussing the pros and cons of SOCE with their patients," wrote Judge Susan Graber.
The last year, a different panel of 9th Circuit judges relied on that decision in upholding the law requiring the religiously affiliated pregnancy centers to post a disclosure notice in the waiting room or to give patients a printed copy. It 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), prenatal care and abortion for eligible women." The notice includes a telephone number for the county social services office.
In a 3-0 ruling, the judges said the state has ample authority to regulate "professional speech" to protect the welfare of patients. The disclosure notice does not "encourage, suggest or imply" that women should seek abortion, wrote Judge Dorothy Nelson. It is "closely drawn to achieve California's interests in safeguarding public health and fully informing Californians of the existence of publicly funded medical services." Also upheld were separate provisions that require the centers to notify clients if they are not state licensed and disclose whether they have medical professionals available to provide advice or care.
Lawyers for California Atty. Gen. Xavier Becerra advised the court to turn away the appeal in the case of NIFLA vs. Becerra. The notice rules "fall well within the 1st Amendment's tolerance for the regulation of the practice-related speech of licensed professionals," they said.
If the court agrees to hear the challenge to California's clinic-disclosure law, it would be the second major case before the high court this term that arises as a conservative 1st Amendment challenge to a liberal state law — and it comes from the same lawyers.
The Arizona-based Alliance Defending Freedom, which appealed on behalf of NIFLA, also represents the Colorado baker who refused to make a wedding cake for a same-sex couple. The baker seeks a free-speech exemption to the state's civil rights laws. The high court will hear his case in December.