Abortion foes’ latest Supreme Court challenge could turn out badly for them.

Abortion Foes’ Latest Supreme Court Challenge Could Turn Out Very, Very Badly for Them

Abortion Foes’ Latest Supreme Court Challenge Could Turn Out Very, Very Badly for Them

The law, lawyers, and the court.
Nov. 13 2017 1:20 PM

Be Careful What You Sue For

If the Supreme Court strikes down California’s “crisis pregnancy center” disclosure act, dozens of anti-abortion laws could fall with it.

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Anti-abortion and and abortion rights demonstrators rally outside of the U.S. Supreme Court on June 20, 2016.

Bill Clark/CQ Roll Call

On Monday morning, the Supreme Court agreed to weigh in on NIFLA v. Becerra, yet another religion-fueled fight over free speech. NIFLA involves a long-simmering dispute surrounding a 2015 California law requiring the state’s more than 200 “crisis pregnancy centers” to notify patients whether they actually have a medical license, and to disclose that California subsidizes birth control and abortion services. Faith-based anti-abortion groups argue that the law violates the CPCs’ freedom of speech under the First Amendment. The Supreme Court will soon decide whether the California law is constitutionally permissible. If the justices vote to strike down the statute, abortion foes will celebrate the decision as a resounding victory for their cause. An eventual ruling against California, though, could also lead to the invalidation of anti-abortion counseling laws across the country on similar First Amendment grounds.

CPCs often open their doors near abortion clinics and advertise to pregnant women in need of medical help. But they offer very limited services—sometimes, no actual medical services at all—and espouse anti-abortion information in an attempt to counsel women out of terminating their pregnancies. Because these clinics do not tell women about their real options and offer medically discredited propaganda, California passed the Reproductive FACT Act requiring clinics to post signs that read:

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].
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Medically unlicensed CPCs are required to post notifications saying:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

The National Institute of Family and Life Advocates, which says it represents 110 CPCs, sued, arguing that the law’s forced signage constitutes compelled speech that violates their First Amendment right to free expression. NIFLA claimed that the FACT Act forced the CPCs to endorse a message that conflicts with their aim of encouraging childbirth, not abortion. “The state of California,” it alleged, “now forces licensed centers to communicate the government’s message about state-funded abortions to everyone who walks in the door.”

In 2016, the U.S. Court of Appeals for the 9th Circuit upheld the law in a unanimous ruling, writing that California was merely regulating the practice of medicine and not forcing anyone to promote abortion. The Supreme Court will now review that decision. The presence of five conservative justices on the court who personally oppose abortion does not bode well for California. And while Justice Anthony Kennedy has voted to affirm women’s constitutional right to abortion access, he is a free speech purist who seems likely to hold that the FACT Act infringes upon freedom of expression in a decisive manner.

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If the FACT Act falls, however, it would not necessarily be an unmitigated victory for abortion opponents. Eighteen states have passed laws compelling abortion providers to “counsel” their patients with false anti-abortion propaganda. Five states require doctors to tell patients that there is a link between abortion and breast cancer. (There isn’t.) Thirteen force doctors to inform patients that pre-viable fetuses can feel pain. (They can’t.) Eight order doctors to warn patients that women who terminate their pregnancies often have serious long-term negative mental health consequences. (They don’t.) South Dakota directs doctors to tell patients that abortion increases their risk of suicide. (It doesn’t.)

In 1992’s Planned Parenthood v. Casey, the Supreme Court did rule that states may constitutionally compel physicians to provide “truthful, nonmisleading information” to women who seek an abortion. But the counseling requirement at issue in Casey was dramatically different from those prevalent today. Pennsylvania’s statute required doctors to provide “printed materials” to women “describing the fetus and providing information about medical assistance for childbirth,” as well as “information about child support from the father” and “a list of agencies which provide adoption and other services as alternatives to abortion.” Women could ignore this material if they preferred, and the doctor herself was not required to repeat it.

By comparison, today’s counseling laws are extraordinarily intrusive and compel doctors to personally express medically discredited opinions with which they may disagree. In most states, counseling must be face-to-face. In some, the anti-abortion counseling must occur while the woman is undergoing an ultrasound. That’s a far cry from Pennsylvania’s law directing abortion providers to make medically accurate materials available to patients for their optional perusal.

The federal judiciary is sharply divided over these modern laws. Some courts have upheld them—but in 2014, the U.S. Court of Appeals for the 4th Circuit struck down an especially intrusive North Carolina counseling law on free speech grounds. The court declared that under the First Amendment, a state “cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.” The Supreme Court declined to review the ruling.

That’s the double-edged sword here: If California cannot legally compel CPCs to provide basic information about actual family planning services and disclose their lack of a medical license, it is difficult to see how other states can continue to force abortion providers to express discredited anti-abortion misinformation. A First Amendment rule that prohibits the government from compelling CPCs to post truthful disclosures would surely bar the government from compelling real doctors to spout biased pseudoscience. Thus, if the Supreme Court rules against California in this case, it seems likely to espouse a constitutional principle that would ultimately—if applied consistently—invalidate dozens of anti-abortion regulations for infringing upon doctors’ freedom of speech.

In the lower courts, CPCs attempted to differentiate these two forms of compelled speech by claiming that, unlike doctors, their religious rights are burdened by endorsing speech that includes abortion information. But the Supreme Court explicitly tossed the free exercise question on Monday, focusing solely on freedom of speech. It’s possible, of course, that the conservative justices could view the free speech question through religion-tinted glasses. But in theory, this case will be decided on free speech grounds alone—meaning NIFLA may have opened up a much bigger can of worms than it bargained for.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.