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Supreme Court Warily Eyes California Law Involving Abortion and Free Speech Supreme Court Warily Eyes California Law Involving Abortion and Free Speech
(about 3 hours later)
WASHINGTON — A California law that requires “crisis pregnancy centers” to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday.WASHINGTON — A California law that requires “crisis pregnancy centers” to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday.
Justices across the ideological spectrum said they suspected that the law had singled out centers run by opponents of abortion. Justice Elena Kagan said she feared that the law had been “gerrymandered” to address only some providers, something she said would be a serious First Amendment problem. The centers, which are often affiliated with religious groups, seek to persuade women to carry their pregnancies to term or to offer their offspring for adoption. The law requires centers licensed by the state to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.
A part of the law that requires some unlicensed centers to disclose their status in large type and many languages when they advertise seemed likely to be struck down. Justices across the ideological spectrum said they suspected that the law had singled out centers run by opponents of abortion. Justice Elena Kagan said she was concerned that the law had been “gerrymandered” to address only some providers, something she said would pose a serious First Amendment problem.
Justice Anthony M. Kennedy called that part of the law an “undue burden.” Justice Sonia Sotomayor said that part of the law, at least in some of its applications, was “burdensome and wrong.” A second part of the law, concerning unlicensed clinics, does not require them to post notices about the availability of abortion but does require them to disclose that they are not licensed by the state. In advertising, they must do so in large type, often in many languages.
“This is an undue burden,” Justice Anthony M. Kennedy said, “and that should suffice to invalidate the statute.” Justice Sonia Sotomayor said that part of the law, at least in some of its possible applications, was “burdensome and wrong.”
Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.
In 1992, the Supreme Court upheld a Pennsylvania law that required doctors who performed abortions to provide some kinds of information to their patients. Several members of the court’s liberal wing said that the California law served similar interests.In 1992, the Supreme Court upheld a Pennsylvania law that required doctors who performed abortions to provide some kinds of information to their patients. Several members of the court’s liberal wing said that the California law served similar interests.
“In law,” Justice Stephen G. Breyer said, “what is sauce for the goose is sauce for the gander.” “In law,” Justice Stephen G. Breyer said, “what is sauce for the goose is sauce for the gander.” Justice Kagan called the California law “the exact flip side” of the one sustained in the 1992 decision, Planned Parenthood v. Casey.
Justice Kagan called the California law “the exact flip side” of the one sustained in the 1992 decision. Michael P. Farris, a lawyer for the centers, said the law upheld in the Casey decision differed from the one in California because it concerned medical professionals.
But Justice Kennedy, who probably holds the crucial vote, seemed hostile to the law. “Pennsylvania imposed that requirement in the context of an informed consent discussion,” he said. “Informed consent is triggered by a doctor proposing to perform a particular medical intervention.”
Michael P. Farris, a lawyer for the centers, said the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. Joshua A. Klein, a lawyer for the state, said the required disclosures provided information where and when it was most valuable. Justice Kennedy, who joined the controlling opinion in Casey and probably holds the crucial vote in the new case, seemed hostile to the California law.
The centers, which are often affiliated with religious groups, seek to persuade women to choose parenting or offering their offspring for adoption. The law requires centers licensed by the state to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information. “Do you agree,” he asked a lawyer for the state, “that mandating speech that the speaker would not otherwise give — indeed, does not agree with — alters the content of the message?”
The California Legislature found that the roughly 200 centers in the state used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The lawyer, Joshua A. Klein, said yes. The required disclosures, he said, provided information where and when they were most valuable.
A separate part of the law, concerning unlicensed clinics, does not require them to post notices about the availability of abortion but does require them to disclose that they are not licensed by the state. Justice Neil M. Gorsuch responded that the state had other ways to convey its message. “If you’re trying to educate a class of persons about their rights,” he said, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
The California Legislature found that the roughly 200 centers in the state used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed, time-sensitive decisions about critical health care.”
Justice Sotomayor said she had examined one center’s website and found it misleading. She said it showed what appeared to be a nurse in front of an ultrasound device, mentioned abortion and indicated that the center complied with medical privacy laws.
“If a reasonable person could look at this website and think that you’re giving medical advice,” she asked, “would the unlicensed notice be wrong?”
Mr. Farris said unlicensed centers do not provide medical services but only advice about pregnancy.
Justice Kennedy was critical of Justice Sotomayor’s outside research. “In this case,” he said, “I didn’t go beyond the record to look on the internet because I don’t think we should do that.”
Justice Gorsuch said the state could address misleading speech more directly, through lawsuits and prosecutions. That “puts the burden on the government to prove that someone has abused their free-speech rights,” he said. The California law, by contrast, he said, “requires you to compel speech from someone else that implicates First Amendment concerns.”
“And this court,” he added, “is normally pretty jealously protective of speech.”
A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld both parts of the law.A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld both parts of the law.
“California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” Judge Dorothy W. Nelson wrote in an opinion upholding the requirement that licensed clinics post a notice about obtaining abortions.“California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” Judge Dorothy W. Nelson wrote in an opinion upholding the requirement that licensed clinics post a notice about obtaining abortions.
“The notice informs the reader only of the existence of publicly funded family-planning services,” Judge Nelson wrote. “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”“The notice informs the reader only of the existence of publicly funded family-planning services,” Judge Nelson wrote. “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”
Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options.Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options.
The Ninth Circuit also upheld the requirement that unlicensed clinics disclose that they are unlicensed. Jeffrey B. Wall, a lawyer for the federal government, took a middle ground. He said requiring centers not licensed by the state to say so was acceptable. But he objected to requiring licensed centers to provide information about abortion.
“California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state,” Judge Nelson wrote. “And given the Legislature’s findings regarding the existence of” the centers, “which often present misleading information to women about reproductive medical services, California’s interest in presenting accurate information about the licensing status of individual clinics is particularly compelling.” “What the First Amendment does not allow and what California has done is to require pregnancy centers to make disclosures about services they do not provide and that would violate their most deeply held beliefs without any showing by the state that it truly needs to compel speech rather than speak its own message,” he said.
The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, is in some ways similar to one argued last year concerning a Colorado baker who refused to make a custom wedding cake for a same-sex couple.The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, is in some ways similar to one argued last year concerning a Colorado baker who refused to make a custom wedding cake for a same-sex couple.
Both cases arose from religious objections but were pursued as free-speech challenges to state laws.Both cases arose from religious objections but were pursued as free-speech challenges to state laws.