“Crisis pregnancy centers” are anti-abortion organizations that often masquerade as reproductive health clinics in order to lure pregnant people away from clinics that will provide them with abortion care. As the California legislature determined in a law intended to prevent these centers from deceiving people, “CPCs ‘pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions’ in order to fulfill their goal of ‘interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.’”
The fate of this law will now be decided by the Supreme Court. The Court announced Monday that it will hear NIFLA v. Becerra, which claims that California’s law violates the First Amendment’s free speech guarantee.
The law has two relevant parts. It requires state-licensed facilities that provide certain health or counseling services to post a notice informing patients that “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,” as well as a phone number that patients can call to inquire about these services. Meanwhile, it requires unlicensed facilities to display a notice that “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 plaintiffs are anti-abortion groups — one of which represents over a hundred pregnancy centers in California — who claim that the law requires them to convey a message that they would prefer not to convey, in violation of the First Amendment. It is a surprisingly difficult case, in large part because of past cases involving laws intended to discourage abortion.
Broadly speaking, the First Amendment does place strict limits on the government’s ability to force people to speak when they would prefer to remain silent, but these limits are far less strict in the commercial context. That’s why, for example, the Food and Drug Administration can require food manufactures to display nutritional information on their labels, or why a city can require buildings to display information about how to escape the building in the event of a fire.
The United States Court of Appeals for the Ninth Circuit, which rejected an effort to suspend the California law, held that the law should not be subject to the strictest constitutional scrutiny because it regulates speech by professionals. As the court explained:
…[T]he idea that the speech that occurs between a professional and a client is distinct from other types of speech stems from the belief that professionals, “through their education and training, have access to a corpus of specialized knowledge that their clients usually do not” and that clients put “their health or their livelihood in the hands of those who utilize knowledge and methods with which [they] ordinarily have little or no familiarity.”
When a person goes to a medical clinic (or something they assume to be a medical clinic), they are vulnerable. They place themselves in the care of a professional who has deep subject-matter knowledge (or, at least, someone who appears to have such knowledge) and on whom they must rely to make difficult personal decisions. It is very easy for a doctor or other professional to abuse this relationship. So the government has more authority to regulate speech between a doctor and a patient then they would to regulate other kinds of speech.
According to the Ninth Circuit, this need to protect women from medical professionals (or medical “professionals”) who may seek to take advantage of them was sufficiently weighty to overcome the crisis pregnancy center’s interest in not being required to display certain notices.
The case, however, now advances to a very conservative Supreme Court with a majority that is often very tolerant of anti-abortion regulations.
In its seminal Planned Parenthood v. Casey decision, the Supreme Court upheld several provisions of a Pennsylvania law targeting abortion, including an “informed consent” provision requiring abortion providers to give women certain information that might discourage them from having an abortion. The Court treated a First Amendment challenge to this provision very dismissively: “the physician’s First Amendment rights not to speak are implicated,” Casey explained, “but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”
“We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here,” the opinion concluded.
So when states require clinics that do provide abortion to convey a message that they would prefer not to convey, courts have often been very tolerant of such laws (though it is worth noting that the lower courts have reached wildly divergent views on the significance of this passage in Casey).
Now, the Supreme Court will have to decide what happens when a state requires crisis pregnancy centers that do not provide abortion to comply with a similar regulation.
Untying this knot will not be easy. Historically, liberal judges who favor abortion have been protective of abortion providers’ First Amendment rights, while conservative judges have been far less protective of these rights. NIFLA takes this legal issue and turns it on its head — suddenly, liberals find themselves wanting a less-protective rule while conservatives want the opposite.
Whatever decision the Supreme Court reaches, however, it must be mindful of applying the law evenly. It would be inappropriate — and it would raise the specter of improper partisan motivations — if the Supreme Court announces that crisis pregnancy centers have more First Amendment rights than abortion clinics.