One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.
On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.
Justice Clarence Thomas wrote the majority opinion on behalf of his fellow Republicans. All four of the Court’s Democratic appointees dissented.
NIFLA involves a California law targeting “Crisis Pregnancy Centers,” anti-abortion groups that often try to actively deceive pregnant individuals in order to prevent them from having an abortion. As the state legislature explained when it enacted the law at the heart of NIFLA, “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 law has two relevant parts. One requires “licensed covered facilities” — facilities licensed by the state that offer certain medical services — to inform potential clients that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services…prenatal care, and abortion for eligible women.” The second governs “unlicensed covered facilities,” which must notify potential clients that the facility is not licensed and that they have “no licensed medical provider who provides or directly supervises the provision of services.”
In many ways, this law is a mirror image of similar laws enacted by anti-abortion state legislatures, which require genuine abortion clinics to communicate a state-sponsored message to people seeking abortions. Under Planned Parenthood v. Casey, the state may require abortion providers to obtain “informed consent” from their patents before they perform an abortion.
The specific law at issue in Casey required abortion providers to tell their patients “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child,'” and to notify them of the “availability of printed materials from the State, which provided information about the child and various forms of assistance.”
Other states have enacted “informed consent” laws that are significantly more aggressive, and that amount to little more than anti-abortion advocacy. As ThinkProgress’ Casey Quinlan reported, “six states require that patients are told that personhood begins at conception and 13 states require that patients are told about the fetus’ ability to feel pain.”
Nevertheless, Thomas’ opinion concludes that California’s law is unconstitutional because it compels anti-abortion advocates to “speak a particular message.” And it does so while explicitly endorsing the holding in Casey, which allows the state to compel abortion providers to speak a particular message.
Thomas justifies this viewpoint discrimination on the theory that laws like the one in Casey impose a “requirement that a doctor obtain informed consent to perform an operation,” while California’s law “is not an informed consent requirement or any other regulation of professional conduct.”
Recall, however, that the entire point of CPCs is that they masquerade as reproductive health clinics in order to discourage patients from obtaining a particular type of medical care. The crux of Thomas’ opinion is that when a doctor is open and honest about the services they provide, the state may require them to speak the state’s preferred message. But when a clinic actively tries to trick patients, the state cannot require that clinic to seek that patient’s “informed consent.”
This deception can have far graver consequences for a patient’s health than the harms allegedly addressed by anti-abortion “informed consent” laws. As Justice Stephen Breyer points out in dissent, “no one doubts that choosing an abortion is a medical procedure that involves certain health risks. But the same is true of carrying a child to term and giving birth.”
Indeed, “’childbirth is 14 times more likely than abortion to result in the woman’s death.”
In fairness to Thomas, NIFLA does not slam the door entirely on a more narrowly tailored law that would have a similar effect on CPCs. California might, for example, pass a law requiring all clinics that purport to offer reproductive health services to disclose whether or not they provide abortive and contraceptive care.
But even this hypothetical law may have a steep hill to climb after NIFLA. In striking down the disclosure requirements that California imposed on unlicensed clinics, Thomas claims that “our precedents require disclosures to remedy a harm that is ‘potentially real not purely hypothetical,'” and that “California has not demonstrated any justification for the unlicensed notice that is more than ‘purely hypothetical.’”
“The only justification that the California Legislature put forward was ensuring that ‘pregnant women in California know when they are getting medical care from licensed professionals,’” Thomas writes. But “California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals.”
In order to pass a law informing patients that they may be entering a sham clinic, in other words, California may first have to produce data showing that patients do not already know that they are entering sham clinics. And the weight of any data California does produce will be weighed by a judiciary that just held that abortion providers have weaker First Amendment rights than abortion opponents.