California’s Reproductive FACT Act, a law requiring certain disclosures from anti-abortion “crisis pregnancy centers,” just had a terrible day in the Supreme Court. Though there is a strong possibility that the Court’s decision will be narrow, the FACT Act is very likely to fall, potentially in a very lopsided opinion.
Liberal justices — including Justices Sonia Sotomayor, Elena Kagan, and even feminist icon Ruth Bader Ginsburg — all pushed back on California’s arguments defending the law. The only justice who showed much inclination to allow the law to remain on the books was Justice Stephen Breyer — and he indicated he mostly wanted to send the case back down for a full trial before it would likely wind up back in the Supreme Court again.
The law at stake in the case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, involves anti-abortion clinics that, according to a state legislative committee, “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions.” Nationwide, about 2,500 of these clinics exist — more than the total number of abortion clinics — and these crisis pregnancy centers often seek to effectively strip patients of their ability to choose an abortion. By delaying a woman’s access to a legitimate abortion clinic, a crisis pregnancy center can potentially delay her abortion until she faces greater medical risks — or, in some states, until the abortion is illegal.
Broadly speaking, California’s law has two relevant parts. The first requires “licensed covered facilities” — facilities licensed by the state that offer certain medical services — to inform their clients 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,” and to provide a phone number patients can use to connect with these services. The second governs “unlicensed covered facilities,” which must notify their clients that they are not licensed and that they have “no licensed medical provider who provides or directly supervises the provision of services.”
Before oral arguments, NIFLA appeared to be a vehicle the Supreme Court could use to bring some coherence to its decisions governing free speech and abortion, which have become muddled in the wake of the Court’s decision in Planned Parenthood v. Casey. While pro-life groups argue several parts of the California law violate the First Amendment by forcing crisis pregnancy centers to speak against their will, Casey enabled many anti-abortion states to pass “informed consent” laws that force abortion providers to repeat a state-approved, anti-abortion message before they can perform an abortion.
Thus, a decision against the California law risks enshrining viewpoint discrimination into the First Amendment. If the Court holds that abortion clinics may still be required to convey anti-abortion messages, but crisis pregnancy centers enjoy robust protections against mandated disclosures, the Supreme Court will effectively choose sides in one of the nation’s great political debates. That is exactly what the First Amendment is supposed to forbid.
Early in the oral argument, Justice Breyer cut to the heart of this dynamic at play in NIFLA: “What is sauce for the goose is sauce for the gander,” Breyer declared. If California’s law is unconstitutional, then laws requiring abortion clinics to engage in anti-abortion speech should also be held to the same First Amendment standards.
Yet it quickly became clear that, due to the specific nature of this California law, the Court may not reach the broader question of how the First Amendment should apply to abortion generally. The most likely outcome is a fairly narrow decision targeting aspects of this particular state law.
Recall that the law in question requires unlicensed facilities to print a disclosure that they have no licensed medical provider. Early in the oral argument, Justice Anthony Kennedy asked a question that loomed over the rest of the proceeding: What if a crisis pregnancy center takes out an ad consisting of little more than the words “Choose Life”? By the statute’s terms, all ads run by such a clinic must include the required disclosure, in a font that is the same size as the other text of the ad. Thus, Kennedy’s hypothetical ad could wind up consisting of two words chosen by the clinic, and then a barrage of text mandated by the state.
Kennedy’s hypothetical bothered both sides of the bench; Justice Sotomayor asked California’s Joshua Klein to address it at least three times. When Klein finally did respond to a version of Kennedy’s question — confirming that yes, an ad consisting solely of the words “Pro Life” and a clinic’s name would be subject to the required disclosure — it was an ominous moment for him. Even Sotomayor suggested to him that this indicates the state’s law goes too far.
Even worse for the state, Justice Ginsburg pointed out that the state law requires unlicensed facilities to print the disclosure in as many as 13 different languages simultaneously — a requirement that, in Ginsburg’s words, “can be very burdensome.” No justice appeared ready to defend a law that requires a facility speaking on a matter of deep political controversy to dilute its two word message with lines and lines of text written in multiple languages.
Meanwhile, the requirements governing licensed facilities ran into trouble thanks to a combination of tough questions by Justice Kagan — and answers by Klein that seemed to wander far from the truth.
Kagan warned that the statute appears to be “gerrymandered,” in the sense that it appears to impose requirements on anti-abortion facilities while stringing together a series of exemptions to leave other facilities unmolested. Conservative Justice Samuel Alito piled on, pointing to an amicus brief which claims that 98 percent of the clinics covered by this law are “pro life” (though, in fairness, Klein disagreed with this figure).
Faced with these concerns, Klein could have leaned into the claim that the statute was intended to target crisis pregnancy centers. He could have argued that abortion clinics — or, for that matter, regular medical facilities — do not have crisis pregnancy centers’ record of seeking to mislead patients, and therefore California was justified in enacting a narrowly tailored statute intended to combat these deceptive practices where they exist. He could have framed California’s law as nothing more than an “informed consent” law for crisis pregnancy centers, and insisted that the law be upheld under the same standard the Supreme Court applies to abortion providers.
Instead, Klein took a different tact, arguing that the purpose of the law is to inform patients who seek free services (often, crisis pregnancy centers do not charge the people who seek their assistance) that certain state services exist.
In response, Kagan asked Klein to answer whether the state was really targeting crisis pregnancy centers out of a concern that they are deceptive. Neil Gorsuch, who occupies a seat that Senate Republicans held open for a year until Donald Trump could fill it, was blunter, noting that it is very unusual to require a private speaker to inform individuals of state services.
So based on Tuesday’s oral arguments, California’s law is almost certainly going down. The one silver lining for supporters of abortion rights, however, is that so much of the argument appeared focused on narrow aspects of this particular statute — which means the Court may not hand down any broad pronouncements that will prevent California from passing a new, more carefully tailored law.
Justice Ginsburg, in particular, appeared to have several ideas in mind for what such a law could say. It could require all facilities that offer reproductive health services to disclose which services they do provide. Or it could require facilities that do not provide abortions or contraceptive care to state as much (though Chief Justice John Roberts appeared skeptical of the latter kind of law).
But it is unlikely that the specific law enacted by California — one that appears to target crisis pregnancy centers to the exclusion of other facilities, or that places overbroad disclosure requirements on very basic advertisements — will survive contact with the Supreme Court. NIFLA could prove to be a very minor skirmish in the abortion wars, but it is one California appears destined to lose.
The broader question, of whether the Supreme Court will offer sweeping protection to anti-abortion speakers — and far weaker protections to pro-abortion speakers — could remain unresolved until a future case.