To say that proponents of abortion rights had a bad day in court March 20 would be putting it charitably. That’s when the U.S. Supreme Court heard oral argument in a case that pits an anti-abortion group against the state of California. The big question at the end of the proceedings appeared to be not whether California would lose when a decision is announced in several months, but how badly.
But, in a twist, it could be a loss that actually advances the cause of abortion rights.
National Institute of Family and Life Advocates v. Becerra—the Supreme Court’s latest foray into the thicket of abortion—concerns the constitutionality of a state law that requires anti-abortion “crisis pregnancy centers” operating in California to make certain disclosures to their patients seeking pregnancy-related services and advice.
Under the law, known as the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, or “FACT Act,” licensed facilities are required to inform patients that the state provides free or low-cost contraception, prenatal care, and abortion services. Unlicensed facilities, meanwhile, are required advertise in thirteen different languages that they have no medical personnel on staff.
According to the state, the FACT Act is designed to guarantee informed consent on the part of patients faced with critical reproductive decisions. It takes aim at what defenders of the act claim is deceptive advertising that undermines and confuses women about their treatment options.
The case takes aim at deceptive advertising that undermines and confuses women about their treatment options.
The law is being challenged by the National Institute of Family and Life Advocates, a nonprofit corporation based in Fredericksburg, Virginia, that operates some 1,400 anti-abortion facilities nationwide, 200 of them in California. Also behind the challenge is the Arizona-based Alliance Defending Freedom, whose president—attorney Michael Farris—represents the NIFLA before the Supreme Court.
ADF attorneys also represent a Christian baker who refuses to sell wedding cakes to same-sex couples in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, another high-profile appeal currently pending before the Supreme Court.
The NIFLA argues that the law violates the First Amendment by compelling its centers to convey a pro-abortion message on behalf of the state. In 2016, the 9th Circuit of Appeals, based in San Francisco, rejected those arguments. This time, however, a dramatically different outcome appears likely.
With the exception of liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, every member of the Supreme Court except Clarence Thomas (who remained mute, as is his custom) voiced concerns about the law’s validity. Even Elena Kagan, normally a staunch liberal supporter of women’s rights, expressed doubts about the law, noting that it may have been “gerrymandered” to target anti-abortion clinics while sparing other medical clinics that provide reproductive and abortion services from the same disclosure requirements.
Justice Anthony Kennedy, the tribunal’s perennial swing voter, whose support the state would need to win the case, was even more dismissive of the law, calling the requirement that unlicensed clinics print disclaimers in thirteen different languages “an undue burden . . . that should suffice to invalidate the statute.”
In dressing up their anti-abortion policies as First Amendment claims, the NIFLA and the ADF are following a relatively new but consistent trend in rightwing legal advocacy circles that avoids challenging abortion per se, but nonetheless manages to chip away at abortion rights. A similar tactic was deployed two years ago in a case from Texas—Whole Woman’s Health v. Hellerstedt—that dealt with a law requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics to have facilities comparable to ambulatory surgical centers.
The pro-life movement sought to justify the Texas law on the grounds that it was designed to protect the health of women who receive abortions. But the Supreme Court struck down the law by a margin of 5-3 (Justice Antonin Scalia, who died in February 2016, did not participate), holding that it unconstitutionally imposed a substantial burden on abortion access.
In the California case, however, the NIFLA and the ADF appear to have the First Amendment on their side. Under longstanding precedent, the First Amendment protects not only the affirmative right to speak, but also the passive right not to be compelled to speak
As if sensing that a majority of his colleagues were prepared to overturn the FACT act, Justice Stephen G. Breyer raised the specter of unintended consequences.
The ruling may impact “coerced speech” on both sides.
“In law . . . what’s sauce for the goose is sauce for the gander,” Breyer remarked, referring to statutes on the books in many states across the country that require medical providers to counsel women about adoption as an alternative to abortion. If the NIFLA’s First Amendment claim prevails, Breyer asked in sum and substance, won’t such contrary counseling provisions in other states be similarly at risk as forms of coerced speech?
According to the pro-choice Guttmacher Institute, for example, eighteen states mandate that women be given counseling before an abortion. That may involve providing faulty information about the ability of a fetus to experience pain, the long-term mental-health consequences of abortion, and the nonexistent link between abortion and breast cancer.
When its final decision is handed down, the Supreme Court could rule against California in a way that protects such compulsory anti-abortion counseling laws elsewhere. But it may not. If the court upholds the right of anti-abortion clinics not to speak in California, other laws in other states that mandate anti-abortion speech may also be placed in jeopardy.
Bill Blum is a Los Angeles lawyer and a former state of California administrative law judge. He is currently a columnist with Truthdig.com.