Bending Toward Justice: Supreme Court hears argument Tuesday in case challenging notices required in crisis pregnancy centers

Photo: (Photo by Eric Thayer/Getty Images)

The justices will hear the appeal of pregnancy crisis centers in California challenging the state’s requirements that the centers provide accurate medical information about abortions.

A First Amendment battle is brewing over what states can require women’s health clinics to tell patients about abortions. The Supreme Court may resolve the battle after hearing arguments on Tuesday in National Institute of Family Life and Health Advocates v. Becerra.

Crisis pregnancy centers can be either licensed medical facilities, or unlicensed counseling centers, but in most cases are religious organizations with a clear message to women: abortions are harmful to your health and you should not have one. As constitutional law scholar and law school dean Erwin Chemerinsky wrote in the Sacramento Bee: “Crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have falsely told pregnant women that their chances of getting breast cancer increase after an abortion.”

The centers lure pregnant women in with deceptive advertising that features people who are made to look like doctors and nurses (lab coats, stethoscopes), and but actually intimidate women from making informed decisions about their pregnancy and health care.

These were the findings of the California legislature when it enacted the Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act in 2015. The law aims to correct these deceptive practices by requiring that women patients be told about all of their health care options, including contraception, pre-natal care, and abortion.

Under the Reproductive FACT Act, nonprofits that are licensed to provide medical services — like ultrasound exams — must post notices to inform their patients that free or low-cost abortions are available. They must also provide the telephone number of the state agency that directs women to providers of those abortions.

Crisis pregnancy centers that are not licensed to provide medical services are required to place a notice on site, and in any print or digital advertising, stating that the center is not licensed as a medical facility by the state and that it “has no licensed medical provider who provides or directly supervises the provision of services.” The disclaimers must be posted in the 13 most popular languages spoken in California.

The California attorney general enforces the law by imposing fines for violations; $500 for the first offense, and $1000 for any subsequent violations.

Several crisis pregnancy centers sued to block the law. They argued that the required notices and disclaimers violate their First Amendment rights by compelling them to post information that conflicts with their religious beliefs and organizational mission. They also argued that the statute violates their religious freedom rights under the Fist Amendment. A federal district court in California, and the Ninth U.S. Circuit Court of Appeals rejected the centers’ challenge. The U.S. Supreme Court granted review, but only as to the compelled speech claim.

As with many First Amendment cases, this one turns on the level of scrutiny the court will use in analyzing the alleged constitutional violation. The lower courts applied what’s called “intermediate scrutiny” — which means the challenged law must advance an important government interest by means that are substantially related to that interest. The centers urge the Supreme Court to apply “strict scrutiny,” a standard that requires government to use the least restrictive means to achieve a compelling governmental interest. Very few laws that impinge First Amendment rights can pass a strict scrutiny test.

Julie Rikelman, senior director of litigation at the Center for Reproductive Rights, explained why the Ninth Circuit was correct in a post at SCOTUSBlog:

The 9th Circuit rightly concluded that the provision requiring licensed CPCs, which do provide some medical services, to post a sign in their waiting rooms about the availability of low-cost or free comprehensive reproductive health services is likely to survive intermediate scrutiny. Under intermediate-scrutiny analysis, remedying consumer deception and protecting the public health are certainly important state interests. And the provision is not more intrusive than necessary – it does not force staff at the CPC to speak the information in the notice in their own voices, for example.

Ilya Shapiro, a constitutional scholar at the Cato Institute, takes a different view, also at SCOTUSBlog:

Moreover, the 9th Circuit’s test ignores the threat posed by compulsory transmission of government-selected facts. Under that test, a state can compel unwilling physicians to recite any fact that may be relevant to “the health of [the state’s] citizens,” a definition broad enough to encompass essentially any statement the government chooses. If left to stand, the decision below would allow states to force professionals of all kinds to promote products and services they morally oppose.

Indeed, most of the compelled speech cases involving medical professionals and abortion services arise from state laws that require doctors to provide information to their patients abortion that is false or misleading, as Dahlia Lithwick and Mark Joseph Stern wrote in Slate when the Supreme Court accepted review of the case.

Eighteen states have passed laws compelling abortion providers to “counsel” their patients with false anti-abortion propaganda. Five states require doctors to tell patients that there is a link between abortion and breast cancer. (There isn’t.) Thirteen force doctors to inform patients that pre-viable fetuses can feel pain. (They can’t.) Eight order doctors to warn patients that women who terminate their pregnancies often have serious long-term negative mental health consequences. (They don’t.) South Dakota directs doctors to tell patients that abortion increases their risk of suicide. (It doesn’t.)

It’s an asymmetric dispute. California lives in the fact-based world, and simply wants medical professionals — and those who hold themselves out as such — to provide factually-accurate information that allows patients to make the most informed decision. States that advance anti-abortion propaganda prize religious and moral beliefs over science. They shouldn’t be allowed to force doctors to tell patients about adverse of abortions that are not born out by medical research.

Let’s hope the Supreme Court upholds California’s law, but does so in a way that doesn’t give cover to state laws that peddle false and misleading information about abortion.