Republicans have always been absolutely rabid when it comes to women’s bodies and abortion rights. But one of the most repugnant things they’ve come up with (and there are quite a few to name) to stop women from accessing their legal right to abortion is to require doctors to say things to women seeking abortions that are outright lies. Among these laws are contained things like making doctors tell women that a medication-induced abortion can be reversed, saying that a pre-viable fetus can feel pain, and that abortion causes breast cancer. All of these things are either untrue, untested or have been disproven. This is a gross violation of ethics and of a woman’s privacy. But a new Supreme Court case may end up countering these laws and taking a step closer to reproductive freedom.
The case—National Institute of Family and Life Advocates (NIFLA) v. Becerra—will come down to the First Amendment rights of health professionals. The Supreme Court will consider whether a 2015 California law that requires religious-affiliated crisis pregnancy centers to post notices regarding the availability of abortion violates the First Amendment right to free speech. But by ruling on this case, the Supreme Court may also lay a foundation for advocates of reproductive rights to challenge the anti-choice restrictions on abortion providers’ speech in other states.
“When the court is looking at whether the state can make crisis pregnancy center doctors say certain things, the flip side of that issue is can the state make doctors who provide abortions say certain things,” says Andrew Beck, a senior staff attorney with the ACLU’s reproductive freedom project.
At issue is a California law which requires certain crisis pregnancy centers (CPCs) and medical facilities to display notices which inform patients about the availability of contraception and abortion. Additionally, unlicensed medical facilities are mandated to tell patients that they do not have a state license to practice medicine. There are 110 crisis pregnancy centers that filed the case challenging the law, which requires them to display the following information:
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. To determine whether you qualify, contact the county social services office at [insert the telephone number].
Because CPCs are almost always faith-based and their purpose is to counsel women out of having an abortion, they don’t like informing women that they actually have options. Thus, the 110 CPCs in this case have sued in each of California’s district courts so that they don’t have to comply with the law. In each case, the court has ruled that the state does, in fact, have a right to regulate professional speech. Therefore, the law is valid and CPCs must at least acknowledge that abortion is available.
Now the high court will have to wade into the question of whether states can regulate professional speech by medical professionals. This particular case may prove especially challenging for the justices that tend to rule against abortion rights because, depending on the scope of the court’s decision, a win for the crisis pregnancy centers in this case could also provide a legal foundation that’s a win for pro-choice groups who oppose laws requiring speech by abortion providers.
This is by no means a slam dunk for reproductive justice. Pro-choice groups say that they are unsure of what their position will be, depending on the outcome of the case. And with conservative Neil Gorsuch on the Supreme Court, it is very possible that he will rule on the side of anti-abortion which isn’t a full guarantee that pro-choice groups can successfully make a similar argument for free speech later on down the road. But it’s a good thing that so far the courts have decided that CPCs in California can’t just lie to women or deny them information about other resources. Of course, there are no guarantees to make them post this information or make it readily accessible. But a legal requirement and pressure from courts and pro-choice groups is a good start. Women deserve the right to know all their available choices and make private decisions about pregnancy for themselves and their families.