On Tuesday, the Supreme Court heard arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra, the first big reproductive rights case under President Trump. The case—involving the state’s ability to impose disclosure and notification requirements on so-called “crisis pregnancy centers”—has major implications for not only reproductive rights, but the right’s quest to weaponize the First Amendment.
NIFLA stands for a network of Christian crisis pregnancy centers, facilities that typically prey on women seeking information about reproductive health or medical procedures, like abortion. Their aim isn’t education or information: It’s to get women in the door, then convince them to complete their pregnancies by whatever means necessary.
In California, these centers register as family planning facilities but do not have licensed medical providers or offer medical services. Many provide misleading or incomplete medical information. That’s why the state passed a law requiring family planning facilities to post notices about the availability of free and low-cost birth control as well as abortion services and mandating that facilities without a medical provider on staff disclose that fact.
NIFLA and company claim the law violates their First Amendment right to free speech by compelling speech. California Deputy Solicitor Gen. Joshua Klein argued for the law’s constitutionality, emphasizing, as several justices would, how similar California’s requirement is to the types of mandates red states have imposed on physicians and clinics that provide abortions. Regrettably, it also differs in several ways that open it to legal attack.
Concerning as the current composition of the Court is with respect to the First Amendment in particular, NIFLA’s attorney, Michael Farris, floundered on Tuesday. (Unfortunately, so did Klein.)
Justice Ruth Bader Ginsburg opened by asking Farris a somewhat unfriendly hypothetical.
JUSTICE GINSBURG: What would be the situation, taking the other side, if the state law were that all women's health providers that perform abortions would have to tell the patients, if you would like to carry the pregnancy to term, you will have access to a clinic that will assist them, provide adoption facilities they might contact, or provide instruction on how to care for infants? Suppose that were the statute. Would that be unconstitutional?
Farris leaped to distinguish licensed and unlicensed centers. Why? It’s okay to make a licensed center that performs medical procedures provide certain information about medical options in the name of informed consent, he argued, but you can’t justify imposing the same duty on unlicensed facilities on that basis since they’re not providing medical services.
Justice Kagan picked Farris’s informed consent argument apart rather succinctly.
JUSTICE KAGAN: Mr. -- Mr. Farris, can I ask -- you've been pinning a lot when you've tried to distinguish ... on the idea of informed consent. And certainly some of the [disclosure] requirements [previously upheld by the Supreme Court] ... are informed consent in the way we would understand that, talking about the risks of various procedures, all the things that we want doctors to talk about when we go to them and seek medical care. But there were definitely requirements … that don't have much to do with informed consent, as I've ever understood it. You know, the -- the -- the doctor having to inform patients about -- that medical assistance benefits may be available for childbirth in neonatal care, inform women that the father would be liable to pay child support. So those kinds of requirements, they -- they just don't seem to have much to do about informed consent. ... [T]hey're really the exact flip side of the requirements in this case. So how am I supposed to think about that?
Farris’s emphasis on licensed versus unlicensed facilities also fell flat for Justice Sotomayor, who cut him down by walking through the aspects of an unlicensed center’s website that suggest it’s a medical provider.
JUSTICE SOTOMAYOR: I looked at one -- a few of them. An exemplary of this is the Fallbrook Pregnancy Resource Center website. And it's -- I'm fairly sophisticated -- there is a woman on the home page with a uniform that looks like a nurse's uniform in front of an ultrasound machine. It shows an exam room. The text of the page titled "Abortion" says Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures. The website also says clients will be evaluated by nurses and that they follow all HIPAA regulations, which if they're not a medical provider, they don't have to follow HIPAA. If a reasonable person could look at this website and think that you're giving medical advice, would the unlicensed notice be wrong?
Bad news is, Justice Anthony Kennedy, the swing vote in cases like these, appeared at least intellectually receptive to Farris’s argument.
JUSTICE KENNEDY: What would happen if an unlicensed entity, unlicensed center, just had a billboard that said "Choose Life." Would they have to make the disclosure?
MR. FARRIS: Yes, Your Honor.
JUSTICE KENNEDY: All right. So they'd have to make a 20-line -- or 20-word - how many words in it? I forget.
MR. FARRIS: Right. And it would be 29 words.
JUSTICE KENNEDY: 29 words.
MR. FARRIS: In -- in the same size font -
JUSTICE KENNEDY: In the same size as "Choose Life."
MR. FARRIS: And in a number of languages, whatever is required by that county.
JUSTICE KENNEDY: It's -- we can ask -- we can ask the State of California. Will the State of California disagree with that, do you think? I mean, you don't know?
MR. FARRIS: I -- I don't think they'll disagree with that.
JUSTICE KENNEDY: Because it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute.
MR. FARRIS: Yes, Your Honor, that's our position.
California’s combatant, Klein, faced an even tougher set of questions. Justice Sotomayor and others returned to the question raised by Kennedy surrounding how burdensome the requirement would be, asking Klein to clarify what triggers the law’s notice requirement when it comes to advertising. (The requirement, by the way, when it comes to ads, is that the disclaimer “font must be larger than the main body of the ad or the same size as the main body of the ad with special fonts and colors.”)
Justices Ginsburg and Gorsuch each prodded Klein to explain why the state wouldn’t choose to use anti-fraud laws to prosecute centers producing misleading advertising. In sum: Why dive into the tricky business of regulating speech?
Justices Kagan and Alito pressed Klein on the law’s extensive exemptions. The concern, of course, is that it’s unconstitutional to openly target certain groups, and no more constitutional to do so covertly by gerrymandering a law to include so many exemptions only a certain group is left. In this case, NIFLA argues, anti-choice and religious facilities have been narrowly targeted as “disfavored speakers with disfavored viewpoints,” a big no-no when it comes to regulating speech.
Klein’s answer to the gerrymandering argument is, in essence, that the law targets women seeking health care, not facilities, but that doesn’t answer Kagan and Alito’s concerns (nor mine, really). When Kagan pressed Klein to explain why he thinks the statute arose as a means of helping low-income women rather than cracking down on crisis pregnancy centers, the exchange got muddled. Klein didn’t have a smooth answer, nor did he have great answers for Justice Alito’s requests for him to explain specific exemptions—why exempt individual doctors? Clinics with a primary purpose other than pregnancy care?
It’s hard to imagine the arguments being so rocky had California’s law been crafted slightly differently. Which is to say, if it had been clearer, and perhaps a bit narrower, on what triggers the disclosure requirement with respect to advertising—and if it cut down on the exemptions. The right would still have challenged it, of course, but Klein would have had a stronger case. Now’s not the time to be losing ground on the First Amendment.
The crisis pregnancy center case is a critical component of the right’s multi-front strategy to weaponize the First Amendment.
The case is one of several the Supreme Court is tackling during its current term in which conservative legal groups are invoking the First Amendment and asserting that governments are unconstitutionally compelling people to say or do things they oppose.
Similar cases this term involve plaintiffs who argue that the First Amendment protects them from having to make a wedding cake for a gay couple or pay fees to unions representing public employees to fund collective bargaining.
These cases may have a sympathetic audience on a court with a 5-4 conservative majority that already has been receptive to First Amendment arguments.
Of course, the involvement of the nefarious Alliance Defending Freedom, architect of the right’s quest to pervert the concept of religious liberty to license discrimination, is always a big hint that a case is part of a larger Republican legal strategy.
“Information about abortion is just about everywhere, so the government doesn’t need to punish pro-life centers for declining to advertise for the very act they can’t promote,” said Kevin Theriot, senior counsel for the Alliance Defending Freedom, which is representing the [crisis pregnancy centers].
What’s the end game for conservatives?
If the court strengthens protections against compelled speech, that could benefit conservative causes including limiting the reach of its 2015 decision legalizing gay marriage or freeing corporations from certain regulations.