Friday, July 20, 2018

Supreme Court strikes down California abortion rights speech requirement

Overlooked in the shuffle of the more high-profile cases that came down at the end of the last Supreme Court term was a free speech case involving the rights of an anti-abortion pregnancy center that objected to a California law that required it to let clients know about abortion services. The Court rules in favor of the pregnancy center.

The case is National Institute of Family and Life Advocates v. Becerra, decided on June 26. The Supreme Court over the last decade or so has taken a pro-plaintiff position on free speech issues (with limited exceptions). One area that surfaces is the coerced-speech theory, that holds the government cannot force you to say something you don't agree with. That arises here. The clinics at issue in this case offer pregnancy-related services. These centers "aim to discourage and prevent women from seeking abortions." However, under California law, these clinics must advise patients that "California has public programs that provide immediate free or low-cost access to comprehensive family planning services . . . , prenatal care, and abortion for eligible women." Licensed facilities must provide patients with that information. Unlicensed facilities must tell patients that the facility is not licensed as a medical facility "and has no licensed medical provider who provides or directly supervises the provision of services."

As for the licensed-facility speech requirement, the 5-4 conservative majority says the notice "is a content-based regulation of speech" because the clinics have to convey a message with which they disagree: the availability of abortion services, "at the same time [the clinics] try to dissuade women from choosing that option." In reaching this holding, the Court notes that the lower courts had upheld this speech requirement under the "professional speech" doctrine, which grants the government some leeway in regulating how professionals must communicate with their customers and patients. But the Court says it has never recognized such a legal principle. For now, it looks like the "professional speech" doctrine no longer exists.

As for the speech requirement imposed on unlicensed pregnancy centers, that also fails under the First Amendment. The reason for this is that "California has not demonstrated any justification for the unlicensed notice that is more than 'purely hypothetical.'" The state "points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals."

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