Politics

High Court to Say if Pregnancy Centers Can Be Forced to Advertise Abortions

California says 'yes,' passed law targeting anti-abortion advocates — SCOTUS hears potential landmark First Amendment case Tuesday

An anti-abortion pregnancy crisis center in 2016 ran afoul of a then-new California law that requires such nonprofit organizations to tell women that they are eligible for free or low-cost “family planning” resources, including birth control and abortions.

The statement that Pregnancy Care Clinic must provide to anyone who walks through the door also must include the phone number of a county social services office where California residents can get these services.

The clinic and the National Institute of Family and Life Advocates challenged the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, arguing that the requirement amounts to unconstitutional forced speech in violation of the First Amendment.

The state and a host of abortion rights groups counter that the law — which applies to licensed clinics that offer medical services such as ultrasounds — is aimed at preventing confusion that they say pregnancy crisis centers often sow.

The Supreme Court, which will decide the issue, will hear arguments on Tuesday. It is one of a number of closely watched First Amendment cases the justices will decide this term.

Although the San Francisco-based 9th U.S. Circuit Court of Appeals upheld the law, legal experts predict the state would have a harder time before the Supreme Court, which in recent years has taken an expansive view of free speech.

“So I think the plaintiffs have good reason to be optimistic that it might even be more than 5-4.”

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“That is a very tough argument for the government to prevail on,” Villanova University law professor Michael Moreland told reporters on a conference call organized Thursday by the Federalist Society. “So I think the plaintiffs have, I think, good reason to be optimistic that it might even be more than 5-4.”

Elizabeth Slattery, the appellate advocacy program manager at the conservative-leaning Heritage Foundation, agreed the plaintiffs have a strong case. But she suggested a closely divided court seems likely.

“Tempers run high when abortion is on the table,” she told LifeZette.

The state of California argues that the law is a reasonable goal of ensuring that women are armed with the information they need to make better decisions.

“When she is offered assistance by a facility that provides pregnancy-related services of a type the public may associate with medical clinics, she needs to know whether the entity she is dealing with is in fact a state-licensed clinic staffed with regulated professionals,” the state maintained in written arguments to the high court.

The plaintiffs alternately argue that the disclosure requirements amount to content-based restrictions on their First Amendment rights or viewpoint discrimination.

To bolster the argument that legislators were targeting pregnancy crisis centers based on their pro-life views, the plaintiffs point to legislative committee reports quoting the law’s author as saying that “Unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California,” and those facilities “aim to discourage and prevent women from seeking abortions.”

Moreland, who teaches bioethics and law and religion, said the more important question may be what standard the court adopts to evaluate the law.

“Whatever road you take to the conclusion here, the conclusion that they want to draw, that the centers want to draw here, is that this kind of restriction should be subject to strict scrutiny, which is the highest form of constitutional scrutiny,” he said.

That standard requires government to point to a “compelling interest” before it can infringe on speech rights and to show that the law is narrowly tailored to satisfy that interest.

Slattery said California has a high burden in defending the constitutionality of a mandate that pregnancy crisis centers engage in speech that “cuts against the very core of their mission … It [the state] certainly can’t require them to advertise that position.”

Related: City Sidewalks May Be Next Legal Battleground for Pro-Life Advocates

Slattery said abortion supporters might want to consider the ramifications if they win the case. Such a precedent might prompt anti-abortion lawmakers in other states to pass laws requiring Planned Parenthood clinics to post messages like “Choose Life,” and “You’re not alone,” along with phone numbers for adoption agencies.

Moreland said California has a better chance to preserve another section of the law that applies to unlicensed pregnancy centers that offer counseling and baby supplies but no medical services. Those facilities have to disclose that they are not medical facilities.

But Slattery said the 29-word disclaimer — which must appear in the same font and type size as other words in any advertisement those organizations run — can be onerous and is unnecessary.

“It’s not as though [women are] being tricked and thinking they’re going to a doctor’s office,” she said.

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.

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