High court to hear challenge to state abortion law

The U.S. Supreme Court has decided to determine the constitutionality of a California law that requires pregnancy centers run by groups opposed to abortion to provide information on the availability of the procedure.

The petitioners, several conservative organizations opposed to abortion, have argued the law violates the First Amendment’s free speech and establishment clauses.

California claimed the law is a way to regulate the information crisis pregnancy centers provide to pregnant women. Encouraging the court not to take the case, the state said the Legislature passed the law after “finding that [crisis pregnancy centers] frequently provided women with medically inaccurate information.”

On Monday, the Supreme Court agreed to hear only the free speech challenge to the law. NIFLA et al. v. Becerra, 16-1140.

The 2015 law, known as the Reproductive FACT Act, requires licensed and unlicensed facilities that provide ultrasounds, sonograms, pregnancy testing and pregnancy counseling to provide the abortion information in one of three ways: waiting room posters, printed handout notices, or digital notices made available when a patient first visits the facility. The law is meant to target pregnancy centers that counsel women on alternatives to abortion.

The National Institute of Family and Life Advocates, the lead plaintiff in the suit, is an umbrella organization for crisis pregnancy centers across the nation, and 111 of its centers are in California.

The Supreme Court’s decision will ultimately determine the lengths to which states may require organizations to provide information about services they find objectionable.

Abortion foes fighting the California law posit that it coerces them into providing information to the public with which they have serious moral reservations.

The plaintiff-petitioners are represented by the Alliance Defending Freedom, the organization representing a Colorado baker who has taken his fight over whether he is required to bake wedding cakes for same-sex couples to the Supreme Court.

Kevin H. Theriot, an attorney for the alliance, said the First Amendment protects “freedom from coerced speech.”

“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,” he said in a statement.

Dean Broyles, another attorney representing the petitioners, said in a statement, “The state should never be allowed to coerce anyone to promote abortion. ...”

The California attorney general has framed the case as a battle over access to vital information.

“The Reproductive FACT Act ensures that women in California receive accurate information about their health care options, including whether a facility is a licensed medical provider,” Attorney General Xavier Becerra said in a statement Monday.

In 2016, the 9th U.S. Circuit Court of Appeals affirmed U.S. District Court Judge John A. Houston’s denial of the anti-abortion group’s motion for a preliminary injunction.

Writing for a unanimous panel, Senior Circuit Judge Dorothy Wright Nelson said the law was based on content, but was viewpoint-neutral, saving it from strict scrutiny.

In her opinion, Nelson said the law survived an intermediate scrutiny test because California had an interest in “the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion.”

Nelson explained why the 9th Circuit did not believe the landmark Supreme Court decision Planned Parenthood v. Casey, 505 U.S. 833 (1992) demanded application of the highest level of scrutiny, despite a circuit split on that question.

The law would pass muster under any level of scrutiny as applied to the pregnancy centers, she said.

Attorneys for the centers, which include Chapman University Fowler School of Law professor John C. Eastman, noted the split in their cert petition and argued the 9th Circuit erred in applying the less-rigorous intermediate scrutiny test.

“[T]he State of California now forces licensed centers to communicate the government’s message about state-funded abortions to everyone who walks in the door,” the attorneys wrote.

They argued the law is particularly burdensome for unlicensed centers because it requires them to announce they are not medical facilities to clients in numerous languages. This has the effect of discouraging advertising of their anti-abortion message, they said.

California’s opposition brief stressed its argument that the speech in question is professional in nature and deserves limited protection under existing precedent.