US Supreme Court rejects state law requiring abortion disclosure

California's law requiring anti-abortion pregnancy centers to provide information to patients about state-funded access to the procedure likely violates the First Amendment, the U.S. Supreme Court ruled Tuesday.

In a 5-4 decision split along ideological lines, the conservative majority of the court ruled that the Reproductive FACT Act is content-based and that a strict scrutiny review of the law suggests it suffers from unconstitutional infirmities.

Justice Clarence Thomas, who authored the majority opinion, applied the reasoning to the law's mandate that the centers provide information about state-funded abortion options as well as its requirement that unlicensed facilities inform visitors that they are not licensed to provide medical services. National Institute of Family and Life Advocates v. Becerra, 2018 DJDAR 6224 (June 26, 2018).

In his opinion, Thomas said the law "targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech."

Crisis pregnancy centers counsel women on alternatives to abortion and are often affiliated with conservative Christian groups. But groups like the American Medical Association have criticized certain clinics for providing misleading information while posing as medical centers.

California passed the Reproductive FACT Act in 2015 to ensure that the pregnancy centers informed women of state-funded abortion services. The law requires the centers to post information in public spaces on how to find information about abortions.

A number of the crisis pregnancy centers sued the state shortly after the legislation became law, seeking a preliminary injunction. U.S. District Judge John A. Houston denied the request, a decision affirmed by the 9th U.S. Circuit Court of Appeals in 2016.

In an opinion written by Senior Judge Dorothy W. Nelson, the 9th Circuit declined to review the law under strict scrutiny because it regulated "professional speech."

Thomas rejected that reasoning Tuesday, saying the court has never adopted a categorically different standard for professional speech. Rather, he said, the Supreme Court has done so in certain specific instances such as how lawyers advertise to prospective clients.

Justice Stephen Breyer, joined by three of his liberal colleagues, wrote a lengthy dissent from the Tuesday decision, accusing the majority of distorting First Amendment case law and opening the floodgates to a potential raft of lawsuits challenging the constitutionality of other disclosure requirements.

"Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority's approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation," Breyer wrote.

Thomas cited Reed v. Town of Gilbert, 2015 DJDAR 6830 (June 17, 2015), to say that content based laws are presumptively unconstitutional, except for those that require the disclosure of factual, noncontroversial information that pertains to the services a professional provides.

But Breyer said that this approach would call into question the constitutionality of laws requiring hospitals to inform parents about child seatbelts or building owners to place signs indicating the location of stairs.

"[T]he majority's view, if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk, depending on how broadly its exceptions are interpreted," Breyer wrote.

With abortion at the crux of the debate, both the conservative and liberal factions pointed to the Supreme Court's landmark decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) to support their positions.

In 1992, the justices upheld a Pennsylvania requirement that doctors administering abortions inform pregnant women about potential health risks associated with abortion and the availability of information on abortion alternatives.

Thomas wrote that Casey involved a directive given to doctors before they performed an actual medical procedure, making it inapplicable to the case before the court.

"The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct," he wrote.

Breyer said the distinction "lacked moral, practical, and legal force," noting that the decision to carry a child to term also involves certain health risks.

"If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?" he wrote.

Legal observers noted Tuesday that such language could prompt abortion rights advocates to challenge informed consent laws in conservative states. But Thomas' lengthy discussion of Casey suggests the full court would not be interested in such a challenge.

The majority declined to weigh in on whether the law was viewpoint-neutral, despite arguments before the court on the subject. The pregnancy crisis centers had argued that the law wasn't, because it was tailored to apply only to organizations opposed to abortion.

In a concurring opinion, Justice Anthony Kennedy said the decision not to reach the issue was appropriate because the question was not sufficiently addressed in briefing before the court, but expressed concern that the Reproductive FACT Act was not, in his view, neutral to the moral debate surrounding abortion.

"This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression," he said.

Breyer too wrote on that subject, saying that the record was insufficient, but noting that the tailoring of the law could be constitutional if it was established that pregnancy clinics not included under the law do already inform pregnant patients about available abortion services.

Anti-abortion advocates were pleased with the decision Tuesday.

"No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion," Michael Farris, the Washington, D.C.-based attorney who represented the crisis pregnancy centers, said in a prepared statement.

"In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion," he continued. "The Supreme Court said that the government can't do that, and that it must respect pro-life beliefs."

California Attorney General Xavier Becerra described the decision as "unfortunate."

"When it comes to making their health decisions, all California women -- regardless of their economic background or zip code -- deserve access to critical and non-biased information to make their own informed decisions," he said in a statement.