After NIFLA, we need a principle for disclosure laws

OCTOBER 2017 TERM

The U.S. Supreme Court's decision in National Institute of Family and Life Advocates v. Becerra, 2018 DJDAR 6224 (June 26, 2018), opens the door to challenges to countless laws that require disclosure of accurate information to patients, consumers and others. The ruling invalidates a law that sought to ensure that pregnant women in the state received important information about their options. It is a decision hard to understand except as a reflection of the conservative justices' hostility to abortion rights.

The case involved a California statute, the Reproductive FACT Act, which was meant to deal with the problem of over 200 crisis pregnancy centers in the state that are affiliated with religion and which hinder the ability of California women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that Crisis Pregnancy Centers "pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions" in order to fulfill their goal of "interfer[ing] with women's ability to be fully informed and exercise their reproductive rights." The Legislature found that Crisis Pregnancy Centers, which include unlicensed and licensed clinics, employ "intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care."

The context for this law matters. The preamble of the FACT Act explains that it purpose is to ensure that "[a]ll California women, regardless of income, ... have access to reproductive health services." The preamble states that more than 700,000 California women become pregnant each year and that one-half of these pregnancies are unintended. The Crisis Pregnancy Centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have falsely told pregnant women that their chances of getting breast cancer increase after an abortion. They have also inaccurately warned clients that abortions are high-risk procedures that could well result in infection and death.

The statute does nothing other than require that facilities post a notice to provide accurate information to patients. The law says that licensed healthcare facilities must post or distribute a notice that states, "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]." An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.

There is no requirement that these facilities provide contraception information or abortion referrals. The law is just to make sure that women know the services that the state of California makes available and whether the facility is unlicensed.

Nonetheless, in a 5-4 decision, split along ideological lines, the Supreme Court reversed the 9th U.S. Circuit Court of Appeals and held that preliminary injunction should have been granted on the ground that the law likely violates the First Amendment. Justice Clarence Thomas wrote the opinion for the Court, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch.

The court said that the California law was compelled speech in violation of the First Amendment. Thomas stressed that the law regulated the content of speech, mandating specific disclosures. The 9th Circuit had stressed that professionals, such as doctors, often have to make disclosures to patients. But the Supreme Court said that there are no special rules under the First Amendment giving the government more latitude to regulate professional speech. The court concluded that the First Amendment was violated even by requiring that unlicensed facilities disclose that to their patients.

The decision is troubling on many levels. The court gave great weight to minimal burden on the facilities in having to post a notice on their walls, but gave little weight to the state's important interest in making sure that women are provided accurate information. In terms of freedom of speech, the court simply favored the right of the clinics to not speak over the right of women to receive important information.

The court's conclusion is inconsistent with the many areas where health care professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. In fact, in the abortion context, the Supreme Court previously has upheld laws that require that women be provided accurate information concerning the fetus. These were laws meant to discourage abortion. In that context, the Supreme Court was untroubled about compelling the speech of health professionals.

The greatest effect of the decision is going to be outside the abortion context. Businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. All of these seem vulnerable to challenge because all are content-based and all are compelling speech. As Justice Stephen Breyer pointed out in dissent, the majority opinion offers no limiting principle as to why these laws don't run afoul of the same First Amendment principles as California's FACT Act.

The Supreme Court now will need to figure out a principle for which disclosure laws are unconstitutional compelled speech and which are permissible. After reading Justice Thomas' majority opinion in NIFLA v. Becerra, my sense is that it may be little more than that disclosure laws the majority doesn't like violate the First Amendment.