Kennedy's parting can(n)on of ferociously unregulated speech for pro-life pregnancy clinics

OCTOBER 2017 TERM

On June 26, in the case of NIFLA v. Becerra, 2018 DJDAR 6224, the U.S. Supreme Court overturned the state of California's laws forcing "pro-life," largely religious, clinics for pregnant women to advertise state-provided abortion services and to disclose if the clinics were unlicensed. The court's decision is in the shadow of retiring Justice Anthony Kennedy, not just for his epochal retirement, but for his vitriolic concurrence, which essentially calls California totalitarian for forcing the clinics to speak against their will. However, maybe the state is not quite as fascistic as Kennedy implies, and California can attempt to resurrect the unlicensed-disclosure requirement in the future.

Justice Clarence Thomas wrote for the court and (predictably) for the four court conservatives; Justice Stephen Breyer dissented for himself and the three other court liberals.

The National Institute of Family and Life Advocates and other "crisis pregnancy centers" offering alternatives-to-abortion services -- e.g., free goods for pregnant women; ultrasounds -- sued California over the state's Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The "FACT Act": (a) forced licensed clinics to put up notices showing the phone number of a county social services office, in order to let clinic visitors ask if they qualify for public programs including contraception and abortion; (b) forced unlicensed clinics with no licensed medical provider to put up a notice "conspicuously" stating that status, in up to 13 languages, on site and in all advertising materials.

The district court refused plaintiffs-petitioners a preliminary injunction, and the 9th U.S. Circuit Court of Appeals affirmed. Thomas reversed and remanded. He reasoned that the FACT Act was a content-based law, forcing NIFLA et al. to speak a particular message, thus triggering First Amendment strict scrutiny. As for licensed clinics, the 9th Circuit's reasoning that the clinics engaged in "professional speech" and thus were regulable with less-than-strict scrutiny, was unpersuasive, since even professionals have free-speech rights, and cases such as Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio only let the state require the offering of noncontroversial, factual information, and regulate conduct which has a minimal speech component. But to make licensed clinics discuss state (not their own) services, and about the controversial topic of abortion; and to make clinics offer information which was not about informed consent to a medical procedure, violates clinics' rights. Finally, the act is underinclusive since many other types of clinics are free from the requirements; and the State itself could publicly post the information.

Similarly, unlicensed clinics were overly burdened, since, e.g., other speakers (e.g., providers of non-prescription contraceptives) were not covered; the state denied that the reason for the law was that women did not know what kind of clinic they were going to; and notices in 13 languages might drown out the clinics' message. However, the State may gather more evidence, as opposed to mere hypothesis, that the clinics underinform women; and a narrower disclosure requirement might pass muster.

Breyer differed, supporting both the licensed and unlicensed FACT requirements. He worried that Thomas' stringent standards might discourage legitimate regulation, such as the "speech" of hospitals required to tell parents about child seat belts. Breyer also opined that since the Supreme Court's abortion cases allowed laws forcing abortion doctors to make disclosures to patients, e.g., the health risks of abortion, it should be uncontroversial to force the clinics to make disclosures including abortion-access information.

As for Zauderer, the licensed clinics' notices did cover information on similar health care services as what the clinics did, so were not problematic. Breyer noted gaps in the record that petitioners provided regarding viewpoint discrimination (e.g., there was insufficient evidence that exempting certain types of clinics from FACT requirements was meant to punish pro-life clinics' speech), and said that as-applied challenges (e.g., the 13-language requirement) would be more appropriate than facial overturning of the law. (Even Trump's solicitor general submitted an amicus brief supporting the unlicensed requirements.)

Both Thomas and Breyer came up with non sequiturs: Thomas claimed there was only hypothetical evidence about the clinics' underinforming their visitors, but Breyer noted that the California Legislature held a hearing offering evidence about information problems. And when Breyer claimed that abortion doctors' disclosure requirements imply similar requirements for pro-life clinics, that unreasonably sets life (avoiding abortion) and death (abortion) at equal value, and also avoids the reality that the clinics are arguably ideological/religious platforms offering limited medical or quasi-medical services, instead of being full-fledged doctors.

But the real "jalapeño," the heat, in the case comes from Kennedy's concurrence (oddly, not joined by Thomas, only by the other conservatives), where he complains that the state claimed the act was "forward thinking":

"It is forward thinking to begin by reading the First Amendment as ratified in 1791; ... to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech[.] ... Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties."

Wow. Kennedy is partying like it's 1791, so to speak, at the beginning of the Bill of Rights.

If people thought Kennedy pulled an "Oedipus Whimpered" with his resignation, i.e., going out with a whimper instead of a bang, and, like Oedipus, doing the exact things which would later doom him (just as the next Justice might overturn Kennedy's "sexual freedom" opinions): His NIFLA concurrence is a roar, not a whimper. (Wags might note that Kennedy's concurrence in Trump v. Hawaii was much more tepid by comparison, though.)

Ironically, Kennedy's screed against California's "Brave New World" evokes the punk rock band Dead Kennedys' infamous 1979 song, "California Über Alles." The Kennedys -- who hail from Northern California, like Tony Kennedy -- sang, "I will command all of you/Your kids will meditate in school/...California Über alles/...It's the suede denim secret police/They have come for your uncool niece/...You will croak, you little clown/When you mess with President Brown [etc.]"

And 39 years later, we still have the same governor, Jerry Brown (!), doing the same (ostensibly) Orwellian things as in the wild-and-wooly 1970s. This strange pop-music/legalistic coincidence reminds us not only that history repeats itself (the second time as farce, as Karl Marx said), but that even liberals like Brown and Becerra can be seen as totalitarian; you don't have to be ultra-conservative, "alt-right," or Nazi to be dictatorial towards the People, especially dissenters.

But how does California move forward from this point? If our state really believes it is so important for clinic visitors to know that the clinics are unlicensed, then it should try to pass new laws to that effect, laws that would meet Supreme Court muster. (Strangely, Kennedy's frothy concurrence forgot to mention the importance of women's right to know.) California can muster further evidence of informational problems at clinics; reduce the necessity of putting multiple languages in every clinic ad (maybe a tiny URL going to a page with the 13-language warning might suffice?); expand the number of facilities that are affected by the FACT Act; etc. How is it tyrannical to let women know that a facility is unlicensed?

So, both the Legislature, and activist groups or individuals, have work left to do. NIFLA and NARAL (National Abortion Rights Action League) are two warring acronyms who both have good points: one fighting forced speech in favor of abortion they abhor ("abhor-tion"?), and one fighting to keep the clinics honest about their unlicensed status. Kennedy's tenure on the Supreme Court is dead (as of July 31), but the People's right to speech and activism lives on. The ball is now in California's court, and activists' activism, to please the court and strike an acceptable balance between individual rights and public welfare re the FACT Act; stay tuned, and if these issues interest you, stay active.