Politics

Supremes Say California Law Making Pro-Life Groups Promote Abortion Is Probably Unconstitutional

REUTERS/Toya Sarno Jordan

Daily Caller News Foundation logo
Kevin Daley Supreme Court correspondent
Font Size:

The U.S. Supreme Court found Tuesday that a California law requiring pro-life crisis pregnancy centers to provide information about state-funded abortions likely violates the First Amendment.

Tuesday’s decision does not strike down the California law, known as the Reproductive FACT Act. The case reached the Court on a request to temporarily stay the FACT Act, not on the merits.

“In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion,” Michael Farris of the Alliance Defending Freedom, who was lead counsel for the clinics, said in a statement. “The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs.”

There are some 200 pro-life pregnancy centers in California.

Justice Clarence Thomas wrote the court’s opinion, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch. Justice Stephen Breyer led the liberal bloc in dissent.

California’s FACT Act distinguishes between licensed and unlicensed pro-life clinics. State-licensed pregnancy centers are required to post a bulletin informing patients that California offers subsidized abortion access. The FACT Act requires the advisory appear in large font in a “conspicuous place” within the facility. (RELATED: Supreme Court Deals Victory For Trump, Upholds Travel Ban In Full)

“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,” the bulletin reads. “To determine whether you qualify, contact the county social services office at [phone number].”

Unlicensed clinics, on the other hand, must disclose that they are not permitted to practice medicine on site and in all advertising. This disclaimer must be posted in as many as 13 languages and meet specific font requirements.

After the law was enacted, a coalition of pro-life groups led by the National Institutes of Family and Life Advocates (NIFLA) sued the state, claiming the law violates the First Amendment, to the extent it forces them to communicate a government message with which they disagree.

The 9th U.S. Circuit Court of Appeals denied NIFLA’s request for an injunction, citing the so-called professional speech doctrine. Though the Supreme Court has never formally embraced the rule, several appeals courts have concluded that government can legitimately regulate the speech of certain licensed professionals when they are acting in their official capacities.

For example, in 1985 the justices upheld an Ohio regulation requiring attorneys to tell their clients they may be liable for additional fees if they lose their case.

The high court rejected the 9th Circuit’s rationale. Thomas explained that the Court has acknowledged just two categories of professional speech that the state might lawfully regulate, neither of which was relevant to NIFLA’s case.

The Court then concluded that the sole basis on which the FACT Act was adopted failed to pass constitutional muster. The California state legislature enacted the law to ensure low-income women had access to information about state-funded reproductive programs. However, the FACT Act exempts a wide-range of providers from the law’s disclosures obligations, like private practitioners or community health centers, creating the impression the law was tailored to specifically target pro-life groups.

“The FACT Act’s exemption for these clinics, which serve many women who are pregnant or could become pregnant in the future, demonstrates the disconnect between its stated purpose and its actual scope,” Thomas wrote.

He elsewhere suggested the state could achieve its goal by launching a public information campaign rather than burdening private speakers.

The Court said the regulations on unlicensed clinics were even more problematic, finding the state had failed to show why the disclosure requirements were necessary. The opinion leaves open the possibility that California may make this showing at a future phase of the case.

The state said the notices were necessary to ensure women were not duped into patronizing clinics where reproductive healthcare is not available.

Kennedy wrote a brief concurrence joined by the chief justice, Alito, and Gorsuch to emphasize that the state legislature’s “apparent viewpoint discrimination” is seriously troublesome.

“The California legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking,'” Kennedy wrote. “But it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view they find unacceptable.'”

This post has been updated with more information.

Follow Kevin on Twitter

Send tips to kevin@dailycallernewsfoundation.org.

All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.

PREMIUM ARTICLE: Subscribe To Keep Reading

Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign Up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
BENEFITS READERS PASS PATRIOTS FOUNDERS
Daily and Breaking Newsletters
Daily Caller Shows
Ad Free Experience
Exclusive Articles
Custom Newsletters
Editor Daily Rundown
Behind The Scenes Coverage
Award Winning Documentaries
Patriot War Room
Patriot Live Chat
Exclusive Events
Gold Membership Card
Tucker Mug

What does Founders Club include?

Tucker Mug and Membership Card
Founders

Readers,

Instead of sucking up to the political and corporate powers that dominate America, The Daily Caller is fighting for you — our readers. We humbly ask you to consider joining us in this fight.

Now that millions of readers are rejecting the increasingly biased and even corrupt corporate media and joining us daily, there are powerful forces lined up to stop us: the old guard of the news media hopes to marginalize us; the big corporate ad agencies want to deprive us of revenue and put us out of business; senators threaten to have our reporters arrested for asking simple questions; the big tech platforms want to limit our ability to communicate with you; and the political party establishments feel threatened by our independence.

We don't complain -- we can't stand complainers -- but we do call it how we see it. We have a fight on our hands, and it's intense. We need your help to smash through the big tech, big media and big government blockade.

We're the insurgent outsiders for a reason: our deep-dive investigations hold the powerful to account. Our original videos undermine their narratives on a daily basis. Even our insistence on having fun infuriates them -- because we won’t bend the knee to political correctness.

One reason we stand apart is because we are not afraid to say we love America. We love her with every fiber of our being, and we think she's worth saving from today’s craziness.

Help us save her.

A second reason we stand out is the sheer number of honest responsible reporters we have helped train. We have trained so many solid reporters that they now hold prominent positions at publications across the political spectrum. Hear a rare reasonable voice at a place like CNN? There’s a good chance they were trained at Daily Caller. Same goes for the numerous Daily Caller alumni dominating the news coverage at outlets such as Fox News, Newsmax, Daily Wire and many others.

Simply put, America needs solid reporters fighting to tell the truth or we will never have honest elections or a fair system. We are working tirelessly to make that happen and we are making a difference.

Since 2010, The Daily Caller has grown immensely. We're in the halls of Congress. We're in the Oval Office. And we're in up to 20 million homes every single month. That's 20 million Americans like you who are impossible to ignore.

We can overcome the forces lined up against all of us. This is an important mission but we can’t do it unless you — the everyday Americans forgotten by the establishment — have our back.

Please consider becoming a Daily Caller Patriot today, and help us keep doing work that holds politicians, corporations and other leaders accountable. Help us thumb our noses at political correctness. Help us train a new generation of news reporters who will actually tell the truth. And help us remind Americans everywhere that there are millions of us who remain clear-eyed about our country's greatness.

In return for membership, Daily Caller Patriots will be able to read The Daily Caller without any of the ads that we have long used to support our mission. We know the ads drive you crazy. They drive us crazy too. But we need revenue to keep the fight going. If you join us, we will cut out the ads for you and put every Lincoln-headed cent we earn into amplifying our voice, training even more solid reporters, and giving you the ad-free experience and lightning fast website you deserve.

Patriots will also be eligible for Patriots Only content, newsletters, chats and live events with our reporters and editors. It's simple: welcome us into your lives, and we'll welcome you into ours.

We can save America together.

Become a Daily Caller Patriot today.

Signature

Neil Patel