DOJ Backs Effort To Repeal California Law Requiring Pro-Lifers To Promote Abortion

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Kevin Daley Supreme Court correspondent
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The Department of Justice (DOJ) filed an amicus (or “friend-of-the-court”) brief at the Supreme Court Wednesday, urging the justices to overturn a California law requiring pro-life crisis pregnancy centers to post information about state-funded abortions.

The Supreme Court agreed to review the law in November 2017.

The law, called the Reproductive FACT Act, requires crisis pregnancy clinics to post a bulletin informing patients that the state offers subsidized abortion access. The FACT Act requires that the advisory appear in large font in a “conspicuous place” within the clinic.

“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].”

The law also requires unlicensed clinics to post a second disclosure informing clients that they do not have a state license.

Lawmakers say the act “ensures that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.”

A coalition of pro-life clinics challenged the law, which the 9th U.S. Circuit Court of Appeals upheld in 2016.

The department grounds its argument on a different legal rationale than the clinics. The clinics argue the FACT Act should be subject to “strict scrutiny” the most penetrating level of judicial inquiry. The department argues the Court need not use strict scrutiny, as the law fails even more relaxed standards.

“Licensed clinics have a strong interest in refraining from speech that advertises third-party services they find morally repugnant,” the brief says of the first requirement. “California has not substantiated any particularized interest in having licensed clinics themselves disseminate the notice.”

However, the Department argues that the second requirement is lawful, since California may legally require providers to disclose uncontroversial information related to a significant state interest — in this case, licensing medical professionals.

“It merely requires service providers to disclose an accurate, uncontroversial fact about their own services: that they are not provided by a state-licensed medical professional,” the brief reads.

The Trump administration has previously intervened in similar controversies in favor of religious objectors. The DOJ filed a brief supporting a Christian baker seeking a First Amendment exemption to Colorado’s public accommodations law in 2017. That case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was argued in December. A decision is expected by June.

The case, National Institute of Family and Life Advocates v. Becerra, has not yet been scheduled for argument at the high court.

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