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

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Kevin Daley Supreme Court correspondent
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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.

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