The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided
National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018). At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion. Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:
... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.
The majority then went on to largely reject the 9th Circuit's conclusion that strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:
... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...
This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....
As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”
Turning to the required disclosures for unlicensed centers, the Court said in part:
California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”
A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:
... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.
Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, saying in part:
Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....
If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?
