Can California force pro-life crisis pregnancy centers to advertise the state’s free abortion program?
That’s an issue before the Supreme Court in National Institute of Family and Life Advocates v. Becerra, a challenge brought by pro-life centers that provide free services to low-income women who may be facing difficult or unplanned pregnancies. The law also requires centers that provide nonmedical services such as counseling, parenting classes, and baby supplies to include a lengthy message disclosing that they are not licensed medical facilities in their advertisements.
The centers challenging the law argue that it violates their free speech rights. They maintain that forcing them to post a sign advertising the state’s free abortion services hijacks their speech, undermining the very work that they do. The statute is replete with exemptions, but more than 98 percent of the facilities that must post the state’s abortion sign are pro-life centers.
It is also replete with onerous requirements. For example, nonmedical centers wishing to advertise their services must display within their ads a 29-word disclaimer — in up to 13 languages — that is the same size as the text describing the services they do provide. The requirement effectively renders the centers’ ads cost prohibitive.
When the Supreme Court heard oral argument this month, a number of the justices seemed sympathetic to centers’ claims.
Justice Samuel Alito brought up the number of exemptions, wanting to know why for-profit clinics and doctors in private practice do not have to post information about the state’s free abortion services. “If the purpose is to get this information out to poor women … [w]ouldn’t it be beneficial for [women who go to for-profit facilities] to know that they could get treatment at no cost through the state?” Joshua Klein, deputy solicitor general of California, responded that the state wanted the information to be posted in places where it would be most useful, which in the state’s view is at pro-life pregnancy centers.
Justice Sonia Sotomayor asked whether this law was aimed at stopping centers from misleading women. She visited the website for a nonmedical center, which featured a photo of a woman in a nurse’s uniform with an ultrasound machine and mentioned the center follows all HIPAA regulations. Wouldn’t a reasonable person think this was a medical facility? The centers’ lawyer, Michael Farris, explained that state law already made it illegal to practice medicine without a license, and the state could bring fraud charges if a center appeared to be misleading women.
But, as the state’s lawyer explained, the purpose of the law is to educate women about free services, and Justice Neil Gorsuch wanted to know about the state’s other means of disseminating that information. He said, “It’s pretty unusual to force a private speaker to do that for you under the First Amendment.” The state’s lawyer responded, “The legislature is aware of the shortcomings of other methods” — methods which a state court judge in Riverside County detailed in her ruling striking down this very law under the California Constitution. In a ruling last fall, Judge Gloria Trask pointed out that the state could advertise on buses and county health websites, in addition to using the state education system to inform women about the availability of free services.
Justices Anthony Kennedy and Ruth Bader Ginsburg seemed troubled by the advertisement regulations for unlicensed centers. Kennedy asked if a center had a billboard that simply said, “Choose Life,” would they have to include the disclaimer in the same size? He mused, “Because it seems to me … that this is an undue burden in that instance and that should suffice to invalidate the statute.”
Ginsburg noted, “It is one thing just to say: ‘We are not a licensed medical provider.’ But if you have to say that … in 13 different languages, it can be very burdensome.” The attorney for the pregnancy centers explained that this burden was not incidental, but appeared to be the purpose of the law. He said, “Think of a Chevrolet ad where … disclaimers about financing had to be as big or bigger than the word Chevrolet. That is not an effort to inform people. That’s an effort to clutter the ad and drown out the message.”
Now the justices will decide if California’s efforts to override the message of pro-life pregnancy centers can withstand constitutional scrutiny. Based on the oral argument, even liberal members of the court appeared to be concerned about the state’s actions. The court should issue its decision in the case by the end of June.
This piece originally appeared in The Orange County Register