How far can a state go to promote its view on abortion? Not as far as California, the Supreme Court ruled this week in National Institute of Family and Life Advocates v. Becerra.
In an opinion written by Justice Clarence Thomas, the court held that California’s law requiring pro-life pregnancy centers to advertise the state’s free or low-cost abortions likely violates the First Amendment of the U.S. Constitution. The court also ruled that another part of the same law placing onerous disclaimer requirements on unlicensed centers’ own ads “unduly burdens protected speech.”
The court is sending the case back to the lower court to reevaluate the centers’ claims under the correct standard.
Two regulations were at issue in this case. The first mandates that licensed medical facilities post information in their facilities about the state’s abortion services, and the other requires unlicensed facilities that provide counseling, education, free clothes and baby supplies to include a lengthy message disclosing that they are not licensed medical facilities in their advertisements. The court found both of these regulations troubling under the First Amendment.
California is certainly entitled to express its view on abortion. But the Supreme Court explained that the state ran afoul of the First Amendment’s free-speech guarantee by forcing centers to advertise “the very practice [they] are devoted to opposing” thereby contradicting their own speech. This law is “presumptively unconstitutional,” the court noted, unless California can prove it is “narrowly tailored to serve compelling state interests.”
The state knows it can’t meet that high standard, so it argued that the court should apply a deferential standard of review to its law. The court rejected California’s plea that it carve out from First Amendment protection a category called “professional speech.” The court forcefully explained that speech is “not unprotected merely because it is uttered by ‘professionals’” (such as “doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others”) and runs the “inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas.”
The court also declined to treat California’s law as a regulation of “commercial speech,” which merely requires businesses to disclose factual, noncontroversial information about their services. As the court pointed out, the state’s requirement “in no way relates to the services that licensed clinics provide” and involves abortion, which is “anything but an ‘uncontroversial’ topic.”
The other part of the law, which ordered unlicensed centers to include a 29-word disclaimer in up to 13 languages and the same size as the text of the actual ad, didn’t fare much better. The court found this provision is unjustified and overly burdensome, concluding that it “drowns out the facility’s own message,” “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” The only justification California put forward for this requirement was to ensure women know whether they are seeing a licensed medical professional. But as the court pointed out, California denied at the oral argument this spring that women “go into [these facilities] and they don’t realize what they are.”
Now the case returns to the lower court, which will have to evaluate the centers’ challenge under the high standard for free-speech claims. This case has implications far beyond the debate over abortion, and the court made clear that so-called “professional” speech is simply that – speech – and it must be accorded the same level of respect granted to other protected activities.
This piece originally appeared in the Orange County Register