Photo credit: Jarek Tuszynski (CC-By-SA 3.0)
Photo credit: Jarek Tuszynski (CC-By-SA 3.0)

The Supreme Court decided 5 to 4 that the state of California’s law forcing pro-life organizations to advertise taxpayer-funded abortion services was likely unconstitutional.

They reversed the Ninth Circuit Court of Appeals decision in NIFLA v. Becerra that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act was likely constitutional and remanded the case back to the Ninth Circuit for reconsideration.

This law passed by the California Legislature and signed into law by Governor Jerry Brown in 2015 was enacted to regulate crisis pregnancy centers, in particular, pro-life centers, that offer pregnancy-related services.

The FACT Act required clinics that primarily serve pregnant women to provide certain notices. Clinics that were licensed by the state were required to notify women that California provides free or low-cost services, including abortion, and then give them a phone number they can call for more information.

Clinics that are unlicensed were required to notify women that California has not licensed the clinics to provide medical services.

The National Institute of Family and Life Advocates, a network of crisis pregnancy centers in California, sued the state of California in federal court to challenge the law they believe violated their freedom of speech and freedom of expression.

Supreme Court Justice Clarence Thomas wrote the majority opinion and was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elana Kagan dissented.

Compelled speech alters one’s speech.

In his decision, Thomas noted, “The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices ‘alte(r) the content of (their) speech.”

He continued. “By requiring petitioners to inform women how they 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 First Amendment protects “professional speech.”

Thomas noted that the Supreme Court never recognized “professional speech” as a separate category even though different Circuit Court and District Court judges have.

“Speech is not unprotected because it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection,'” Thomas wrote.

“And it has been especially reluctant to ‘exemp(t) a category of speech from the normal prohibition on content-based restrictions,'” he added.

He later added under the idea that “professional speech” could be further regulated all a state would need to do to control specific speech among specific groups or industries is require a license.

All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose ‘invidious discrimination of disfavored subjects.”

California’s required notice was not medically necessary.

Thomas also noted that the state-sanctioned message was not an informed-consent requirement and it was not equally applied.

The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities – such as general practice clinics… are not required to provide the licensed notice. The licensed notice regulates speech as speech.

Thomas also noted when discussing the notice required for unlicensed centers that the state could not justify it.

“California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals,” he wrote.

Performing a medical procedure without a license is already illegal in the state, and the pregnancy centers do not offer medical procedures.

“The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s information interest,” Thomas said.

Content-based regulations suppress speech.

“The dangers associated with content-based regulations of speech,” Thomas noted, “are also present in the context of professional speech. 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,” he wrote.

“Throughout history, governments have ‘manipulat(ed) the content of doctor-patient discourse’ to increase state power and suppress minorities,” he added. “Further, when government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'”

Thomas referenced activity in Communist China during the Cultural Revolution and state-involvement with physicians in Nazi Germany.

Thomas gave an example of how burdensome the law was for unlicensed clinics when they advertised.

An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type of color… This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facilities own message. More likely, the “detail required” by the unlicensed notice “effectively rules out” the possibility of having such a billboard in the first place.

In a concurring opinion, Justice Kennedy, joined by Justices Alito and Gorsuch, wanted to underscore the law’s blatant viewpoint discrimination.

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For 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.

He continues:

Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

California’s FACT Act was meant to suppress a pro-life message, and a majority of the justices recognized this fact. A plurality of those in the majority noted it was blatantly discriminatory which they note is “a matter of serious constitutional concern.”

Read the opinion below:

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