Several justices at the Supreme Court on Tuesday seemed skeptical of the free speech implications of a California law that requires licensed pregnancy centers to inform their clients about the availability of state-subsidized family planning services, including abortion.
Religiously affiliated pregnancy clinics who are opposed to abortion say the law is an unconstitutional violation of their free speech rights and that the government cannot compel them to convey a message that goes against their core convictions.
On the conservative side of the bench, Justice Neil Gorsuch, hearing his first abortion-related case since taking the high court, wondered if the state could find different way to advertise its low-cost services without impinging on the speech of anti-abortion rights clinics.
"Why shouldn't this court take cognizance of the state's other available means to provide messages?" Gorsuch asked. "If it's about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?"
Justice Anthony Kennedy also expressed concern that the law only targets clinics with one particular viewpoint, which would make it much harder to pass the court's muster.
Justice Samuel Alito seemed to agree and pointed out that the California law exempts many clinics that offer abortion.
"It turns out that just about the only clinics that are covered by this are pro-life clinics," he said.
And although the liberals on the bench suggested some support for the intent of the law, some of them also expressed concern. Justice Elena Kagan asked if it might have been rigged in a way that would have targeted pro-life groups. "There's at least a question as to whether this statute has been gerrymandered," she said and added "that's a serious issue."
And Justice Steven Breyer, on a couple of occasions suggested that the court should send the case back down to the lower courts to develop a more robust record. "Don't we need a trial on this?" he said at one point.
Based on oral arguments Tuesday, that might be California's only lifeline to the law staying intact.
The case pits free speech rights against access to abortion and it drew protesters from each side to the Court's plaza. It is one of several First Amendment cases the justices are considering this term. The court has already heard challenges from a Colorado baker who refused to make a cake celebrating a same-sex marriage and a Minnesota man blocked from wearing a tea party shirt to his polling place. How the court rules could also determine the fate of so-called "informed consent" laws, where states direct doctors to tell patients about potential ramifications of an abortion.
In court, a lawyer for California said the law is a neutral regulation aimed at informing women of their health care options, but a lawyer for religiously affiliated pregnancy centers said it forces them to deliver a message that is both detrimental to their cause and in direct conflict with their mission to encourage childbirth.
'Reasonable licensing' or government interference?
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act requires licensed clinics, which provide services like ultrasounds, to disseminate a notice stating that California has programs providing "immediate, free or low-cost access" to comprehensive family planning services.
The religiously affiliated centers lost their challenge to the law before a California-based federal appeals court.
The 9th US Circuit Court of Appeals said the state has a substantial interest in "ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion."
It ruled the California law amounted to "reasonable licensing" by the state.
The clinics, represented by the conservative Alliance Defending Freedom, say the court used too lax a standard when reviewing the law. The Alliance Defending Freedom is the same group behind the Supreme Court challenge brought by the Colorado baker who refused to make a cake for the marriage of a same-sex couple.
Michael P. Farris, the group's attorney, told the justices Tuesday that the government can't force the clinics to deliver a message that goes against their core convictions. They say the law discriminates based on their anti-abortion viewpoint.
"California took aim at pro-life pregnancy centers by compelling licensed centers to point the way to an abortion," Farris said.
The law also requires unlicensed clinics -- those that provide resources such as vitamins and diapers but have no medical providers on site -- to disseminate a notice that they are not licensed by the state. Violators are liable for a civil penalty of up to $500.
On the other side, Joshua A. Klein, California's deputy solicitor general, argued that about 700,000 women in the state become pregnant each year and about half of the pregnancies are unintended. The law, Klein argued, shouldn't trigger heightened scrutiny from the courts because it doesn't require anyone to refer a client for an abortion but simply ensures that women will have the information they need when they are confronted with their pregnancy.
The law "is targeted at women who seek free care for pregnancy, not any particular viewpoint," he said."
"The First Amendment does not bar states," from such a "carefully neutral" notice, Klein added.
Supporters of the law -- including groups such as the Center for Reproductive Rights, NARAL and Planned Parenthood -- say it was necessary because some clinics tried to disguise the fact that they oppose abortion.
"The clinics were masquerading as full service reproductive health clinics and deceiving women into thinking they could get bona fide reproductive health care," said Amy Myrick, a staff attorney at the Center for Reproductive Rights. "In fact, the clinics don't make abortions and contraceptive coverage available."
The Trump administration has taken a middle ground in the case. Deputy Solicitor General Jeffrey B. Wall told the justices that the law , as applied to the licensed centers, violates the First Amendment and the state has "multiple alternative" ways to pursue its objectives -- including advertising its services itself.
But he argued that the justices can uphold the provision aimed at unlicensed centers because they constitute a requirement to simply provide "accurate, uncontroversial" facts about their services.
Impact on 'informed consent' laws
How the court rules could impact other laws across the country. Supporters of abortion access say that if the court strikes down the California law, there could be a silver lining to the loss.
They believe such a ruling could negatively impact a different type of regulation, "informed consent laws." They are opposed by supporters of abortion rights, who feel the laws are misleading and are meant to deliver information about potential dangers of the procedures in an effort to dissuade women from electing to go through with an abortion.
"Several states have laws on books that require providers to give women misleading or untruthful information about discredited links between breast cancer and abortion or mental health harms and abortion," said Myrick. "If the Court strikes down the California law as a free speech violation those laws should clearly be found to be unconstitutional."
A decision is expected by July.
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