Free speech and reproductive rights were at issue when the Court heard oral arguments in the highly anticipated case National Institute of Family and Life Advocates (NIFLA) v. Becerra on Tuesday, March 20. As described here, his case concerns whether the First Amendment allows the State of California, via the Reproductive FACT Act, to require pro-life Crisis Pregnancy Centers (CPCs) to make certain disclosures to clients. CPCs that are licensed facilities – providing medical services such as ultrasounds and pregnancy tests – are required to post a notice that contains information about California’s public programs for free or low-cost contraception, prenatal care, and abortion and a phone number to the county social services office. Unlicensed facilities, which do not provide medical services, are required to post a notice that the clinic is not licensed as a medical facility by the State of California, and that the clinic has no licensed medical provider to provide or directly supervise the provision of services.

NIFLA;s argued that California “took aim” at pro-life pregnancy centers when it enacted this law by compelling speech from disfavored speakers with disfavored viewpoints. When pressed by Justice Ginsburg about whether or not these disclosures are in the same vein as the required disclosures to women obtaining abortions upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey, NIFLA’s attorney, Michael Farris, argued that the disclosures required by Casey were part of an informed consent regime. Because informed consent can only occur prior to a medical intervention (and neither an ultrasound nor a pregnancy test should be considered a medical intervention) California’s disclosures are not similar to those of Casey. NIFLA further argued that the statute’s exemptions – for private doctors and clinics that are part of California’s family PACT program – mean that as a practical matter only pro-life non-profits actually have to provide the notices, which makes the statute unconstitutional. Farris suggested, however, that even if the statute imposed the same disclosure requirements on all centers that provided information and/or services to pregnant women, it would still be unconstitutional as applied to “pro-life doctors.”

The United States, participating in oral argument as amicus curiae and represented by Jeffrey Wall, argued that the State of California can rightly require disclosure of factual, truthful information about goods or services.. However, California cannot require a business to make disclosures about the services that they do not provide without a showing by the state that it has a justified interest in doing so. As a disclosure gets further away from an affirmative statement of services provided, it triggers heightened scrutiny under the First Amendment. Justice Alito questioned Wall regarding the United States’ argument in its amicus brief that the Court should recognize a new category of speech, called professional speech, restrictions of which would be subject to a lesser standard of scrutiny than much other speech. Wall argued that commercial speech – which is already subject to that lesser standard – and professional speech often overlap.

Joshua A. Klein argued for California that the FACT Act was enacted to ensure that women who were in need of free or low-cost pregnancy services are made aware of all of the alternatives available to them. Justice Kagan quickly pressed Klein on whether or not the Act was “gerrymandered” against pro-life clinics. Klein argued that the Act was designed to ensure that low-income women have full information about their pregnancy-related medical options, and it was not designed to target one particular type of facility. As the argument went on, Klein fielded questions from a number of justices about this claim. Finally, in response to a question from Justice Ginsburg, Klein argued that bringing charges against individual clinics for false and misleading advertising would not be a superior approach as it would be more speech-intrusive and burdensome than a simple two-sentence disclosure.

Check out The Wall Street Journal,  SCOTUSblog, and The New York Times for more commentary on this case.  Dahlia Lithwick’s podcast, Amicus, also featured a discussion of the case. For a transcript of this oral argument, click here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.