Arguments: Week of March 19, 2018

This week, the Supreme Court will hear oral arguments in three cases, the most high-profile of which involves both free speech and reproductive rights. National Institute of Family and Life Advocates (NIFLA) v. Becerra, to be argued on Tuesday, is a challenge to Caifornnia’s Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act, which passed in 2015. NIFLA is a nonprofit organization that operates pro-life pregnancy centers (also known as crisis pregnancy centers or CPCs) and medical clinics. The FACT Act was passed to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” The law provides that medically “licensed covered facilities” must post a written notice containing both information about California’s public programs that provide immediate free or low-cost access to contraception, prenatal care, and abortion for eligible women and a telephone number to the county social services office. In addition, CPCs that are not licensed medical facilities must post a notice stating that the “facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” NIFLA brought suit on behalf of both licensed and unlicensed covered facilities on the grounds that these disclosures were government-compelled speech and therefore violated their rights under the Free Speech Clause of the First Amendment. (NIFLA also raised free exercise of religion claims, but those are no longer at issue.)  NIFLA moved for a preliminary injunction to keep the law from going into effect in January 2016. The district court denied the motion, and this case stems from the appeal of that decision.

The legal arguments in the case revolve largely around the “level of scrutiny” that should be used in evaluating whether the FACT Act violates the First Amendment. “Strict scrutiny,” which NIFLA is arguing for, imposes the highest burden on the government to show that the law is narrowly tailored to serve a compelling government interest. The Ninth Circuit Court of Appeals, however, affirming the district court, applied “intermediate scrutiny,” which allows more deference to government regulation and often used for commercial speech regulation. The court considered the speech at issue to be “professional speech,” entitled to some but not the highest level of constitutional protection, and it upheld both regulations at issue, although it also held that the requirement imposed on unlicensed facilities would even survive strict scrutiny. (For more on the levels of scrutiny, see here or here.)

Although NIFLA argues briefly that the FACT Act would fail either level of scrutiny, its brief focuses almost exclusively on why strict scrutiny should apply. First, it argues that California is compelling it to speak on a matter central to the CPC’s issue advocacy and points out that the Supreme Court has never recognized “professional speech” as a category of speech entitled to less than the highest protection. Second, because the Act mandates content-based speech regulations, the Court should evaluate the law using strict scrutiny standard of review. Third, NIFLA says that the Act is viewpoint discriminatory in both purpose and actual effect and that the Court has held that regulations that target a particular disfavored viewpoint should be subject to strict scrutiny.

The State of California argues that the disclosures required by the FACT Act are regulations of professional speech entitled to intermediate scrutiny, although they  would pass strict scrutiny level of review if so subjected. First, the Unlicensed Facility Disclosure helps women to secure appropriate services for themselves. A woman who is “unwittingly diverted” to a facility that is ostensibly a clinic for pregnant women but is actually unable to provide services may be subject to significantly increased medical risks and the inability to access some medical services as a result. Further, the State not only has significant interest but has the power to require disclosures that will eliminate potential confusion about the legal or professional status of an entity that provides services to the public. The Licensed Facility Disclosure provides neutral information in a manner consistent with the State’s regulatory abilities in the professional context. Indeed, the Licensed Facility Disclosure provides two sentences of factual information and does not advocate that a woman seek a certain type of care or imply anything about the most appropriate form of care. Finally, because the disclosures required by the FACT Act are tone-neutral and narrowly constructed, they cannot be considered to discriminate on the basis of viewpoint.

Of note, the United States requested, and was granted, leave to participate in oral argument as amicus curiae. In its amicus brief supporting neither party, the United States argues that the First Amendment scrutiny that applies to laws compelling speech depends on the context. Laws that require professionals to make disclosures related to their own services are generally subject to heightened (or intermediate), not strict, scrutiny. However, the United States argues that neither party’s arguments for different standards of scrutiny are persuasive. Next, the United States argued that the Licensed Notice does violate the First Amendment because it is not appropriately tailored and therefore fails the heightened scrutiny requirement. The Unlicensed Notice, however, does survive First Amendment review because it merely requires service providers to disclose an accurate, uncontroversial fact about its own services.

Visit NPR, the LA Times, the Cato Institute, and the National Women’s Law Center discuss to learn more about the FACT Act and this case.

On Monday, the Court will hear oral arguments in an Eighth Circuit case involving the Contracts Clause of the Constitution. In Sveen v. Melin, a couple married in 1997. The husband, Sveen, purchased a life insurance policy the same year and made his wife, Melin, the primary beneficiary. The two divorced in 2007, and Sveen died in 2011—not changing the beneficiary on the policy before he passed.

In 2002, the Minnesota state legislature implemented a change to its probate code, which included a revocation-upon-divorce statue to life insurance beneficiaries. Sveen’s children argued in the federal district court that, by law, Melin no longer could claim rights as the beneficiary of their father’s life insurance policy. Melin argued that the change in law violated the Constitution, which bars states from interfering with contracts. She further argued Minnesota’s desire to regulate these types of contracts was far too intrusive, and the retroactive nature of the law is what violates the Constitution. The court ruled in favor Sveen’s children. The Eighth Circuit reversed and remanded the lower court’s decision on that rationale that since Sveen signed the policy over to his then-wife, enacting the revocation-upon-divorce statute conflicts with his right to enter into a contract of his choosing.

Although contracts cases like this rarely see much national attention, the National Women’s Law Center (NWLC) submitted an amicus brief arguing that states should not automatically take ex-spouses off of life insurance and other joint accounts like IRA’s. The brief focuses in on how some women have fewer resources toward retirement and struggle through economic challenges, which is exacerbated by divorce.

Finally, on Wednesday, the Court will hear arguments in Upper Skagit Indian Tribe v. Lundgren. In 2013, Upper Skagit Indian Tribe bought property in Washington. Roughly two years later, the Lundgrens, a married couple who owned property adjacent to the Tribe’s land, filed a quiet title action alleging ownership of a strip of the Tribe’s land. They asserted that they had acquired this part of the Tribe’s land through adverse possession before the Tribe had bought the land. The trial court granted summary judgment in favor of the Lundgrens; the Tribe appealed to the Washington Supreme Court, which affirmed the trial court’s holding. The issue in Upper Skagit Indian Tribe v. Lundgren is whether, when Congress has not expressly repealed a tribe’s sovereign immunity and the tribe has not waived their immunity, a court’s exercise of in rem jurisdiction overcomes the tribe’s assertion of sovereign immunity.

Issues of sovereign immunity and Indian Tribes have a long history. The Tribe itself in this case relies on Michigan v. Bay Mills Indian Community in support of their position, a Supreme Court case in which tribal sovereign immunity was upheld when the state of Michigan sued Bay Mills for violating state gaming laws when operating their casino. For more information about the Bay Mills case, check out this Harvard Law Review article; to read the Tribe’s  actual brief, click here.

In a brief filed in support of the Tribe, another group of Tribes the Cayga Nation, Seneca Nation of Indians, Saint Regis Mohawk Tribe, Cherokee Nation, and Pueblo of Pjoaque further relied on Idaho v. Coeur v’Alene, in which the Court held that a, Indian Tribe could not bring a suit against state officials in light of the sovereign immunity provided by the Eleventh Amendment, which prevents federal courts from hearing lawsuits against states. To read their brief, click here.

Arguing in support of the Lundgrens, on the other hand, the Public Service Company of New Mexico filed a brief focusing on the consequences of ruling for the Tribe. The utility argued that if sovereign immunity applied here, then public utilities would not be able to file actions to obtain rights-of-way to cross land owned by Indian Tribes. To read the brief, click here.

This post was written by ISCOTUS Fellows Eva Dickey, Michael Halpin, and Zoe Arthurson-McColl, all Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018 and ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.


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