Supreme Court justices on Tuesday appeared skeptical of a California law requiring licensed anti-abortion clinics to post notices telling women that state-funded abortions are available in a case that pits abortion access against free speech rights.
Anti-abortion clinics argue they are being unfairly targeted for their views and forced to advocate for a procedure they morally oppose under California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency, or FACT, Act. The notices required by the legislation must include a number to contact the state for more information on abortions.
Chief Justice John Roberts wanted to know if the state could require an adoption services organization to post the same notice if it advertises adoption as an alternative to abortion.
“Could the state make them include the disclosure requirement that you have with respect to licensed facilities because that’s an alternative to pregnancy?” he asked.
The law also requires unlicensed facilities to post disclaimers on site and in print and digital ads stating that they are not licensed medical providers. Those disclaimers must be posted both in English and in the county’s primary languages.
Justice Anthony Kennedy asked if an unlicensed or licensed center would have to include the disclaimer on a billboard that says “Choose Life” under that requirement.
{mosads}Michael Farris, who argued on behalf of the National Institute of Family and Life Advocates challenging the law, said they would and explained it would add 29 words in the same size font.
“It seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute,” Kennedy said.
The Department of Justice, which intervened in the case, argued the requirements for the unlicensed centers should be subject to a lower standard of judicial review than the requirements for licensed centers, since the state is regulating the speech of a professional that’s related to their own services.
But Justice Samuel Alito struggled with how to define the boundaries of professional speech.
He asked if the speech of journalists, economists, climate scientists and even fortune tellers would be subject to the same standard of review.
“I mean, wouldn’t we be getting into dangerous territory if we do this?” he asked.
Justices on both sides of the ideological spectrum also struggled with the state’s reasoning for providing exemptions for other medical professionals who serve pregnant women.
Justice Elena Kagan said the law appears to have been drafted to specifically target anti-abortion centers.
“If it has been gerrymandered, that’s a serious issue,” she said.
“It’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”
California’s deputy attorney general, Joshua Klein, said the law targeted free clinics specifically to reach women who need low-cost care, but aren’t aware of the state-funded health-care programs.
“It empowers the woman by explaining that her financial circumstance does not make her unable to access alternative and supplemental care, including full prenatal and delivery care that Petitioners do not themselves supply,” he said.
“And it gives her that knowledge in time to be useful, because pregnancy and medical care is extraordinarily time-critical.”
It was an argument Justice Neil Gorsuch had a hard time swallowing.
“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?” he asked.
But Justice Stephen Breyer seemed to come to the law’s defense.
“In law, as you well know, what is sauce for the goose is sauce for the gander,” he said.
“So, if a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion? See?”
It was a dreary day in D.C., but the wind and rain didn’t stop protesters on both sides of the issue from rallying in front of the court.