In 2015, the California Legislature enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“Reproductive FACT Act”), which imposed a disclosure requirement on licensed and unlicensed reproductive healthcare clinics.  The Act requires licensed clinics to disclose information about California’s public programs that provide immediate free or low-cost access to comprehensive family planning services, including contraception, pre-natal care, and abortion, and how to access those benefits.  The Act required unlicensed clinics to disclose the fact that they have not been licensed by the state to provide medical services.  The National Institute of Family and Life Advocates (“NIFLA”) challenged the constitutionality of the Act.  The district court upheld the law, and the Ninth Circuit Court of Appeals affirmed.  NIFLA asked the Supreme Court to hear the case, and it agreed to do so.

CAC filed a friend-of-the-court brief on behalf of members of Congress urging the Justices to uphold the California law. In our brief, we explained that disclosure requirements, such as those at issue in this case, serve a substantial governmental interest in enhancing consumer decisionmaking and ensuring that statutory rights are actually enjoyed by the people they are designed to protect.  Indeed, the Supreme Court has repeatedly recognized that disclosure is a less restrictive alternative to curtailing speech.  Every day, because of such disclosure requirements, individuals learn of their federal rights related to issues such as medical privacy, insurance coverage, family leave, and working conditions.  Such content-neutral regulations further First Amendment values, while ensuring that consumers have accurate information about their rights.

The Court, 5-4, held that the Reproductive FACT Act violates the First Amendment. In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, explained that the Court’s “constitutional approach [in striking down the law]” is not consistent with the Court’s First Amendment precedents and “threatens to create serious problems.”  As he further explained, “[u]sing the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech.”