WASHINGTON—Following oral argument in NIFLA v. Becerra—a First Amendment free speech challenge to California’s FACT Act, which requires licensed and unlicensed reproductive health centers to disclose factual information to ensure that people can obtain the health care they need—Constitutional Accountability Center attorneys, who were at the Court this morning, issued the following reaction:

CAC Civil Rights Director David Gans said, “NIFLA’s attorney concluded his argument urging the Justices not to permit states to ‘politicize medicine.’ If the Justices agree, they could open up an avenue to strike down laws like the Act challenged here, as well as state anti-abortion laws.”

“During this morning’s argument,” Gans added, “the Justices spent a lot of time discussing whether there are any meaningful differences between the challenged law and those targeting abortion providers. Despite efforts to suggest that states have broader authority to target abortion providers, none of the Justices or advocates offered any convincing basis for doing so. Everyone seemed to agree with Justice Breyer that ‘what’s sauce for the goose is sauce for the gander.’”

CAC Chief Counsel Brianne Gorod continued, “As many of the Justices noted this morning, the Court has upheld neutral, factual disclosure requirements in Planned Parenthood v. Casey and other cases. Indeed, disclosure requirements are pervasive in the law. These rules ensure that rights guaranteed by our elected representatives are actually enjoyed by the people they are designed to protect. There is no basis for facially invalidating the disclosure requirements in this California law, especially given the absence of a detailed factual record below.”

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Resources:

CAC brief on behalf of 101 Members of Congress in NIFLA v. Becerra: https://www.theusconstitution.org/wp-content/uploads/2018/02/NIFLA-v.-Becerra-Amicus-Brief-FINAL.pdf

Brianne Gorod on Newseum panel discussing NIFLA v. Becerra, broadcast on C-SPAN, March 16, 2018: https://www.c-span.org/video/?442670-1/alliance-defending-freedom-previews-upcoming-supreme-court-case

“NIFLA v. Becerra: The Conservative Attack on Disclosure,” David Gans, Take Care, March 15, 2018: https://takecareblog.com/blog/nifla-v-becerra-the-conservative-attack-on-disclosure

“The First Amendment Case That Could Upend Abortion Law,” The Intercept (Rachel M. Cohen), November 27, 2017: https://theintercept.com/2017/11/27/the-first-amendment-case-that-could-upend-abortion-law/

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Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org

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