Civil and Human Rights

The Supreme Court Will Decide Whether California Can Require “Crisis Pregnancy Centers” To Post Information On Abortions

“This law is designed to protect low-income pregnant women who need to make an important, life changing decision in a time-sensitive manner,” Brianne Gorod, chief counsel for the progressive group Constitutional Accountability Center, said during a panel about the case the week before opening arguments. The center filed an amicus, or “friend of the court,” brief in the Supreme Court on behalf of members of Congress who are backing California.

The US Supreme Court will hear arguments Tuesday in the case of anti-abortion “crisis pregnancy centers” suing the state of California over a law requiring them to post information about abortion services.

In 2015, California passed the Reproductive Fact Act, which requires clinics and centers that provide certain services — among them pregnancy tests, ultrasounds, prenatal services, and pregnancy or contraception counseling — to disclose their lack of medical certification if they are unlicensed, and to display information about available abortion services and contraception offered by the state. An advocacy group called National Institute of Family and Life Advocates (NIFLA) sued the state in response, casting the law as a violation of their freedom of speech.

The US Court of Appeals for the 9th Circuit upheld the law as constitutional, saying that California had the right to regulate “professional speech” and had a valid interest in protecting public health access. Despite what NIFLA claimed, the judges said, the signs required by the law do not encourage abortion but provide information about state services.

Now the Supreme Court will consider whether the First Amendment prevents California from requiring these anti-abortion centers to display information about abortion and birth control, and to disclose their licensure status in print and digital advertising.

“This law is designed to protect low-income pregnant women who need to make an important, life changing decision in a time-sensitive manner,” Brianne Gorod, chief counsel for the progressive group Constitutional Accountability Center, said during a panel about the case the week before opening arguments. The center filed an amicus, or “friend of the court,” brief in the Supreme Court on behalf of members of Congress who are backing California.

“What [this law] does not do is regulate how NIFLA and other centers counsel the women who come to them,” Gorod continued. “They can discourage women from getting abortions as vehemently as they want and in whatever manner they want.”

While commercial speech — such as the ingredients listed on labels of commercially sold food items — can be regulated by the government, the regulation of professional speech — the conversations that take place between a professional and their client — has never been directly ruled on by the Supreme Court.

“Crisis pregnancy centers” came into being around the time of the Supreme Court’s 1973 Roe v. Wade decision that legalized abortion across the country. Many of them began in church basements, but soon opened in storefronts resembling abortion clinics, sometimes near or even directly next to the clinics themselves. Many of these centers do not have any overt sign of their religious affiliations. Many have medical licenses, others have ultrasound machines and STI testing equipment, but some are unlicensed and only provide counseling, pregnancy tests, and supplies like baby food and diapers.

Abortion rights advocates and the California legislature argue that these centers attempt to “pose” as abortion clinics in order to “trick” women seeking out abortion clinics. NARAL alleges crisis pregnancy centers are often staffed by “untrained individuals posing as medical professionals” who “frequently deceive women and lie about medical facts to convince them not to have an abortion,” according to a website they set up to prepare for the Supreme Court case.

Proponents of the crisis pregnancy centers deny this and argue there is no known case of a woman actually being deceived. Denise Harle, a lawyer with the conservative religious freedom group Alliance Defending Freedom, which is representing NIFLA, said at the panel that there is “no evidence that even a single woman has ever been deceived by any of these pregnancy centers.”

The justices may be interested in asking California if there are specific examples of this sort of deception. In a similar case in January, the US Court of Appeals for the 4th Circuit ruled against a Baltimore regulation that required crisis pregnancy centers to post signs saying they don’t provide abortion. The 4th Circuit judge cited a lack of examples of any women “who entered the Greater Baltimore Center [for Pregnancy Concerns]’s waiting room under the misimpression that she could obtain an abortion there,” Judge J. Harvie Wilkinson III wrote in the opinion.

Wilkinson also noted, however, that while California’s law applies to both licensed and unlicensed clinics, the Baltimore rule only applied to unlicensed, religiously-associated clinics.

In recent funding moves, the Trump administration’s Department of Health and Human Services made it easier for centers like those represented by NIFLA to apply for federal family planning grants as alternatives to federally funded women’s health clinics like Planned Parenthood.

The Obama administration and many women’s health advocates have argued that these organizations cannot replace medically qualified health centers that provide abortion and contraception. If the Supreme Court rules in NIFLA’s favor it could serve to bolster claims from conservatives that they can. However, if the Supreme Court rules favor of California, this could encourage other states to pass similar laws and potentially contradict the anti-abortion push present in recent Trump administration guidances.

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