The Supreme Court will hear oral arguments on National Institute of Family and Life Advocates (NIFLA) v. Becerra on Tuesday. The conflict at the heart of the case is what kind of speech the state can impose on licensed and unlicensed reproductive healthcare clinics, specifically anti-abortion crisis clinics with a record of misleading patients about medical care. But for abortion advocates, and the state of California, the case is about the right to ensure that pregnant people are given clear and honest information about reproductive healthcare and the clinics that claim to offer them.
In 2015, California passed the Reproductive FACT Act, requiring licensed clinics that perform a range of reproductive services—including birth control counseling pregnancy tests, and ultrasounds—to either post or provide information about reproductive care offered by the state, as well as the phone number to county-based social services. In addition, the Reproductive FACT Act requires unlicensed clinics that provide these same services to inform clients that they are unlicensed.
Shortly after California Governor Jerry Brown signed the Reproductive FACT Act, two so-called crisis pregnancy centers (generally faith-based facilities for pregnant women that often claim to offer resources, but generally exist to persuade women against abortion) sought an injunction, arguing that both requirements infringed on their right to free speech. Later, a network of crisis clinics, including National Institute of Family and Life Advocates (NIFLA), an organization with ties to roughly 140 crisis clinics in California, filed a lawsuit arguing that the state of California was violating their First Amendment rights by compelling them to promote abortion.
Primarily at issue are essentially two sentences of the California bill that compels licensed clinics to post a notice that says:
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].
According to the law, the requirement applies to all licensed clinics that primarily provide reproductive healthcare regardless of ideological persuasion. As Priscilla J. Smith, a lecturer at Yale Law School, noted at SCOTUSblog, the requirement “does not discriminate based on the viewpoint of the speaker. It applies equally to licensed pro-choice and licensed pro-life clinics.”
But NIFLA argues that their First Amendment right is being violated because they are forced to share information that is fundamentally opposed to their anti-abortion message—namely, that sharing any information on abortion undermines their mission. In addition, they argue that anti-abortion groups are singled out by the law since they are the only group required to share information that conflicts with their ideological stance. Two lower courts didn’t find NIFLA’s arguments compelling and upheld the California law.
As for the requirement that unlicensed facilities disclose that information to clients, crisis clinics argued that such a disclosure is an excessive burden. According to SCOTUSblog, in previous proceedings, the crisis clinics argued that disclosure made it “difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media” since it effectively required clinics to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.” Meaning, that disclosing that they are unlicensed disrupts one of their usual tactics: posing as a legitimate clinic, rather than a faith-based mission, that offers reproductive healthcare. This interruption, NIFLA argues, violates their First Amendment right.
The disclosure element of the Reproductive FACT Act may very well remain intact; as Josh Orton, legal consultant for NARAL Pro-Choice America noted to Jezebel, the Department of Justice, which filed a friend of the court brief, agreed with the lower courts that requiring disclosure about medical licensing is not unconstitutional. But if the DOJ sided with the lower courts on the issue of disclosure, it sides with crisis clinics on the requirement that anti-abortion clinics share information on reproductive healthcare, arguing that such a requirement violates the First Amendment.
More broadly, NIFLA vs. Becerra is a case about how information and its legislative regulation is brandished in abortion policy. Anti-choice proponents find themselves in what ThinkProgress described as a bit of a “role-reversal.” For decades, abortion physicians and clinics have been required by numerous states to provide information to patients, including information that physicians disagree with and is often medically suspect. In Alabama, for example, providers are required to refer to a fetus as an “unborn child” and list death as a potential side effect of the procedure (it is actually safer than childbirth). In South Dakota, Arizona and Arkansas, abortion providers are required to tell women that they can reverse an abortion even though no serious scientific evidence demonstrates that claim. Another five states, including Kansas, Mississippi, and Texas, require that physicians inform patients about the fictional link between abortion and breast cancer. (Most of these laws are legal under Planned Parenthood vs Casey.)
For abortion advocates, the California law is common sense that attempts to minimize the often false information given by crisis clinics. The law, said Amy Everitt, state director of NARAL Pro-Choice California, is about getting “honest information to pregnant women.” Pro-choice advocates remain unconvinced too by NIFLA’s argument that the law infringes on free speech, suggesting instead that crisis clinics oppose the law because it disrupts their blueprint of growth, one used by the roughly 1,400 clinics in NIFLA’s network.
Crisis clinics, Orton said, want to “keep certain timely information from women” seeking an abortion, “their objection to this law is really about their intent to continue their deceptive practices.” At its heart this case, Orton argued, is about whether or not NIFLA can “exploit the First Amendment to protect these practices.”
NIFLA, however, argues that the case is a sheer First Amendment free speech claim. In a statement, the group said that the California law compels “nonprofit pro-life medical clinics as well as their staff and volunteers [...] to violate their consciences - an outright violation of their First Amendment rights.” But as Dahlia Lithwick argued, this defense could ultimately backfire on anti-abortion groups, potentially making medically unsound state-mandated scripts (usually hostile to abortion) vulnerable to renewed challenges. “A First Amendment rule that prohibits the government from compelling CPCs to post truthful disclosures would surely bar the government from compelling real doctors to spout biased pseudoscience,” Lithwick noted last year.
The court’s ruling is bound to have an effect on how abortion and speech have intersected in states for the last few decades. NARAL estimates that there are roughly 2,000 crisis clinics in the United States, a number that far exceeds abortion providers. Since most are unlicensed, there is no accurate way to count them or even regulate them, giving them carte blanche to mislead pregnant people.
Their unchecked operation has real consequences for how people obtain access to essential healthcare in this country. They’ve proven hard to regulate, a number of cities, including Baltimore, have tried before and largely proven unsuccessful, leaving crisis clinics free to misinform. If NIFLA wins, crisis clinics would be allowed to continuing operating as they always have, without providing basic information on resources for reproductive healthcare.
Given the sizable number of possibilities, it’s hard to guess how the Supreme Court will rule on this case. A decision, however, is expected this summer.