Supreme Court Sides With Clinics That Lie to People Seeking Abortion 

In a major decision issued on Tuesday, the Supreme Court struck down a California law requiring licensed clinics to provide information about the range of reproductive care offered by the state.

In a 5-4 ruling, the Supreme Court struck down California’s FACT Act, a 2015 law requiring licensed clinics—including so-called crisis clinics—to either provide or post information about reproductive care offered by the state, as well as the phone number to county-based social services. Those services included low-cost birth control and abortion services. The bill also required unlicensed clinics to notify clients that they were not licensed by the state to provide medical services.

The law was initially challenged by two crisis clinics that argued that the state had infringed on their right to free speech. Later, a network of crisis clinics, including National Institute of Family and Life Advocates (NIFLA), filed a lawsuit against the state, arguing that California had infringed on their First Amendment rights.

At issue in National Institute of Family and Life Advocates (NIFLA) v. Becerra was the nature of the limits a state can impose on both licensed and unlicensed healthcare clinics. Essentially: What kind of information can the state compel healthcare providers—and those posing as healthcare providers—to provide?

In today’s decision, written by Justice Clarence Thomas, the Supreme Court found that California’s requirement to post notice “likely violates the First Amendment.” The decision drew a line between “speech” and “conduct.” The court drew a line between the speech restrictions that are part of patient consent, like those in Casey, and “professional” speech like that in NIFLA. Thomas wrote:

In Planned Parenthood of Southeastern Pa. v. Casey … for example, the joint opinion rejected a free-speech challenge to an informed-consent law requiring physicians to “give a woman certain information as part of obtaining her consent to an abortion.” But the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.

Thomas also questioned California’s interest in providing resources to low-income women, arguing that the FACT Act, limited as it was on healthcare providers that offer reproductive care, was “wildly underinclusive,” Thomas wrote citing a previous ruling.

Assuming that California’s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it.

[…]

The notice is “wildly underinclusive” […] because it applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding several other types of clinics that also serve low-income women and could educate them about the State’s services. California could also inform the women about its services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaign.

Given this, the court ruled that the California law “unduly burdens protected speech.” Thomas was joined in the majority by Justices Kennedy, Alito, Roberts, and Gorsuch. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. In his concurring opinion to the majority, Kennedy warned of “how relentless authoritarian regimes are in their attempt to stifle free speech,” drawing a parallel to California.

On Twitter, NARAL President Ilyse Hogue called the decision hypocritical, drawing a comparison between laws that force “doctors to lie” and today’s decision. “Make no mistake,” Hogue wrote, “they are setting the stage for a direct hit on Roe v. Wade.”