WASHINGTON, D.C. – The Supreme Court on Tuesday blocked a California law requiring pro-life pregnancy centers to post information on programs to obtain a free or low-cost abortion.
The 5-4 ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra sent the case back to a lower court to be reconsidered, in light of the Supreme Court’s finding that “We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment.”
Lower courts had rejected a petition to temporarily block the California law while it was being legally challenged. The Ninth Circuit Court of Appeals ruled that the case against the law was unlikely to succeed on its merits.
The Supreme Court reversed that ruling, saying that the Ninth Circuit was wrong to treat the speech of pregnancy centers as a lesser category of free speech simply because it is “professional speech.”
California’s “Reproductive FACT Act” requires pregnancy centers that do not perform abortions to display a notice informing patients about California programs that, among other things, can provide a free or low-cost abortion for eligible women. The notice must include a phone number for a county office that would refer women to Planned Parenthood or other abortion providers.
The law also mandates that any non-medical pregnancy center, such as one that distributes free maternity clothing or baby items to a pregnant woman, must display a notice explaining that it is not licensed as a medical facility in the state of California. There is no current licensing scheme in the state of California for non-medical facilities who distribute baby supplies.
The Reproductive FACT Act was passed in 2015. The California legislature said that 200 pregnancy centers used “intentionally deceptive advertising and counseling practices” that confuse and misinform women and intimidate them “from making fully-informed, time-sensitive decisions about critical health care.”
NIFLA, a group that works with pro-life pregnancy centers, filed suit shortly afterwards.
The U.S. 9th Circuit Court of Appeals upheld the law. Judge Dorothy W. Nelson, writing for the unanimous three-judge panel, said the state of California has “a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” according to the New York Times.
Nelson said the notice “informs the reader only of the existence of publicly funded family-planning services” and “does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”
But Alliance Defending Freedom, which represented NIFLA, argued that the law constitutes viewpoint discrimination and illegal government infringement upon the right to free speech.
“Forcing anyone to provide free advertising for the abortion industry is unthinkable – especially when it’s the government doing the forcing,” said Kevin Theriot, senior counsel with Alliance Defending Freedom.
“This is even more true when it comes to pregnancy care centers, which exist specifically to care for women who want to have their babies.”
Given that information about abortion is already widely available, “the government doesn’t need to punish pro-life centers for declining to advertise for the very act they can’t promote,” Theriot said.
Pro-life pregnancy centers are often located near abortion facilities and sometimes provide sonograms and other medical care for pregnant women, free of charge. They do not provide abortion services or abortion referrals, and counselors at these centers encourage a woman to continue her pregnancy.
Similar laws in Maryland, Texas, and New York have been struck down in courts as unconstitutional.