The U.S. Supreme Court heard arguments Tuesday morning in yet another tricky abortion-related legal challenge, but this time, the central issue in the case is not the right to make private healthcare decisions but the First Amendment.
The case, National Institute of Family and Life Advocates (NIFLA) V. Becerra, is a challenge to a 2015 California law brought by a network of crisis pregnancy centers (CPCs). These are centers founded by anti-choice organizations to provide ultrasounds, pregnancy tests and counsel women against abortion; they often open up across the street or right next door to abortion clinics, and some have been found to engage in deceptive marketing tactics, provide medically inaccurate information to pregnant women, and perform medically unnecessary and invasive ultrasounds.
The California law at the center of the challenge is an effort to police these “clinics.” Known as the FACT act, the law requires CPCs that are licensed as medical providers to post signs about free or low-cost abortion and family planning services provided by the state. If the organization is unlicensed (many are primarily “counseling” operations without health professionals on staff), they have to post a sign saying that they are not a licensed medical provider.
NIFLA sued in response to the law shortly after it’s passage, arguing it violates their rights to free speech. “They’re forcing us to use our walls as a billboard to promote abortion,” Josh McClure, executive director of Pregnancy Care Clinic said in an interview with Reuters. The state of California is arguing that people have a right to know about the full range of services available to them, as well as the truth about the facility they are in.
At the heart of the debate is the balance between a state government’s right to protect consumers by regulating what’s known as “professional speech,” versus the right of individuals to say (or not say) whatever they want. If you were paying attention in history class, you know that there are some limits to your First Amendment rights. While the government cannot restrict or compel people’s political or religious speech, it can regulate other types of speech, such as making sure lawyers disclose certain information about their services in advertising or that doctors disclose information about a procedure’s risks, explains Clay Calvert, PhD, director of the Marion B. Brechner First Amendment Project at the University of Florida.
“This is a very interesting case because the Court can clarify several things here,” Calvert says. “It can clarify the scope of the First Amendment right not to be compelled to speak. It can also clarify the scope of this emerging professional speech doctrine where professional speech can be regulated more, under less scrutiny. And it can also clarify the First Amendment right to receive information, the right of the women entering these clinics to clearly receive certain information.”
Two lower courts have already reviewed the case, and both sided with the state. However, the professional speech doctrine is a relatively new legal concept, and something the Supreme Court has not weighed in on yet, Calvert adds. In other states, similar laws have been struck down, with judges ruling women can clearly find out about abortion services in other ways.
Amy Myrick, a staff attorney at the Center for Reproductive Rights, which filed an amicus brief on behalf of 50-plus reproductive rights and justice organizations in support of the law, says it would be a loss for women’s rights if the law is struck down because that would effectively “create a precedent that free speech trumps women’s health.”
“But there’s a flip side,” Myrick adds. “If they support this anti-choice argument, it would create a huge double standard for abortion providers, who are forced to say all sorts of things.” Abortion rights’ advocates could then possibly challenge laws requiring providers to provide state-mandated counseling they disagree with. For example, some states require providers to offer medically inaccurate information about breast cancer risk and future fertility after abortion, according to the Guttmacher Institute.
Research suggests that few people fall for CPCs’ misleading tactics, and most women are not likely to be swayed by anti-abortion counseling because they are highly likely to be sure about their decision by the time they seek care, says Lauren Ralph, PhD, an epidemiologist at Advancing New Standards In Reproductive Health. But reproductive rights activists say the price of even one woman being misled is too high to ignore. “In terms of pregnancy related care you’re already in a time crunch, especially in states that require waiting periods,” says Alexis Cole, policy director for URGE: Unite for Reproductive & Gender Equity. “That’s why we need people to get the full range of options in a medically accurate way as soon as possible. Or else their choice could be taken away from them.”
The Court seemed skeptical of the California law as the justices heard arguments this morning, with even liberal justices seeming to be receptive to NIFLA’s free speech claim, according to the New York Times. Justice Anthony M. Kennedy, who has cast the decisive swing vote in favor of abortion rights in recent cases, seemed “hostile” to the law.
The decision is expected in June.
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