Given that a conservative majority may soon reemerge on the Supreme Court, conservative legislators may feel emboldened to pass new laws restricting a woman\u2019s right to abort. But progressive legislators in California, Hawaii, and Illinois have responded by demonstrating their commitment to providing women with abortion access by enacting laws requiring pro-life centers to educate patients about low-cost and free abortions provided by the state.<\/p>\n
Today, the Supreme Court granted certiorari<\/a> in National Institute of Family and Life Advocates v. Becerra, <\/em>which challenges California\u2019s version of these mandated abortion-related disclosures\u2013\u2013the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act (the “Act”). The case will decide whether a state can compel pro-life \u201ccrisis pregnancy centers\u201d to provide clients with information about state-funded abortions and would resolve the current circuit split about what level of scrutiny courts should apply to abortion-related disclosure cases.<\/p>\n In Planned Parenthood v. Casey<\/em>, the Court affirmed a women\u2019s right to abort first announced two decades earlier[1]<\/a> and held that courts must apply the undue burden test to abortion restricting mandates.[2]<\/a> The test invalidates any laws whose \u201cpurpose or effect\u201d is \u201cto place a substantial obstacle in the path of a woman seeking an abortion.\u201d[3]<\/a> Gonzalez v. Carnhart<\/em>, however, expanded the state\u2019s power to constrain the right to abort in 2007 by upholding Congress\u2019 ban on \u201cpartial-birth abortion,\u201d which was the most common form of second trimester abortion at the time.[4]<\/a> While the Court\u2019s subsequent decision in Whole<\/em> Woman\u2019s Health v. Hellerstadt<\/em>\u00ad\u00ad was a nationwide victory for abortion access in 2016, invalidating Texas laws responsible for closing almost half of the state\u2019s abortion clinics,[5]<\/a> only three clinics have re-opened<\/a> since the decision and Texas lawmakers have staunchly reaffirmed their condemnation of abortion through continued restrictions to access<\/a>.<\/p>\n Becerra <\/em><\/strong>and the Court\u2019s Compelled Speech Doctrine<\/strong><\/p>\n In the latest attempt to curtail a women\u2019s right to abort, petitioners in Becerra <\/em>claim that California\u2019s FACT Act abridges their freedom of speech by unconstitutionally compelling pro-life centers to express the state\u2019s message on how to obtain abortions.<\/p>\n The Court has established that freedom of speech includes the right not to speak[6]<\/a>; but, it has only invalidated government mandates that compel speech when they affect the speaker\u2019s own message.[7]<\/a> In contrast, claims of impermissibly compelled speech have failed where the speaker\u2019s own message was not affected by the compelled speech. For example, in Rumsfield v. Forum for Academic and Institutional Right<\/em>s, petitioners argued that the Solomon Amendment\u2013\u2013a federal law that withheld federal funds from various schools that declined to provide information to students about military recruiters\u2013\u2013was unconstitutional because it forced the schools to express views contrary to their belief that employers should not discriminate against homosexuals.[8]<\/a> The Court rejected the argument because, inter alia<\/em>, the schools\u2019 own message was not \u201caffected by the speech it was forced to accommodate.\u201d[9]<\/a> When the schools allowed the military to recruit on campus, they were not themselves \u201cspeaking\u201d because \u201c[n]othing about recruiting suggest[ed] that law schools agree[d]\u201d with the recruiter\u2019s speech.[10]<\/a><\/p>\n Similarly, in Becerra<\/em>, California\u2019s law does not require clinics to communicate any specific message. It merely requires<\/a>: (1) licensed clinics to post a notice stating, \u201cCalifornia 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],\u201d and (2) unlicensed centers post and distribute through advertisement a notice stating, \u201cThis facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.\u201d<\/p>\n Petitioners argue<\/a> that the notices force the centers to \u201cbegin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.\u201d But the centers already confuse patients by misleading them into believing<\/a> that abortions cause future miscarriages and that there is no need to obtain an abortion because 30-50% of pregnancies already end in \u201cspontaneous abortion.\u201d<\/p>\n The FACT Act does nothing more than ensure that the centers\u2019 patients receive accurate, comprehensive information about their pregnancy choices. And even if the mandated notices articulate the government\u2019s own message, shouldn\u2019t states be able to expressly approve of abortion since Casey <\/em>allows them to expressly censure the practice?[11]<\/a><\/p>\n Notably, the Court will also address the gaps in its compelled speech jurisprudence in Masterpiece Cakeshop v. Colorado Civil Rights Commission <\/em>this term<\/a>, which will be argued by the same lawyers arguing Becerra<\/em>. Masterpiece <\/em>presents the question of whether a Colorado state law, which required a baker to bake a wedding cake for a same-sex couple, impermissibly compels speech. Petitioner\u2019s claim in Masterpiece <\/em>is that the Colorado state law unconstitutionally forces him to communicate ideas contrary to his biblical beliefs. As in Becerra<\/em>, such an argument should fail because Colorado\u2019s law does not compel the petitioner to adopt or advance any particular message by requiring he bake a cake.<\/p>\n Strict or Intermediate Scrutiny?<\/strong><\/p>\n The Court was likely prompted to grant certiorari in Becerra <\/em>to resolve a circuit split concerning what level of scrutiny should be applied to abortion-related disclosure cases. Determining which test applies could be dispositive, as few laws<\/a> subject to strict scrutiny survive. Petitioners in Becerra <\/em>argue that the Ninth Circuit erroneously examined the constitutionality of California\u2019s law under intermediate, rather than strict, scrutiny. The Ninth Circuit acknowledged that circuits are not in agreement as to what level of scrutiny should be applied to abortion-disclosure cases and agreed with the Fourth Circuit that Casey <\/em>did not \u201cannounce the proper level of scrutiny to be applied to abortion regulations that compel speech.\u201d[12]<\/a><\/p>\n Petitioners aver<\/a> that California\u2019s FACT Act should be subject to strict scrutiny and that the Ninth Circuit\u2019s decision runs counter to the Court\u2019s 2015 decision in Reed v. Town of Gilbert, Ariz<\/em>.[13]<\/a> But petitioners reasoning is not so axiomatic. Indeed, the Reed <\/em>Court held content-based laws presumptively unconstitutional unless justified under strict scrutiny.[14]<\/a> But the Ninth Circuit noted that Reed <\/em>does not demand California\u2019s content-based regulation be evaluated under strict scrutiny because the FACT Act falls under an exception; that is, those \u201chistorical and traditional categories of content-based restrictions that are not subject to strict scrutiny.\u201d[15]<\/a>\u00a0The court\u00a0held that because the Act\u00a0\u201cdoes not discriminate based on the particular opinion, point of view, or ideology of a certain speaker\u201d as it \u201capplies to all licensed and unlicensed facilities, regardless of what, if any, objections they may have to certain family-planning services,\u201d\u00a0[16]<\/a>\u00a0it is\u00a0\u201cviewpoint neutral.\u201d [17]<\/a>\u00a0Thus,\u00a0it would be inappropriate to analyze the Act under strict scrutiny, even though it is a \u201ccontent based regulation.”<\/p>\n In line with the Fourth and Third Circuit,[18]<\/a> the Ninth Circuit instead applied intermediate scrutiny to the Act.[19]<\/a> The court reasoned that intermediate scrutiny was consistent with the fact that \u201cFirst Amendment protection of a professional\u2019s speech is somewhat diminished,\u201d but professionals also do not \u201csimply abandon their First Amendment rights when they commence practicing a profession.\u201d[20]<\/a> The Act survived intermediate scrutiny because the state had a substantial interest in \u201censuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion,\u201d and the required notices were narrowly tailored to that interest because they inform the reader \u201conly of the existence of publicly-funded family-planning services.\u201d[21]<\/a><\/p>\n Because several courts have similarly rejected evaluating abortion-related disclosure laws under strict scrutiny,[22]<\/a> which test should apply in cases such as Becerra<\/em>\u00a0is far from obvious. Whether the Court will ultimately rule in California\u2019s favor remains to be seen, as the Court\u2019s abortion decisions often depend upon the Justices\u2019 personal beliefs.<\/p>\n The Court\u2019s decision to hear Becerra<\/em> aptly follows a scathing appeal to the Court, filed by solicitor general Noel J. Francisco<\/a>, asking the Justices to vacate a lower court\u2019s order allowing an undocumented and unaccompanied teen to obtain an abortion. The lower court\u2019s decision followed the federal government\u2019s refusal to transport the minor to an abortion clinic after apprehending her at the border, notwithstanding a Texas judge\u2019s grant of judicial permission for the abortion. Francisco argued that the lower court\u2019s decision should be vacated because the government \u201cis not obligated to facilitate abortion<\/a>.\u201d<\/p>\n At a time when the Trump administration continually threatens<\/a> a woman\u2019s right to abort, the Court should uphold California\u2019s abortion-disclosure laws and embrace the opportunity Becerra <\/em>presents for the Court to defend this well-established, fundamental civil liberty.<\/p>\n [1]<\/a> Roe v. Wade, <\/em>410 U.S. 113, 93 S. Ct. 705 (1973)<\/p>\n [2]<\/a> Planned Parenthood of Se. Pennsylvania v. Casey<\/em>, 505 U.S. 833, 877 (1992).<\/p>\n [3]<\/a> Id. <\/em><\/p>\n [4]<\/a> Gonzales v. Carhart<\/em>, 550 U.S. 124 (2007).<\/p>\n [5]<\/a> See Whole Woman’s Health v. Hellerstedt<\/em>, 136 S. Ct. 2292 (2016).<\/p>\n [6]<\/a> See West Virginia Bd. of Ed. v. Barnette, <\/em>319 U.S. 624 (1943) (holding unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag); Wooley v. Maynard<\/em>, 430 U.S. 705 (1977) (holding unconstitutional a state law requiring drivers to display the state motto on their license plates).<\/p>\n [7]<\/a> See e.g. Miami Herald Publishing Co. v. Tornillo<\/em>, 418 U.S. 241 (1974) (holding unconstitutional a state law requiring a newspaper to provide give (?) for political candidates who had been criticized by the newspaper to respond because it interfered with the speaker\u2019s desired message), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc<\/em>., 515 U.S. 557, 572\u2013574 (1995) (holding unconstitutional a state law ordering that a parade include a particular group because the group would \u201calter the expressive content of th[e] parade.\u201d)<\/p>\n [8]<\/a> Rumsfeld v. Forum for Acad. & Institutional Rights, Inc<\/em>., 547 U.S. 47, 48\u201349 (2006).<\/p>\n [9]<\/a> Id. <\/em><\/p>\n [10]<\/a> Id.<\/em><\/p>\n [11]<\/a> See Casey<\/em>, 505 U.S. at 877 (1992) (noting that States are permitted to pass regulations that \u201cexpress profound respect for the life of the unborn\u201d so long as they \u201care not a substantial obstacle to the woman\u2019s exercise of the right to choose\u201d).<\/p>\n [12]<\/a> Stuart v. Camnitz<\/em>, 774 F.3d 238, 249 (4th Cir. 2014).<\/p>\n [13]<\/a> See Reed v. Town of Gilbert, Ariz<\/em>., 135 S. Ct. 2218, 2226 (2015).<\/p>\n [14]<\/a> Id. <\/em><\/p>\n [15]<\/a> United States v. Swisher<\/em>, 811 F.3d 299, 313 (9th Cir. 2016) (discussing Reed<\/em> and noting examples that illustrate that \u201c[e]ven if a challenged restriction is content-based, it is not necessarily subject to strict scrutiny\u201d (citing R.A.V. v. City of St. Paul<\/em>, 505 U.S. 377, 382\u201383 (1992)).<\/p>\n [16]<\/a> Nat’l Inst. of Family & Life Advocates v. Harris<\/em>, 839 F.3d 823, 835 (9th Cir. 2016).<\/p>\n [17]<\/a>\u00a0Id.<\/i><\/p>\n [18]<\/a> See generally Stuart<\/em>, 774 F.3d at 249 (applying intermediate scrutiny when physicians challenged an abortion-related disclosure law requiring them to describe the fetus to women seeking an abortion because it was a violation of their First Amendment rights); King v. Governor of the State of New Jersey<\/em>, 767 F.3d 216 (3d Cir. 2014) (holding that intermediate scrutiny should apply to a law prohibiting therapy intended to change patients\u2019 sexual orientation because \u201ca licensed professional does not enjoy the full protection of the First Amendment when speaking as\u00a0part of the practice of her profession\u201d).<\/p>\n [19]<\/a> Harris<\/em>, 839 F.3d at 837.<\/p>\n [20]<\/a> Id. <\/em>at 840 (citation omitted).<\/p>\n