Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case

WASHINGTON — Ruling for opponents of abortion on free speech grounds, the Supreme Court said Tuesday that the state of California may not require religiously oriented “crisis pregnancy centers” to supply women with information about how to end their pregnancies.

The case was a clash between state efforts to provide women with facts about their medical options and First Amendment rulings that place limits on the government’s ability to compel people to say things at odds with their beliefs.

Justice Clarence Thomas, writing for the five-justice conservative majority, accepted the free-speech argument, ruling that the First Amendment prohibits California from forcing the centers, which oppose abortion on religious grounds, to post notices about how to obtain the procedure. The centers seek to persuade women to choose parenting or adoption.

“Licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them,” Thomas wrote. “One of those services is abortion — the very practice that petitioners are devoted to opposing.”

California, he wrote, can use other means to tell women about the availability of abortion, including advertising. But “California cannot co-opt the licensed facilities to deliver its message for it,” he wrote.

The case was the first touching on abortion since Justice Neil Gorsuch, who sided with the majority, joined the court. While the decision’s legal analysis turned on the First Amendment, it was lost on no one that the justices most committed to defending abortion rights were all in dissent.

The court returned the case to the lower courts for another look, but it seemed unlikely that California would be able to present new evidence or arguments to save the law.

In a dissent that he summarized from the bench, Justice Stephen Breyer accused the majority of acting inconsistently. In 1992, he noted, the Supreme Court upheld a Pennsylvania law that required doctors who performed abortions to provide some kinds of information to their patients.

“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?” he asked.

“As the question suggests,” Breyer wrote, “there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and ‘what is sauce for the goose is normally sauce for the gander.'”

Thomas responded that the 1992 decision was different because it concerned a medical procedure. Breyer was unpersuaded.

“Really?” he asked. “No one doubts that choosing an abortion is a medical procedure that involves certain health risks. But the same is true of carrying a child to term and giving birth.”

Chief Justice John Roberts and Justices Gorsuch, Anthony Kennedy and Samuel Alito joined the majority opinion.

In a concurring opinion, Kennedy said the First Amendment bars compelling people to betray their beliefs.

“Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” he wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Michael Farris, a lawyer with Alliance Defending Freedom, which represented the centers, said he welcomed the ruling.

“No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion,” he said. “In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that and that it must respect pro-life beliefs.”

California’s attorney general, Xavier Becerra, said the ruling would place needless barriers between women and access to medical care.

“When it comes to making their health decisions, all California women — regardless of their economic background or ZIP code — deserve access to critical and nonbiased information to make their own informed decisions,” he said.

The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, concerned a California law that requires centers operated by opponents of abortion to provide women with information about the availability of the procedure.

The state requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs and to provide the phone number for more information.

The centers argued that the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders said the notices combat incomplete or misleading information provided by the clinics.

The California Legislature found that the roughly 200 centers in the state used “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” A separate part of the law applies to unlicensed clinics. They are not required to post notices about the availability of abortion, but are required to disclose that they are not licensed by the state.

Thomas said those requirements, which can require notices in as many as 13 languages, were too burdensome. In dissent, Breyer wrote that the question should have been decided in the context of particular disputes and not as a general matter.

“Whether the requirement of 13 different languages goes too far and is unnecessarily burdensome in light of the need to secure the statutory objectives is a matter that concerns Los Angeles County alone, and it is a proper subject for a Los Angeles-based as-applied challenge in light of whatever facts a plaintiff finds relevant,” Breyer wrote. “At most, such facts might show a need for fewer languages, not invalidation of the statute.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer’s dissent.

Tuesday’s ruling reversed a unanimous decision from a three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, which had upheld both parts of the law.

“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,” Judge Dorothy W. Nelson wrote for the panel in upholding the requirement that licensed clinics post a notice about abortion.

“The notice informs the reader only of the existence of publicly funded family-planning services,” Nelson wrote. “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”

Other federal appeals courts had struck down similar laws, saying that the government could find other ways to inform women about their options. The 9th Circuit also upheld the requirement that unlicensed clinics disclose that they are unlicensed.

“California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state,” Nelson wrote.

“And given the Legislature’s findings regarding the existence of” the centers, “which often present misleading information to women about reproductive medical services, California’s interest in presenting accurate information about the licensing status of individual clinics is particularly compelling.”

Much of Tuesday’s decision was a continuation of a debate at the Supreme Court about how courts should analyze First Amendment challenges.

Thomas wrote that laws restricting speech must be subject to searching scrutiny, while Breyer expressed concern that free speech arguments were being used to undermine ordinary and sensible regulations.

“Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,” Breyer wrote.