WASHINGTON — Several Supreme Court justices questioned the constitutionality of a California law requiring crisis pregnancy centers to disclose that they do not provide abortion services and educate women on where those services are available during oral arguments Tuesday.
Passed in October 2015, the California FACT Act requires licensed facilities to tell patients about services and programs that provide state-subsidized family planning services, prenatal care and abortions. It also requires unlicensed facilities to inform patients that they are not licensed by the state.
The law was created in reaction to crisis pregnancy centers that counsel against abortion but look similar to medically licensed clinics. Abortion rights advocates say the centers do not provide adequate information on abortion and are meant to deceive women into carrying out their pregnancies.
Shortly after the law was passed, a group of crisis pregnancy centers known as the National Institute of Family and Life Advocates sued San Diego County and California filed a lawsuit claiming that the law violated their First Amendment free speech rights. They said it promoted abortion, which they personally opposed, by forcing them to tell patients about services offered by the state. They demanded that a federal court block implementation of the law, but the request for a temporary injunction was denied by both the district and appeals court.
During oral arguments Tuesday, NIFLA attorney Michael Farris said the law illegally singles out nonprofit anti-abortion clinics compared with private clinics and doctors..
The law exempts licensed clinics and private doctors that accept Medi-Cal and participate in the Family Planning, Access, Care, and Treatment program. The two publicly funded California health care programs require that clinics provide all family planning services, including contraception, to participate.
Justices Elena Kagan and Sonia Sotomayor, widely seen as a liberal voices on the court, seemed to agree with Farris. Kagan said that the law appeared “gerrymandered” to target crisis pregnancy centers — and that if it was, “that is a serious issue.”
Justice Samuel Alito, a conservative, agreed. He said that the state’s criteria — which also only applies to nonprofit organizations as all for-profits are exempt — seemed to specifically target anti-abortion groups.
“When you put all this together, you get a very suspicious pattern,” Alito said.
Joshua Klein, representing California, said the law’s focus on nonprofits doesn’t make it an attack on anti-abortion groups. Instead, it “is targeted toward women who seek free, low-cost care,” and that those women are more likely to seek out care from nonprofit organizations.
Caroline Mala Corbin, professor of law at University of Miami, echoed that argument.
“People without resources are more likely to end up at nonprofit places,” Corbin said in an interview. “Therefore it makes the most sense to have nonprofits make the disclosures about the availability of free health care.”
Corbin also said the law does not single out any specific type of nonprofit from informing pregnant women that the state provides publicly funded reproductive health care. In effect, it applies to both pro-abortion rights and anti-abortion centers.
Justice Stephen Breyer said a law requiring the disclosure of where abortion and family planning services are available is not an issue because there’s already precedent. He cited the 1993 Supreme Court case Planned Parenthood v. Casey, which reaffirmed the right to abortion outlined in Roe v. Wade and added the current “undue burden” standard regarding restrictions. The court found that the government could legally require doctors to inform women seeking abortions of the nature of the procedure, the possible health risks of abortion and childbirth and the age of the unborn child without infringing on a woman’s right to an abortion.
“If a pro-life state can say you have to tell people about adoption, why can’t a pro-choice state say you have to tell people about abortion?” Breyer asked Farris.
Debra Ness, president of the pro-abortion rights National Partnership for Women and Families, said in a statement that the case is about states protecting consumers and that “women seeking health care deserve the truth” regarding all available options.
“The fake women’s health centers at issue in National Institute of Family and Life Advocates (NIFLA) v. Becerra masquerade as comprehensive health care clinics,” Ness said. “But in fact, they prey on women facing unintended pregnancies, often targeting young women, women of color and low-income women. The tactics they use – deceiving, misleading, shaming and delaying care for women – are despicable.”
However, Mark Rienzi, professor of law at The Catholic University of America, said the California law has a “burdensome and targeted nature.”
“The case is simple – governments can’t target speakers they don’t like,” Rienzi said in a statement. “California admitted this morning that some applications of its pregnancy center law are unconstitutional.”