Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Compelled Speech - National Institute of Family & Life Advocates V. Becerra

Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Compelled Speech - National Institute of Family & Life Advocates V. Becerra

Article excerpt

Consumer-protective regulations often mandate disclosures on packaging or in places where products or services are sold. (1) The Supreme Court has upheld such requirements, including that lawyers clearly explain fee structures, when the disclosures include "purely factual and uncontroversial information." (2) In the abortion context, states can compel doctors to give patients "truthful, nonmisleading information" without violating the First Amendment. (3) Last Term, in National Institute of Family & Life Advocates v. Becerra (4) (NIFLA), the Court narrowed its prior commercial speech decisions, widening the scope of First Amendment protection in a way that could undercut a significant number of consumer protection laws. Applied to abortion, the doctrine created by the Court preserves compelled disclosures in the interest of opposing abortion but forecloses disclosures aimed at increasing abortion access.

In 2015, California passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (5) (FACT Act). The Act required licensed facilities providing services including ultrasounds, contraception, pregnancy tests, and abortions to post notices informing patients of California's free and low-cost family planning services, prenatal care, and abortion. (6) Many unlicensed facilities providing ultrasounds, prenatal care, or pregnancy tests were required to disclose on-site and in advertising: "This 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." (7) Both notices were required "in English and in the primary threshold languages for [state health care] beneficiaries as determined by the State Department of Health Care Services for the county." (8)

A national network of nonprofit pro-life pregnancy centers filed for a preliminary injunction, arguing that the Act violated its member's rights to free exercise of religion and free speech. (9) The District Court rejected the Plaintiffs' claims. On the licensed clinic notice, the court held that "the providers' action in informing patients of their treatment options is professional conduct subject to rational basis review" (10) and that the law could even survive intermediate scrutiny. (11) As to the unlicensed clinics, the court held that the Act was valid under any level of scrutiny, as the state had a compelling interest in ensuring patients knew whether a provider was licensed and the law was narrowly tailored to that interest. (12) A Ninth Circuit panel affirmed. (13) The panel first explained that the Supreme Court did not announce a standard of review when upholding abortion-related disclosure laws in Planned Parenthood of Southeastern Pennsylvania v. Casey (14) and Gonzales v. Carhart. (15) It therefore relied on Ninth Circuit precedent describing a spectrum of professional behavior from the most protected "public dialogue" to the least protected "professional conduct." (16) The panel held that the FACT Act fell at the midpoint of that continuum, "within the professional-client relationship" where "the purpose ... is to advance the welfare of the clients, rather than to contribute to public debate," and so applied intermediate scrutiny. (17) It noted that "the professional nature of the licensed clinics' relationship with their clients extends beyond the examining room" to notices provided in the waiting room. (18) The Ninth Circuit upheld the licensed clinic notice as reflecting California's compelling interest in ensuring women could access state-provided reproductive care and as narrowly drawn to inform specifically targeted patients in a time-sensitive situation. (19) The panel held that the unlicensed notice survived even strict scrutiny, as the statute was narrowly tailored to California's compelling interest in making accurate information about clinics available. (20) The Supreme Court reversed. (21) Writing for the Court, Justice Thomas (22) held that both requirements of the FACT Act were unconstitutional regulations of speech. …

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