The Next Big Abortion Case Is Actually About the First Amendment

Can California require crisis pregnancy centers to disclose to patients the availability of free or low-cost reproductive care?
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Morning light shines outside the U.S. Supreme Court building on March 20th, 2017, in Washington, D.C.

Morning light shines outside the U.S. Supreme Court building on March 20th, 2017, in Washington, D.C.

The United States Supreme Court is hearing oral arguments today on a California law requiring crisis pregnancy centers to disclose to patients the availability of free or low-cost reproductive care. At question is whether the law amounts to a free-speech violation.

In October of 2015, the state of California passed a law aimed at regulating crisis pregnancy centers (CPCs). CPCs are typically religious organizations that pose as health centers, often providing misleading—sometimes flat-out false—information to pregnant people in order to discourage abortion. There are more than 200 crisis pregnancy centers in California, according to the San Francisco Chronicle. Because abortion services come with a built-in clock, it's important that people have access to up-to-date and medically accurate information as soon as possible.

Under the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (or Reproductive FACT Act), licensed clinics, including CPCs, must disclose to patients that they have access to state-funded options of low- or no-cost contraceptives and abortion care with a phone number if the patients need more information. If the establishment isn't licensed to provide medical care but aim to help pregnant women (by providing diapers or something similar), they must also provide disclosures in up to 13 languages that they are not a medical facility. The goal of the Reproductive FACT Act is to make women seeking reproductive care clear of their options, and aware of whether they'd ended up at a CPC, many of which set themselves up near abortion providers, purposely to confuse women and direct them toward an anti-choice CPC instead.

A group of CPCs sued the state, and now, over two years later, the U.S. Supreme Court will hear arguments on whether the abortion and contraception disclosures under the Reproductive FACT act violate the faith-based CPC's rights to freedom of speech under the First Amendment. Unlike many well-known cases before the Court concerning abortion, this case isn't about number of weeks before abortion is illegal or what regulations an abortion provider must undergo. Tuesday's case is about a regulation that could set a weighty precedent for anti-choice groups and anti-abortion counseling nationwide.

Amy Howe is the co-founder of SCOTUSblog, a Supreme Court-focused website. When we discussed the upcoming arguments, Howe says the case's narrow scope will bring about interesting analysis on First Amendment rights.

"It's a big case about the First Amendment and what the government can and can't require someone to say, and how strict the scrutiny is," Howe says. "Can these groups that oppose abortion be required to convey messages that they find, they say, morally repugnant? Can the government require people to make these pronouncements or disclosures?"

Thus far, it looks like yes. A federal district court ruled in February of 2016 against the centers' argument that the California law violates their First Amendment rights; then the U.S. Ninth Circuit Court of Appeals affirmed the decision in October of 2016. For the justices of the appellate court, the issue was one of consumer protection: CPCs weren't being forced to promote pro-choice rhetoric; the state was simply regulating medical care.

Elissa Graves, a legal counsel at Alliance Defending Freedom, the religious-freedom legal organization representing the clinics, sees it differently. She contends that the law violates fundamental rights of free speech and freedom of religious expression. "The government shouldn't have the power to force someone to speak a message contrary to their belief," she says.

A potential impact of this case is the cleaning up of the mandatory disclosure and counseling laws on the federal level. The federal courts "aren't settled" on mandatory disclosures regarding abortions, says Jessica Mason Pieklo, a legal analyst at Rewire News, so it's hard to predict where even a ruling affirming the lower court's decision would lead.

But there are a variety of laws on the books that are hostile to abortion access, like those in Mississippi, where doctors are required to give counseling that discourages a patient from obtaining an abortion, that could be affected. A ruling that upholds California's statute could provide a legal pathway toward challenging ultrasound or mandatory counseling laws across the country.

For a place like Texas, whose mandatory ultrasound law was upheld by the U.S. Fifth Circuit Court of Appeals in 2012, a narrow answer by the Supreme Court could mean no legal pathway to a challenge. "A lot of [this case] is going to depend on the extent to which the court focuses on the idea of abortion as political speech versus abortion and contraception as health-care services," Pieklo says.

To get to even the possibility of a legal pathway, though, the arguments must still go through a majority conservative court.

"Whatever the court says could play out with laws that are intended to discourage abortion," Howe says.

The court's opinion is expected by the end of June.

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