The Supreme Court of the United States of America (SCOTUS) on Tuesday ruled in favour of a preliminary injunction against a California law that required all pregnancy centers, including pro-life ones, to post referrals to state-funded abortion providers and birth control resources, forcing them to promote services that violate their beliefs.
The Court, with a 5-4 majority, ruled that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” It then opined that the petitioners were likely to succeed on the merits of their claim that the Act violates the First Amendment, and remanded the case for further proceedings consistent with its opinion.
Justice Clarence Thomas delivered the opinion of the court, and was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch. Justice Kennedy filed a concurring opinion in which Justices Roberts, Alito and Gorsuch joined. Justice Stephen Breyer filed a dissenting opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The FACT Act was enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services. The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Licensed clinics are required to notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics are supposed to notify women that California has not licensed the clinics to provide medical services.
The Court had now been approached by two crisis pregnancy centers, one licensed and one unlicensed, and an organisation of crisis pregnancy centers alleging that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court had denied their motion for a preliminary injunction, and the Ninth Circuit had affirmed.
Licensed notice likely violates First Amendment
The Court noted that while enforcing the prohibition against laws abridging free of speech under the First Amendment, the precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations, it said, “target speech based on its communicative content”. The Court then noted that the impugned licensed notice is a content-based regulation of speech, and went on to reject the lower level of scrutiny applied by the Ninth Circuit on the notice, which the Ninth Circuit ruled to be falling under the ambit of “professional speech”. SCOTUS in fact snubbed the Ninth Circuit for having treated “professional speech” as a unique category exempt from ordinary First Amendment principles.
It then opined that the licensed notice cannot even survive intermediate scrutiny, highlighting the fact that the FACT Act also excludes, without explanation, several clinics from these requirements. Such exemptions, it asserted, demonstrates “the disconnect between its stated purpose and its actual scope”.
It observed, “California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. If California’s goal is to educate low-income women about the services it provides, then the licensed notice is “wildly under-inclusive”… California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics.”
The Court further emphasised on the fact that California itself could have advertised the information, instead of placing the responsibility on such clinics, observing, “California could even post the information on public property near crisis pregnancy centers…California cannot co-opt the li- censed facilities to deliver its message for it.”
It then concluded that the petitioners are likely to succeed on the merits of their challenge to the licensed notice.
Unlicensed notice “unduly burdensome”
With regard to the unlicensed notice, the Court opined that California had not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” It highlighted the fact that while the unlicensed notice applies to facilities that provide “pregnancy-related” services, it excludes facilities that advertise and provide nonprescription contraceptives, even though the latter is also likely to make women think that it is licensed.
It then ruled that the unlicensed notice is “unjustified and unduly burdensome”, observing, “The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers…
California has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjustified and unduly burdensome…”