California passed an act requiring licensed crisis pregnancy centers to list resources and unlicensed centers to post a notice stating that they’re unlicensed. An anti-choice coalition—a licensed center, an unlicensed center, and a crisis pregnancy center organization—challenged the law in federal district court in California, claiming it violates their First Amendment freedom of speech, and asked the court for a preliminary injunction to block its implementation.
The district court found it unlikely that the challenge to the law would succeed and so denied the request; the Ninth Circuit Court of Appeals upheld the district court. But now the Supreme Court’s reversed in a 5-4 decision written by right-wing stalwart Justice Clarence Thomas.
There’s a lot that’s frightening about this ruling. Including the fact that even Thomas’s summary of the legislation in question makes it seem reasonable or even benign, although, obviously, the majority decided it’s not just unreasonable but likely unconstitutional.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment.
The majority decides the notice requirements likely do violate the First Amendment. (In assessing the propriety of a preliminary injunction, they don’t have to [nor should they] reach the merits of the underlying challenge, just determine the likelihood of success.)
A First Amendment crash course: When it comes to speech, there are content-based regulations and content-neutral regulations. When something’s a content-based regulation, it’s directed at the message conveyed by speech; a content-neutral regulation targets how speech is expressed, put simply. Content-based regulations are presumptively unconstitutional; to withstand judicial review, the state has to prove they are (1) “narrowly tailored” and (2) “serve compelling state interests.”
Thomas picks apart the requirement that licensed clinics provide notice of state-sponsored services based in part on two questionable distinctions: that the services are not those of the clinic or its professionals but provided by the state and, of more concern, that abortion is a controversial topic. Abortion may be socially or religiously controversial, but it’s indisputably legal.
Some suggest this ruling could make it more difficult for states to force doctors to dispense information intended to discourage women from having abortions. But Thomas goes to pains to distinguish between speech compelled as part of the practice of medicine and obtaining informed consent and the passive posting at issue here.
The requirement that unlicensed centers post a notice to that effect falls under Thomas’s pen because “[o]ur precedents require disclosures to remedy a harm that is ‘potentially real not purely hypothetical’” and should be “no broader than reasonably necessary.”
Thomas says it’s not necessary to see if California could justify the notice requirement because the harm it seeks to prevent is “purely hypothetical.” Of course, Thomas pushes on anyway to say it creates an unconstitutional burden on speech: “The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest.”
Swing vote Justice Anthony Kennedy concurs solo, seemingly just to double down on the far-right Christians-are-the-real-victims concept he so clearly adopted as of Masterpiece Cakeshop. That, of course, is the opinion in which Kennedy erred on the side of protecting a baker’s anti-LGBTQ religious beliefs even with a gay couple’s basic civil rights at stake.
Thomas doesn’t mention “religion” or “religious” once, but they’re on roughly the same page: Like Thomas, Kennedy seems to embrace the notion that despite abortion’s legality—and validity as a medical procedure—the FACT Act is ideological in nature.
This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.
Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, dissent. Breyer first takes aim the underlying problem with the majority’s First Amendment rationale.
[The majority] applies heightened scrutiny to the Act because the Act, in its view, is “content based.” “By compelling individuals to speak a particular message,” it adds, “such notices ‘alte[r] the content of [their] speech.’” “As a general matter,” the majority concludes, such laws are “presumptively unconstitutional” and are subject to “stringent” review. The majority recognizes exceptions to this general rule: It excepts laws that “require professionals to disclose factual, noncontroversial information in their ‘commercial speech,’ ” provided that the disclosure “relates to the services that [the regulated entities] provide.” It also excepts laws that “regulate professional conduct” and only “incidentally burden speech.”
The majority’s splitting hairs by saying that the notification requirement can be distinguished from laws that require professionals to disclose information about the services they directly provide and laws regulating professional conduct.
Down the line, this opinion could create problems for regulation broadly, Breyer points out.
Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered “content based,” for virtually every disclosure law requires individuals “to speak a particular message.”
Consider, for example, laws requiring hospitals to inform parents of newborns about certain diseases and available vaccinations. If abortion’s social controversiality is enough to merit exceptionalism, what about vaccination? This slippery slope could lead to more than a century of strides in public health could be toppled. It’s time to recognize that the Roberts Supreme Court’s getting steadily more comfortable engineering blatant exceptionalism, especially when it comes to social issues.