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There is an enormous difference between actively promoting information about a service and advising people to pursue that as a course of action versus making the information available to inform the public of an alternative service they may use. Yet, this possible distinction is what defines the latest free speech case that the Supreme Court intends to hear. Will the Supreme Court strike down or uphold this law? The answer lies in the interpretation of California’s Reproductive FACT Act.

At issue is a California law mandating anti-abortion pregnancy centers to tell clients about the availability of free and low-cost abortion and contraception services.

The California Reproductive FACT Act regulates the healthcare industry by mandating that it provide information to patients so that they can make an informed decision about a pregnancy. The main issue in this case involves informing a pregnant client that they have multiple options at their disposal.

The Act was passed into law, by the California Legislature, in 2015 because it was determined that approximately 200 pregnancy centers sometimes used "intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women” about their options for medical care.

The Act makes it imperative that licensed and covered anti-abortion facilities offer a notice to all clients that reads, "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert telephone number]."

Furthermore, the law also states the attorney general and other prosecutors, have the power to “bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements."

The Act details the type of content and information that must be clearly provided in one of several ways, including providing printed or digital notices and a public notice, on paper, in a conspicuous place in the waiting room which "shall be at least 8.5 inches by 11 inches and written in no less than 22-point type."

Anti-abortion groups took exception to the Act, and a group of Christian-based non-profit facilities filed a legal challenge alleging that the law forces clinics to advertise or promote abortion services and violates free speech rights.

The Supreme Court intends to hear the case as launched, but is limiting the scope of the Court’s participation to only one question: "Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."

The justices will hear an appeal of the 9th U.S. Circuit Court of Appeals ruling that upheld the 2015 California law in a 3-0 decision. The anti-abortion challengers argue that the law, by forcing them to post the information, violates their free speech rights under the U.S. Constitution’s First Amendment. The 9th Circuit Court upheld the law saying the disclosure provision does not “encourage, suggest or imply” that a woman should seek an abortion. Judge Dorothy Nelson, said that the Act is “closely drawn to achieve California’s interest in safeguarding public health and fully informing Californians of the existence of publicly funded medical services.”

Anti-abortion centers and other organizations, like the Pacific Justice Institute (PFI), suggest the Act is akin to suggesting Alcoholics Anonymous (AA) and similar organizations must have a sign telling people where they may get free alcohol.

The legal group representing the challengers, the Alliance Defending Freedom (ADF), represented by senior counsel Kevin Theriot says, “Information about abortion is just about everywhere, so the government doesn’t need to punish pro-life centers for declining to advertise for the very act they can’t promote.” However, at question here is whether or not the centers are being punished for not advertising other options for unexpected pregnancies and whether having the information, publicly available, is a breach of First Amendment freedom of speech rights or is considered to be advertising.

ADF attorneys also represent the National Institute of Family and Life Advocates (NIFLA), a group representing 110 California pregnancy centers, alleging the Act's provisions amount to unconstitutional “compelled speech.” The main issue for ADF is whether or not the state can mandate a faith-based center “to promote a pro-abortion message.” The definition of promotion may be the underlying key in regard to this argument.

California’s main argument is that the Act is justified as a means to regulate the health care industry and because many anti-abortion clinics do not offer this information to clients, thus limiting a woman’s choices, the state needs to make sure such information is available at all the different facilities women may use. California Attorney General, Xavier Becerra says, “Information is power, and all women should have access to the information they need when making personal health care decisions.”

States have extensive authority to regulate doctors and medical professionals in order to protect patients from fraud and sub-standard care. Recently, however, doctors have won claims that state lawmakers have gone too far and were wrongly interfering with the doctor-patient relationship. The case to be heard by the Supreme Court deals with a conflict over California’s power to monitor the medical profession and the Constitution’s protection for freedom of speech. But the state is fighting two different cases, federally and at the state level. In October 2017, a Riverside County superior court judge ruled the law violated the free-speech provisions of California’s Constitution.

If the Supreme Court strikes down this California law on free speech grounds, it will become more difficult to regulate anti-abortion centers not just in California, but also in other states.

The First Amendment only offers protection from government censorship and whether or not California is acting as a censor by mandating that certain public information must be posted on their premises, may be difficult to determine given their delineated role of offering information to allow freedom of choice for pregnant women.

If the Supreme Court upholds California’s law on free speech grounds, it may create a clash between federal and state laws to regulate the industry. Perhaps it is time for this type of constitutional challenge at the federal level and for the Supreme Court to revisit the intention of the First Amendment and how it applies to society in the 21st century.

About Author

Kerrie Spencer is a staff contributor to Bigger Law Firm Magazine.

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