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March 21, 2018

SCOTUS hears oral arguments in California crisis pregnancy center case

Daily Briefing

    The Supreme Court on Tuesday heard oral arguments in a case that questions whether requiring crisis pregnancy centers (CPCs) to post information about publicly funded abortion care and contraceptives violates free-speech rights guaranteed under the First Amendment.

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    Case details

    The case before the Supreme Court centers on a California law, which took effect in 2016, that requires certain licensed medical centers to inform patients that the state has publicly funded options for abortion and contraception, regardless of whether the centers disagree with those services on religious grounds. The law requires certain unlicensed centers, such as those that offer pregnancy testing or ultrasound imaging, to clearly inform clients on-site and in advertisements that they do not have licensed medical providers.

    Hundreds of California-based CPCs, which typically counsel women against abortion, filed a lawsuit challenging the requirements, arguing that the law singles out CPCs based on their views and violates their First Amendment rights by requiring them to post information that contradicts their missions. The groups also argue that the law's requirement for unlicensed centers is burdensome and compels CPCs to "begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message."

    A federal district court ruled against the CPCs, and that ruling was affirmed by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. The plaintiffs then petitioned the Supreme Court to hear the case, noting that the U.S. Court of Appeals for the 2nd Circuit had struck down a similar requirement in a New York City ordinance.

    SCOTUS hears oral arguments

    During the oral arguments, several Supreme Court justices expressed concern that California's law appears to be designed to target CPCs that oppose abortion.

    Justice Samuel Alito said the California law might appear neutral, but it contains several exemptions that seem to target only CPCs that oppose abortions. Alito asked California deputy solicitor general Joshua Klein whether "it [is] possible to infer intentional discrimination" from the state law.

    Justice Elena Kagan raised the same concerns, asking whether the state law applied exclusively to "speakers whose speech we don't much like." Klein said the state law applies to places where it would be useful to women who are pregnant.

    However, some of the courts justices compared the requirement to state laws requiring abortion providers to advise women about alternatives. The Supreme Court in 1992 upheld those laws as part of the Planned Parenthood v. Casey ruling. Justice Stephen Breyer said, "If a pro-life state can tell a doctor you have to tell people about adoption, why can't a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?"

    Michael Farris, an attorney for the CPCs, pushed back on that framing, saying there is a legitimate need for laws regulating medical providers, but there is no such need to regulate unlicensed CPCs that counsel women.

    However, Justice Sonia Sotomayor said many of the unlicensed CPCs offer ultrasounds and pregnancy tests. "I don't know what an ultrasound is, if not a procedure. I don't know what a pregnancy test is if not a procedure," she said.

    Several justices also questioned the constitutionality of the law's requirement for unlicensed centers. Justice Anthony Kennedy said California's law appears to place an undue burden on CPCs by requiring the facilities and any advertisements bearing the slogan "Choose Life" to disclose they are an unlicensed center in large font and in multiple languages. Justices Sotomayor and Kagan also expressed concerns about that portion of the law. Sotomayor said, "That seems to me more burdensome and wrong."

    According to Politico, Klein acknowledged that some applications of the law could be deemed unconstitutional, but he asked the justices to let the lower courts address those specific concerns.

    The Supreme Court is scheduled to rule on the case by the end of June.  

    What the ruling could mean for providers

    The American Medical Association, which has filed a brief in defense of the state, said it hopes the justices will use this case to set a clear legal standard for state laws regarding communications between providers and their patients. AMA noted that providers have been subject to several state laws dictating how they can discuss certain health topics, such as the medicinal benefits of marijuana or firearm storage in patients' homes. AMA said such laws, including California's law governing CPCs, should be subject to "strict scrutiny." AMA said,  "Physicians should not lose their right to communicate freely with their patients because the physicians may explicitly or implicitly converse with their patients on matters contrary to a political position preferred by the government" (Totenberg, NPR, 3/20; ABC News, 3/19; AP/CBS, 3/20; Chung, Reuters, 3/20; Wheeler, The Hill, 3/19; Stohr, Bloomberg, 3/19; Wolf, USA Today, 3/20; Baker, "Vitals," Axios, 3/20; Howe, SCOTUS Blog, 3/14; Gerstein, Politico, 3/20; American Medical Association brief, accessed 3/21; ).

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