On June 26 the Supreme Court overturned a lower court ruling and invalidated a California law that required certain signage to be displayed by so called “crisis pregnancy centers”, facilities that offer certain services to women with unplanned pregnancies, with the aim of stopping abortions. The ostensible legal motivation behind the ruling was that the law violated the free speech of the centers, but that only makes sense for half of the decision. In reality this was a fairly straightforward pro-choice v. anti-abortion case, and the majority of the court made a decision that is solidly anti-abortion.
Crisis pregnancy centers are usually religiously run and funded organizations that offer pregnancy testing, counseling, and sometimes limited ultrasound and other services to women who have unplanned pregnancies. These centers exist in order to dissuade women from terminating pregnancies, and a number of them have been documented using tactics that are misleading, both about abortion and about the nature of the centers themselves. A 2017 study of centers found that “some of the information provided was medically incorrect and could be harmful for those in need of care.” And “Despite the centers’ anti-abortion mission, 17 percent of the websites included the words “options,” “choice,” or “abortion” in the website name, while less than half (42 percent) stated clearly that the centers do not provide or offer referrals for abortions.”
In order to curb these practices in 2016 California passed the Reproductive FACT Act requiring licensed crisis pregnancy centers to display signs and language on their websites alerting potential clients that the state of California offered free and low cost medical services, specifically abortion. The law also stipulated that “Unlicensed facilities that advertise and provide pregnancy testing and care must advise clients, at the time they are seeking or obtaining care, that these facilities are not licensed to provide medical care.”
The case National Institute of Family and Life Advocates DBA NIFLA, Et Al v. Becerra, Attorney General of California Et Al, challenged both aspects of the law and the plaintiffs included both medically licensed and unlicensed pregnancy crisis centers. In terms of the first part the Supreme Court decision makes sense. Organizations that seek to encourage people to continue unplanned pregnancies have a right to exist, people have a right to anti-abortion opinions and to seek to advance that agenda. By specifically forcing the centers to display signs relating to providing abortion, against their beliefs, the California law was a violation of their free speech.
However, the second part of the Supreme Court decision does not have anything to do with the legal right to free speech. The lCalifornia law simply required facilities that offered services related to a medically relevant condition, pregnancy, to openly disclose that they are not medically licensed. This is well within the range of the other types of “speech” that our laws allow to be limited or required for simple safety reasons. Not only are you not allowed to yell “fire” in a crowded theater, theaters are required to post “EXIT” signs in case there is a fire, neither of these is seen as a violation of free speech.
Other places that are not hospitals or doctors offices, but that deal with medical issues or procedures have a range of legal requirements placed on them. In California and most other states medi-spas, businesses that offer medical beauty treatments like Botox injections, are governed by dozens of laws about who can perform procedures, licensing, involvement of medical professionals, and also signage. So far no one has claimed this is a violation of their free speech. This is reasonable because a badly done Botox injection can have very serious consequences. Pretending to be a medical provider and lying to people about the dangers of terminating a pregnancy as a means to scare or delay them into not getting an abortion can also have serious consequences. The only logical reason that a facility that is not a licensed medical provider would not want to disclose that to potential users is because they want people to believe that they are a medical provider.
Another good litmus test for the justification used in a legal case is to ask would this justification still work if applied to a different issue? If this case were about vaccinations instead of abortions it may have gone differently. For instance anti-vaccination groups could theoretically set up facilities near pharmacies and doctors offices, and give these facilities names like “Vaccine Choice Providers” or “Flu Inoculation Care Center”. Instead of potentially life saving vaccines they would of course provide users with “counseling” that consisted of lies about the dangers of vaccinations. If a state required that these centers disclose that they did not provide any medical services, would the Supreme Court rule that a violation of their free speech? It seems unlikely. Failing this test illustrates that the second half of the Supreme Court ruling in this case was not really about free speech, and was not legally in keeping with how the free speech laws and precedents of the U.S. are applied in other instances.
This is a big win for crisis pregnancy centers and other anti-choice and anti-family planning proponents not just in California but nation wide. Many state governments already actively fund these centers, and in those that don’t it will be harder to regulate them after this decision. It’s already being anticipated that a future challenge to a similar Hawaii law will also be successful. And of course because this was framed as a free speech issue it doesn’t just make it harder for people to get access to medical care during a pregnancy, it also empowers anyone else who wants to use misrepresentation and false information to push their agenda, whatever that agenda may be.