The First Amendment Case That Could Upend Abortion Law

Originally published in The Intercept on November 27, 2017.
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Do anti-choice activists have a constitutional right to trick vulnerable women seeking an abortion into stumbling instead into a facility run for the purpose of talking them out of one?

And if so, does the state have any right to require the facility to provide the women with basic information about their reproductive rights?

That’s the terrain that will soon be explored by the U.S. Supreme Court, which recently announced it will hear its first abortion-rights related case of the Trump-era. The National Institute of Family and Life Advocates, a nonprofit representing anti-choice pregnancy centers, is challenging California’s requirement that all such centers inform patients that the state provides free or affordable access to contraception, prenatal care, and abortion.

The centers — often called “crisis pregnancy centers” in an effort to conflate them with abortion clinics — must also disclose whether they are medically licensed or have medical professionals available. The law, the Reproductive FACT Act, was passed in 2015 after California’s legislature determined that roughly 200 crisis pregnancy centers across the state employed “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The National Institute of Family and Life Advocates argues that California’s law violates its clients’ First Amendment right to free speech by forcing the centers to advertise abortion-related messages against their religious beliefs.

The Arizona-based Alliance Defending Freedom, a conservative Christian legal advocacy group, is behind the suit. The ADF is also bringing Masterpiece Cakeshop v. Colorado Civil Rights Commission, the high-profile case headed to the Supreme Court next month that will determine whether a Christian baker can lawfully refuse to make wedding cakes for same-sex couples.

Like so many cases that wind through the Supreme Court, legal experts suspect the outcome will turn on Anthony Kennedy – a justice known for his strong support of First Amendment claims.

“This is a case that pro-choice advocates should worry a lot about,” Sam Bagenstos, a University of Michigan law professor, told The Intercept. “It is geared right at where Justice Kennedy is.”

Ilyse Hogue, president of NARAL Pro-Choice America, said the case “could set the stage for how courts treat abortion rights for decades to come” and represents the Court’s “first test on abortion rights with Neil Gorsuch on the bench.”

The passage of the Reproductive FACT Act was hailed as a landmark victory for reproductive rights. NARAL Pro-Choice California was the lead organizational sponsor for the bill, following a national report NARAL released showing how crisis pregnancy centers often mislead women seeking reproductive care. Black Women for Wellness and then-Attorney General Kamala Harris also helped push the bill forward, arguing that California has a responsibility to regulate the healthcare industry and ensure that all residents understand what services are available to them. California is one of several states that covers abortion with state Medicaid funds. Noncompliance with the Reproductive FACT Act comes with a penalty of $500 for first-time offenders, and $1,000 per subsequent violation.

Sen. Kamala Harris’s office did not return The Intercept’s request for comment on the lawsuit.

Crisis pregnancy centers first opened in the late 1960s when individual states began legalizing abortion. They didn’t attract much attention from Congress, though, until the late 1980s and early 1990s. Critics alleged that the centers used deceptive practices to trick pregnant women into coming in by pretending to be an abortion clinic, hiding the fact that they discourage abortion and don’t offer the service; supporters said the centers’ actions were both honest, and legal under the First Amendment.

Crisis pregnancy centers got a boost from the federal government with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Thanks to welfare reform, George W. Bush’s administration was able to funnel $60 million in federal abstinence-only funds to crisis pregnancy centers between 2001 and 2005, often doubling or tripling their annual budgets.

This flurry of activity attracted further attention from Democratic legislators. In 2006, a congressional investigation led by Rep. Henry Waxman, a Democrat from California, found that most crisis pregnancy centers funded by the federal government gave women false or misleading information. In 2008 NARAL also reported that an investigation they had launched into eleven crisis pregnancy centers across Maryland revealed that every center “provided misleading or, in some cases completely false, information.”

In 2009, following the Waxman and NARAL reports, Baltimore passed the first-ever legislation to reign in crisis pregnancy centers. Baltimore’s legislation mandated that the centers display signs that make clear they do not offer abortions or birth control referrals. New York City, Austin, and San Francisco passed similar laws shortly thereafter, and all were soon subject to legal challenges.

The authors of California’s Reproductive FACT Act said they studied these laws when drafting their own, and worked hard to craft legislation that could withstand constitutional muster. For example, California’s law just requires licensed centers to tell women what reproductive healthcare options are available to them, rather than compelling centers to say what they don’t provide.

Hawaii followed California’s lead this past summer, passing a similar law that requires crisis pregnancy centers to display the statement, “Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women.” Crisis pregnancy centers, with the help of National Institute of Family and Life Advocates, are now challenging Hawaii’s law in court.

Since California’s law has mostly been tied up in litigation, it’s hard to assess how effective it’s been in regulating crisis pregnancy centers.

“Within a week of it being signed we had five court challenges, four of them in federal courts,” said Amy Everitt, the state director of NARAL Pro-Choice California in an Intercept interview. “I can’t tell right now how well it’s working because it’s been held in this legal limbo. Our plan had been to wait until the court cases settled to assess how enforcement was going.” Everitt said that a bunch of cities and counties agreed to not enforce the law in exchange for the plaintiffs dropping them as named defendants.

However, in Los Angeles, city attorney Mike Feuer announced last summer that his office was indeed successfully enforcing the law. In May 2016 Feuer sent letters to reproductive health facilities in his jurisdiction informing them of their obligations. When investigators from the LA County Department of Business and Consumer Affairs found three crisis pregnancy centers not in compliance with the Reproductive FACT Act, Feuer sent them notices saying they had 30 days to get in line. Two of the three then complied, and when Feuer made clear he would seek a temporary restraining order to compel the third, the third also started following the law.

“I pledged to protect a woman’s right to have accurate information before she makes the most personal and sensitive of choices—and I meant it,” said Feuer at the time. “We will aggressively enforce the FACT Act, taking any action necessary against those who violate it.”

In July 2016, the Ninth Circuit Court of Appeals upheld California’s Reproductive FACT Act. “California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion,” Judge Dorothy W. Nelson wrote. She said the mandated disclosures do not “encourage, suggest, or imply” that a woman should get an abortion.

In their filing to the Supreme Court, the petitioners suggest that California is unfairly targeting crisis pregnancy centers. “The state, rather than using countless alternative ways to communicate its message, including its own powerful voice, instead compels only licensed facilities that help women consider alternatives to abortion to express the government’s message regarding how to obtain abortions paid for by the state,” the National Institute of Family and Life Advocates wrote.

Everitt of NARAL Pro-Choice California said she was surprised the Supreme Court agreed to hear the case.

David Gans, the director of the Human Rights, Civil Rights, & Citizenship Program at the Constitutional Accountability Center told The Intercept that he sees this lawsuit as part of “a new wave” of First Amendment cases where conservative groups claim “under the guise of freedom of speech” that they can’t be required to be complicit in something they are morally opposed to.

“In the past we’ve seen these arguments in the freedom of religion context, and I think what’s distinctive about both the Masterpiece case and this newer one is that the courts agreed to review them on freedom of speech grounds,” he said. “This highlights what I think will be a big thread in Supreme Court decisions.”

Eugene Volokh, a law professor at UCLA and an expert on First Amendment issues, told The Intercept that he doesn’t see the Masterpiece case as similar to the crisis pregnancy center challenge.

“If you tell people you’ve got to bake cakes for people on an equal basis, is that really a free speech requirement at all?” he asked. “But [in California] there’s no doubt that what the state is doing is trying to require various organizations, including organizations with an ideological mission, to basically convey the government’s message.”

Volokh says the Supreme Court has made clear that “requiring people to speak” poses a First Amendment problem, but that the Court has also suggested that the kind of speech that’s sought out by people because they have specialized expertise, what he refers to as “professional client speech,” may be more susceptible to regulation.

While the justices will have to weigh whether or not California’s disclosure requirements ask too much of these anti-abortion centers, Volokh said there is “not much by the way of guideposts” to figure out how the Court might rule. In Planned Parenthood v. Casey in 1992, for instance, Justice Kennedy upheld so-called “informed consent” requirements, although in that case they were disclosures aimed at deterring abortion.

“Kennedy is not always 100 percent consistent, but he’s in a weird place with this case,” said Bagenstos. “He has narrowly supported the right to choose abortion, but he’s obviously personally opposed and believes very strongly that there ought to be an opportunity to be persuaded not to choose it.” Though Bagenstos sees “a really strong argument” in favor of the law’s constitutionality, the plaintiffs, he says, surely recognize that these types of First Amendment arguments likely resonate with Kennedy.

Legal experts note that a win for the crisis pregnancy centers, could, in the end, come back to bite them. In recent years many states have passed laws requiring abortion clinics to provide patients with misleading or medically inaccurate facts, such as telling women that abortions may hurt their mental health or increase their risk of breast cancer. A win for the plaintiffs could make it easier for abortion clinics to challenge these sorts of mandates.

As Gans put it, “Anti-abortion groups urging to intervene and strike down California’s law on First Amendment grounds could help lead to an ideological outcome that perhaps the plaintiffs might not want.”

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