The Masterpiece Cakeshop case, with its free speech claim by the baker who doesn’t want to bake, received enormous attention, both before and after this week’s Supreme Court argument. And no wonder: The baker’s position that no law can force him to lend his “art” to a use to which he objects — celebrating a same-sex wedding — would, if accepted, invite a flood of “I would prefer not to” opt-outs from anti-discrimination laws meant to apply to all.
Another free speech case on the Supreme Court’s calendar with equally profound implications hasn’t yet caught the public’s eye, even though it is likely to be the only abortion-related case on the court’s docket this term. The justices accepted the case, National Institute of Family and Life Advocates v. Bercerra three weeks ago, and will hear it this winter.
Just as Masterpiece Cakeshop is about far more than bakers and their creative expression, this case transcends the subject of abortion. The First Amendment question it presents is doctrinally complex but can fairly be boiled down to this: when is it unconstitutional to require an entity that deals with the public to tell its customers the truth?
At issue are requirements that a 2015 California law imposes on “crisis pregnancy centers,” described in the legislative record as places that “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” through “intentionally deceptive advertising and counseling practices.”
These centers exist all over the country, and in many states are more numerous than actual abortion clinics. Women find their way to them by looking up “abortion” in the telephone book or by responding to ads on mass transit (“Pregnant? Need help?”). California has some 200 of them, most, like those that sued the state in this case, run by organizations with religious-based opposition to abortion.
The main plaintiff, known as Nifla for short, is a Virginia-based national organization that describes its mission as to “empower the choice for life.” It operates 111 pregnancy centers in California alone, of which most are licensed medical clinics and the rest are unlicensed offices that provide self-administered pregnancy tests, referrals to doctors for prenatal care, and free baby supplies such as diapers.
California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act, known as the FACT Act, has separate requirements for the medical clinics and the unlicensed offices. The licensed clinics have to provide a notice informing patients that “California has public programs that provide immediate free or low-cost access to comprehensive services (including all F.D.A.-approved methods of contraception), prenatal care and abortion for eligible women.” (Translation: if you were enticed here under false pretenses, the state is ready to help you get what you want.)
The required notice, which includes a phone number to call, must be posted in the waiting room or shown to patients when they come in. Unlicensed nonmedical offices must post a different notice: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”
What could be wrong with that? As First Amendment doctrine has evolved recently, plenty. Just as Masterpiece Cakeshop isn’t an easy case but should be (in my opinion, if someone wants to be able to pick and choose his customers, he should bake for his friends in his own kitchen and stop calling himself a business), the Nifla case is likely to prove harder than the United States Court of Appeals for the Ninth Circuit acknowledged in October 2016 when it denied the pregnancy centers’ request for an injunction to block the law from taking effect.
In agreeing last month to hear Nifla’s appeal, brought by the religious-right powerhouse Alliance Defending Freedom, the justices simplified the case somewhat. Nifla had argued that the law violated not only its First Amendment right not to be compelled to convey an unwanted official message, but also its right to the free exercise of religion. The Supreme Court agreed to address only the speech issue.
In denying the injunction, the Ninth Circuit said the law satisfied California’s “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.” In a brief that unsuccessfully urged the Supreme Court not to hear the appeal, California’s attorney general, Xavier Becerra, explained the policy behind the law: More than half of the 700,000 pregnancies in the state every year are unintended. Many pregnant women can’t afford medical care and are unaware that California’s Medi-Cal program offers a full range of state-financed options that include prenatal care, delivery and pediatric coverage or, if a woman chooses it, abortion. Mr. Becerra said the Legislature had concluded that delay and confusion in the absence of the information the required notices provide were not in a pregnant woman’s interest, no matter what path she eventually chose.
Logical policymaking of this sort doesn’t carry much water with the current Supreme Court when placed alongside a First Amendment that jumped the shark early in the tenure of Chief Justice John G. Roberts Jr. A 2011 decision, Sorrell v. IMS Health struck down a Vermont law that prohibited pharmacists from relaying prescription information to pharmaceutical companies; the companies wanted the information so they could pitch newer high-priced drugs to doctors who were prescribing older and cheaper ones. The Vermont Legislature believed that keeping this information out of Big Pharma’s hands would lower medical costs. Maybe so, Justice Anthony M. Kennedy wrote for the majority, but “speech in aid of pharmaceutical marketing, however, is a form of expression protected by the free speech clause of the First Amendment.”
And five years ago, after the federal appeals court in Washington struck down a Food and Drug Administration requirement for cigarette packaging to contain graphic images of the health wreckage caused by smoking (“compelled speech,” the tobacco industry cried), the Obama administration decided that an appeal to the Supreme Court would be hopeless and didn’t bother to file one.
The federal appeals court in New York got the message a few years ago when reviewing a New York City law similar but not identical to California’s FACT Act. While upholding the requirement for pregnancy centers to reveal whether they employed medical professionals, the appeals court struck down the portion of the law that required the centers to post a notice that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider.” The court said it was “concerned that this disclosure requires pregnancy services centers to advertise on behalf of the city.”
In upholding the California law, the Ninth Circuit fastened on a distinction between the state’s law and New York City’s. The California law, it observed, “does not use the word ‘encourage’ or other language that suggests the California Legislature’s preferences regarding prenatal care.” The Ninth Circuit viewed the licensed-clinic notice requirement as a regulation of “professional speech,” which it said deserved less robust protection than some other kinds of speech.
The Supreme Court has approached the question of whether there is such a First Amendment category as “professional speech,” but hasn’t yet developed a coherent theory, leaving it as one of the hotter topics in First Amendment law. In a recent law review article, Rodney A. Smolla, a First Amendment expert who is dean of Widener University’s Delaware Law School, argued that there was “no persuasive justification for recognizing the doctrine.”
Regulating the speech that takes place in doctors’ offices is an issue that cuts both ways in the abortion context. Unable to prevent women from having abortions, anti-abortion politicians have done their best to constrain and regulate doctors, in some states even requiring doctors to recite to their abortion patients a state-mandated script that contains such falsehoods as a warning that abortion places women at a higher risk for suicide.
Nifla’s objection to the California law as government-compelled speech sounds an awful lot like the objection that doctors in South Dakota raised unsuccessfully in the lower courts to that state’s extensive mandatory-counseling law. As Dahlia Lithwick and Mark Joseph Stern pointed out in a smart piece on Slate last month, a Supreme Court decision striking down the California law would logically place the mandatory counseling laws in constitutional jeopardy — certainly those that require statements that lack factual support, and maybe others as well.
The Trump administration has not yet entered this case, but it would be very surprising if it stayed away. Matthew Bowman, who argued for Nifla in the Ninth Circuit as senior counsel for Alliance Defending Freedom, where he ran its Life Litigation Project, is now a senior lawyer in the Department of Health and Human Services, where he played a lead role in dismantling the Obama administration’s contraception mandate on employer-provided health insurance. In the topsy-turvy world in which we’re living, there will be something fitting about this truth-challenged administration arguing to the Supreme Court that a law requiring the truth is unconstitutional.