In a case in which California pregnancy-support centers argued that the state of California had enacted a law compelling them to speak by requiring them to inform women where they can get an abortion, oral arguments in the Supreme Court on Tuesday included only a few passing references to free speech precedents. Instead of the many free speech cases of the Supreme Court the parties had included in their briefs, the major question discussed was what California could require of medical facilities under the state’s authority to regulate the practice of medicine.
California enacted a law in 2015 requiring certain centers licensed by the state of California to post or hand out information informing their women clients about free or low-cost “comprehensive family planning services” including contraception and abortion. Centers that offer ultrasounds/sonography, pregnancy testing, and that advertise about those two services are included under the law as “licensed covered facilities.” Unlicensed centers are required to post a notice that they are not licensed but need not post a notice about the availability of abortion.
In its brief in the Supreme Court, California argued that its law was no different from a notice approved by the Supreme Court in the case of Planned Parenthood v. Casey (1992), the majority opinion of which was co-authored by Justice Anthony Kennedy (and of which the other two co-authors are no longer on the Court). The particular provision that was upheld by the Court in Casey and that became a primary topic of discussion in oral argument yesterday concerned a provision of Pennsylvania law requiring a 24-hour waiting period and the “informed consent” of the woman seeking an abortion.
Thus, an abortion-limiting provision previously upheld by the Court became the basis for sharp questioning of the Alliance Defending Freedom’s Michael Farris, who represented the pregnancy-support centers. Several of the justices focused on that provision. As Justice Stephen Breyer repeatedly stated, “What is good for the goose is good for the gander.” That is, Pennsylvania’s law requiring delay and informed consent before an abortion was not different from California’s required notice of the availability of abortion. Justice Ruth Bader Ginsburg essentially said that the California law is “also informed consent.” Justice Elena Kagan remarked that the state was only requiring the centers to inform women of their “options.” Justice Sonia Sotomayor said that California was just requiring “consulting about a medical procedure, and then asked, “How is that any different from Casey?”
Farris answered that the law unfairly “targeted” certain non-profit centers that oppose abortions, while allowing exemptions for other medical centers. And he distinguished Casey by arguing that abortion is a “medical intervention, a surgery” where informed consent is necessary and justified, whereas, “The services provided by our licensed centers are not medical interventions.” He said the law “is directed at disfavored speakers with disfavored viewpoints.”
Joshua Klein, deputy solicitor general of California, took the podium for the state of California and immediately argued that California’s required notice, a “disclosure,” was “very much like that of the disclosure in Casey.” He said that the “goal of the statute is to identify women who are seeking pregnancy care and appear unable to pay for it.” Justice Samuel Alito asked why “does the law apply to one and not the other” kind of center and also asked why individual doctors are exempt. And Justice Kagan inquired why the state of California does not apply its general disclosure requirements “generally,” but seems “to apply them to some speakers whose speech we don’t much like.”
Klein replied that the disclosure is directed at women who are seeking medical care, “not at any particular viewpoint.” Justice Gorsuch wondered why if the state was trying to educate women about their rights, it did not use “other available means to provide messages,” for, he said, “it’s pretty unusual to force a private speaker to do that for you.”
Justice Kennedy asked whether an unlicensed center that took out a billboard that simply said “choose life,” would be required to include the notice that it is not licensed? When Klein answered affirmatively, Kennedy responded that, “This is undue burden in that instance and that should suffice to invalidate the statute.” He later got Klein to agree that “mandating speech that the speaker would not otherwise give … alters the content of the speech,” but Klein also rejoined that the disclosure is not addressed to the person “who is providing the medical services” but “to instances where the services that are offered and provided could make a woman … unable to evaluate what she is doing.”
There were few and only passing references made to free speech precedents of the Court. California’s Klein argued that the case of Zauderer v. Office of Disciplinary Counsel (1985), a case in which the Court upheld the state of Ohio’s discipline of an attorney for some of his advertisements offering his legal services, stood for the principle that California could regulate the speech of the centers. But the Zauderer Court, holding that the advertisements were “commercial speech” protected by the First Amendment, also overturned other of Ohio’s disciplinary measures against the attorney. In their brief in the Court, the pregnancy-support centers had argued that they are non-profit and not engaged in commercial speech. Farris mentioned Miami Herald v. Tornnillo (1974), in which the Court unanimously ruled that a Florida statute requiring newspapers to give political candidates a right of reply in their pages was unconstitutional.
Overall, four of the justices, Breyer, Ginsburg, Kagan, and Sotomayor, seemed to be convinced that the Casey informed-consent provision ought to apply to this case. Besides Justice Kennedy, of the other eight justices who were members of the Court in the 1992 Casey case, only Justice Clarence Thomas is still on the Court.
Justice Kennedy, the co-author of Casey, could be the deciding vote here, and of all the justices, he asked the most aggressive questions on the issue of free speech. There was some discussion, especially by Justice Breyer, about whether the case was premature because there had been no trial but only a rejected injunction below. That would be a basis for returning the case and not issuing a ruling.
