A New Battle in the War Over Reproductive Rights

Given that a conservative majority may soon reemerge on the Supreme Court, conservative legislators may feel emboldened to pass new laws restricting a woman’s right to abort. But progressive legislators in California, Hawaii, and Illinois have responded by demonstrating their commitment to providing women with abortion access by enacting laws requiring pro-life centers to educate patients about low-cost and free abortions provided by the state.

Today, the Supreme Court granted certiorari in National Institute of Family and Life Advocates v. Becerra, which challenges California’s version of these mandated abortion-related disclosures––the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act (the “Act”). The case will decide whether a state can compel pro-life “crisis pregnancy centers” to provide clients with information about state-funded abortions and would resolve the current circuit split about what level of scrutiny courts should apply to abortion-related disclosure cases.

In Planned Parenthood v. Casey, the Court affirmed a women’s right to abort first announced two decades earlier[1] and held that courts must apply the undue burden test to abortion restricting mandates.[2] The test invalidates any laws whose “purpose or effect” is “to place a substantial obstacle in the path of a woman seeking an abortion.”[3] Gonzalez v. Carnhart, however, expanded the state’s power to constrain the right to abort in 2007 by upholding Congress’ ban on “partial-birth abortion,” which was the most common form of second trimester abortion at the time.[4] While the Court’s subsequent decision in Whole Woman’s Health v. Hellerstadt­­ was a nationwide victory for abortion access in 2016, invalidating Texas laws responsible for closing almost half of the state’s abortion clinics,[5] only three clinics have re-opened since the decision and Texas lawmakers have staunchly reaffirmed their condemnation of abortion through continued restrictions to access.

Becerra and the Court’s Compelled Speech Doctrine

In the latest attempt to curtail a women’s right to abort, petitioners in Becerra claim that California’s FACT Act abridges their freedom of speech by unconstitutionally compelling pro-life centers to express the state’s message on how to obtain abortions.

The Court has established that freedom of speech includes the right not to speak[6]; but, it has only invalidated government mandates that compel speech when they affect the speaker’s own message.[7] In contrast, claims of impermissibly compelled speech have failed where the speaker’s own message was not affected by the compelled speech. For example, in Rumsfield v. Forum for Academic and Institutional Rights, petitioners argued that the Solomon Amendment––a federal law that withheld federal funds from various schools that declined to provide information to students about military recruiters––was unconstitutional because it forced the schools to express views contrary to their belief that employers should not discriminate against homosexuals.[8] The Court rejected the argument because, inter alia, the schools’ own message was not “affected by the speech it was forced to accommodate.”[9] When the schools allowed the military to recruit on campus, they were not themselves “speaking” because “[n]othing about recruiting suggest[ed] that law schools agree[d]” with the recruiter’s speech.[10]

Similarly, in Becerra, California’s law does not require clinics to communicate any specific message. It merely requires: (1) licensed clinics to post a notice stating, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number],” and (2) unlicensed centers post and distribute through advertisement a notice stating, “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.”

Petitioners argue that the notices force the centers to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.” But the centers already confuse patients by misleading them into believing that abortions cause future miscarriages and that there is no need to obtain an abortion because 30-50% of pregnancies already end in “spontaneous abortion.”

The FACT Act does nothing more than ensure that the centers’ patients receive accurate, comprehensive information about their pregnancy choices. And even if the mandated notices articulate the government’s own message, shouldn’t states be able to expressly approve of abortion since Casey allows them to expressly censure the practice?[11]

Notably, the Court will also address the gaps in its compelled speech jurisprudence in Masterpiece Cakeshop v. Colorado Civil Rights Commission this term, which will be argued by the same lawyers arguing Becerra. Masterpiece presents the question of whether a Colorado state law, which required a baker to bake a wedding cake for a same-sex couple, impermissibly compels speech. Petitioner’s claim in Masterpiece is that the Colorado state law unconstitutionally forces him to communicate ideas contrary to his biblical beliefs. As in Becerra, such an argument should fail because Colorado’s law does not compel the petitioner to adopt or advance any particular message by requiring he bake a cake.

Strict or Intermediate Scrutiny?

The Court was likely prompted to grant certiorari in Becerra to resolve a circuit split concerning what level of scrutiny should be applied to abortion-related disclosure cases. Determining which test applies could be dispositive, as few laws subject to strict scrutiny survive. Petitioners in Becerra argue that the Ninth Circuit erroneously examined the constitutionality of California’s law under intermediate, rather than strict, scrutiny. The Ninth Circuit acknowledged that circuits are not in agreement as to what level of scrutiny should be applied to abortion-disclosure cases and agreed with the Fourth Circuit that Casey did not “announce the proper level of scrutiny to be applied to abortion regulations that compel speech.”[12]

Petitioners aver that California’s FACT Act should be subject to strict scrutiny and that the Ninth Circuit’s decision runs counter to the Court’s 2015 decision in Reed v. Town of Gilbert, Ariz.[13] But petitioners reasoning is not so axiomatic. Indeed, the Reed Court held content-based laws presumptively unconstitutional unless justified under strict scrutiny.[14] But the Ninth Circuit noted that Reed does not demand California’s content-based regulation be evaluated under strict scrutiny because the FACT Act falls under an exception; that is, those “historical and traditional categories of content-based restrictions that are not subject to strict scrutiny.”[15] The court held that because the Act “does not discriminate based on the particular opinion, point of view, or ideology of a certain speaker” as it “applies to all licensed and unlicensed facilities, regardless of what, if any, objections they may have to certain family-planning services,” [16] it is “viewpoint neutral.” [17] Thus, it would be inappropriate to analyze the Act under strict scrutiny, even though it is a “content based regulation.”

In line with the Fourth and Third Circuit,[18] the Ninth Circuit instead applied intermediate scrutiny to the Act.[19] The court reasoned that intermediate scrutiny was consistent with the fact that “First Amendment protection of a professional’s speech is somewhat diminished,” but professionals also do not “simply abandon their First Amendment rights when they commence practicing a profession.”[20] The Act survived intermediate scrutiny because the state had a substantial interest in “ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion,” and the required notices were narrowly tailored to that interest because they inform the reader “only of the existence of publicly-funded family-planning services.”[21]

Because several courts have similarly rejected evaluating abortion-related disclosure laws under strict scrutiny,[22] which test should apply in cases such as Becerra is far from obvious. Whether the Court will ultimately rule in California’s favor remains to be seen, as the Court’s abortion decisions often depend upon the Justices’ personal beliefs.

The Court’s decision to hear Becerra aptly follows a scathing appeal to the Court, filed by solicitor general Noel J. Francisco, asking the Justices to vacate a lower court’s order allowing an undocumented and unaccompanied teen to obtain an abortion. The lower court’s decision followed the federal government’s refusal to transport the minor to an abortion clinic after apprehending her at the border, notwithstanding a Texas judge’s grant of judicial permission for the abortion. Francisco argued that the lower court’s decision should be vacated because the government “is not obligated to facilitate abortion.”

At a time when the Trump administration continually threatens a woman’s right to abort, the Court should uphold California’s abortion-disclosure laws and embrace the opportunity Becerra presents for the Court to defend this well-established, fundamental civil liberty.

[1] Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973)

[2] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).

[3] Id.

[4] Gonzales v. Carhart, 550 U.S. 124 (2007).

[5] See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[6] See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (holding unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag); Wooley v. Maynard, 430 U.S. 705 (1977) (holding unconstitutional a state law requiring drivers to display the state motto on their license plates).

[7] See e.g. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (holding unconstitutional a state law requiring a newspaper to provide give (?) for political candidates who had been criticized by the newspaper to respond because it interfered with the speaker’s desired message), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572–574 (1995) (holding unconstitutional a state law ordering that a parade include a particular group because the group would “alter the expressive content of th[e] parade.”)

[8] Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 48–49 (2006).

[9] Id.

[10] Id.

[11] See Casey, 505 U.S. at 877 (1992) (noting that States are permitted to pass regulations that “express profound respect for the life of the unborn” so long as they “are not a substantial obstacle to the woman’s exercise of the right to choose”).

[12] Stuart v. Camnitz, 774 F.3d 238, 249 (4th Cir. 2014).

[13] See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015).

[14] Id.

[15] United States v. Swisher, 811 F.3d 299, 313 (9th Cir. 2016) (discussing Reed and noting examples that illustrate that “[e]ven if a challenged restriction is content-based, it is not necessarily subject to strict scrutiny” (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992)).

[16] Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 835 (9th Cir. 2016).

[17] Id.

[18] See generally Stuart, 774 F.3d at 249 (applying intermediate scrutiny when physicians challenged an abortion-related disclosure law requiring them to describe the fetus to women seeking an abortion because it was a violation of their First Amendment rights); King v. Governor of the State of New Jersey, 767 F.3d 216 (3d Cir. 2014) (holding that intermediate scrutiny should apply to a law prohibiting therapy intended to change patients’ sexual orientation because “a licensed professional does not enjoy the full protection of the First Amendment when speaking as part of the practice of her profession”).

[19] Harris, 839 F.3d at 837.

[20] Id. at 840 (citation omitted).

[21] Id. at 841–42.

[22] See e.g. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th Cir. 2012) (applying a reasonableness test to state regulations requiring a physician who is about to perform an abortion to, inter alia, “perform and display a sonogram of the fetus [and] make audible the heart auscultation of the fetus for the woman to hear”); Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 734–35 (8th Cir. 2008) (applying a reasonableness test to state regulations requiring the “performing physician provide certain information to the patient as part of obtaining informed consent prior to an abortion procedure”).

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Brie is a 2L at HLS. She is interested in human rights and the effects of mass incarceration on civil rights and civil liberties. Brie is a member of Harvard's Making Rights Real: The Ghana Project Clinic and is active in the Harvard Prison Legal Assistance Project. Prior to law school she taught English in Cordoba, Spain and then taught high school AICE Psychology in Boca Raton, Florida. During her 1L summer, she interned for the Honorable Richard J. Sullivan in the Southern District of New York.

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