California Requires Pro-Life Pregnancy Clinics to Provide Information About Abortion Access. California enacted legislation requiring that state licensed crisis pregnancy centers provide clinic visitors with notice, including telephone contact information, that the state provides free or low cost services, including abortion. California also required unlicensed clinics to provide notice of their unlicensed status. The California Reproductive Freedom Accountability, Comprehensive Care and Transparency Act (FACT Act) imposes its notice requirements only on pro-life entities, as state sponsored or non-pro-life clinics are excepted.

The Pro-Life Entities Failed to Persuade the Lower Federal Courts. Petitioners unsuccessfully sought federal injunctive relief in on First Amendment grounds, a result affirmed by the Ninth Circuit Court of Appeals, which held that petitioners could not demonstrate a likelihood of success on the merits where the licensed notice requirements met the low level of scrutiny attaching to “professional speech” and the unlicensed notice requirements satisfied any level of scrutiny

The Ninth Circuit’s characterization of the statute as regulating “professional speech” permitted avoidance of the strict scrutiny mandated by presumptively unconstitutional content based speech restrictions.

The Supreme Court Disagrees. The Supreme Court has concluded that the petitioners can likely succeed on the merits of their claims, has reversed the judgment of the Ninth Circuit, and has remanded the matter for further proceedings.

The concern is the speech, not the speaker. The Supreme Court observed that the Court has never recognized this new category of “professional speech” subject to less rigorous review. States may regulate professional conduct even if such regulation incidentally burdens speech. Deferential review has not, however, turned on who is speaking, but on the factual nature of disclosures concerning commercial matters.

The Supreme Court concluded that the FACT Act had little to do with regulation of professional conduct but instead regulated speech as such. While the Court refused to foreclose the potential to recognize professional speech at another time, the Court observed that the dangers of speech regulation — that the government will use its power to suppress disfavored ideas — applies to “professional speech.” An inability to discuss good information,or the distortion of information, or the provision of bad information, while particularly deadly in medical settings, easily can be seen as diminishing the “marketplace of ideas” in which robust discussion ultimately serves the truth.

Rights as significant as those guaranteed by the First Amendment cannot depend on professional licensure. Permitting such limitations would provide the state with a tool that could be wielded to promote invidious discrimination against unpopular ideas.

Even if “professional speech” were recognized, the Court’s conclusion would not change, as the statute could not survive intermediate scrutiny, being “wildly under-inclusive” because of its application, after unsupported exclusions, only to pro-life entities. California could have addressed its concerns about information itself without burdening any private speech.

“Maybe” Measures Disfavored. The Court found California failed to meet its burden of establishing that the unlicensed status notice addressed anything other than a hypothetical harm, an unacceptable result. Broad prophylactic measures risk chilling protected speech. Nothing suggested that women were unaware of clinics’ licensure status. Notice of the absence of licensure was not needed for services for which licensure was not required.

Even had a justification for the measures been found, the state cannot compel non-state speakers to adopt a government script that unduly burdens speech. The Court found California’s distinctions among services between the license and unlicensed notice requirements to be odd. The FACT Act affects the speech of some speakers, but not others, a disfavored result, and occupies space already addressed by the state licensure regulations The detailed parameters and specifics of the notice requirements underscore the state-imposed burden, particularly as they threaten to drown out a clinic’s own chosen message.

Justice Kennedy Warns of the Dangers of the Authoritarian State. Justice Kennedy joined the majority opinion in full, applauding the Court’s restraint in making its determination without addressing the viewpoint discrimination issue presented. The Court’s determination on other grounds in no way intimates that the law would be acceptable had a broader base and broader coverage been employed. The design and structure of the act embodies viewpoint discrimination and exemplifies the threat presented when the government seeks to supplant individual speech, thought, and expression. The state’s intent — to compel speech contrary to deeply held beliefs — coupled with its apparent targeting of beliefs disfavored by the state — is far from “forward thinking” but instead illustrates the ills of authoritarian government, avoidance of which was and is a cornerstone of the Constitution.

Ill at Ease with the Majority’s Reasoning, the Dissent Fears a Cascade of New Challenges. Justice Breyer and three others foretell the doom of many disclosure regulations as a result of the Court’s decision. Justice Breyer and his colleagues question why, if information must be provided to obtain informed consent, information cannot be required to be provided about available services and licensure status.

NIFLA v. Becerra, No. 16-1140 June 26, 2018