BLOGA View from the Supreme Court: Highlights from NIFLA Oral Arguments

By Jordan Lorence Posted on: | March 22, 2018

Cold rains outside the Supreme Court contrasted with the hot debate on freedom of speech inside the court on March 20, as the justices heard oral arguments in the case of NIFLA v. Becerra. This case challenges a California law forcing pro-life pregnancy centers to display a message pointing the way to obtaining information about state-funded free or low-cost abortions.

Politico summarized the oral arguments this way: “A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.”

Highlights from Oral Arguments

ADF President, CEO, and General Counsel Michael Farris opened oral arguments on behalf of the pro-life pregnancy centers by saying:

California took aim at pro-life pregnancy centers by compelling licensed centers to point the way to an abortion and imposing onerous advertising rules on unlicensed centers that do not provide ultrasounds or any other medical services. The state then provided exemptions for all other medical providers who serve pregnant women. This law targets a particular topic of discussion, employs compelled speech, and is directed at disfavored speakers with disfavored viewpoints.

Farris pointed out how the California Legislature “gerrymandered” (meaning that it manipulated the boundaries of who must provide) the notice requirement for licensed medical facilities so that it only applies to pro-life licensed centers. He explained how it applies only to “nonprofit community clinics” and exempts doctors in private practice, exempts nonprofit clinics “that are in general practice … even though they serve pregnant women,” and exempts nonprofit clinics that primarily serve pregnant women so long as they participate in a state program “which requires [them] to dispense abortifacient drugs.”

Basically, the law exempts everyone except pro-life pregnancy centers.

The law also requires unlicensed centers to post disclaimers declaring that they are not licensed medical facilities. These centers never claim to be medical facilities, and the disclosure wrongly implies they need a license to do their work. But people do not need a license to give away diapers, home pregnancy kits, and baby bottles or to talk to pregnant women about their options.

Farris pointed out how California’s law requiring the disclaimers makes advertising practically impossible. These requirements include putting the disclaimer in font sizes as large or larger than the main text, and in multiple languages, even when the main ad is not in that language. He concluded that those requirements are “not an effort to inform people.” They are designed “to clutter the ad and drown out [its] message.”

Justice Kennedy asked a series of questions about those requirements, and at the end of his questions, said that they appear to create “an undue burden” and “that should suffice to invalidate the statute.” Justice Ginsburg later in the oral argument made a similar comment: “It is one thing just to say: We are not a licensed medical provider. But if you have to say that . . . in 13 different languages, it can be very burdensome.”

Following Farris’s arguments, the attorney for the State of California argued in defense of the law.

Justice Sotomayor asked whether the ad of an unlicensed center that merely said “Pro-life” would trigger the law’s disclaimer requirements. The attorney said it would. Justice Sotomayor responded, “That seems to me more burdensome and wrong because it’s not tied to an advertisement that is promoting medical services.”

Justice Kagan also told the attorney for the State of California that “if [the statute] has been gerrymandered, that’s a serious issue.” She explained that gerrymandering occurs when the state has “general disclosure requirements” that the state applies “to some speakers whose speech [the state doesn’t] much like.” Justice Alito added that the “crazy exemptions” produce a “strange pattern” that “the only clinics that are covered by this are pro-life clinics.”

After California’s attorney said that the purpose of the law was to inform women about their medical options, Justice Gorsuch said, “if you’re trying to educate a class of persons about their rights, it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

At the end of the argument, Michael Farris finished with some brief remarks. The Court then took the case under advisement and should issue a decision before the end of June.

Jordan Lorence

Senior Counsel

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Alliance Advancement Team.

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