On Tuesday morning, the Supreme Court handed down a victory for the rights of pro-life pregnancy centers in a much anticipated decision.
National Institute of Family and Life Advocates (NIFLA) v. Becerra centered around a California statute, The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, that imposed a set of stringent requirements on licensed and unlicensed medical facilities alike. Petitioners in NIFLA argued that the FACT Act placed extreme restrictions on crisis pregnancy centers without a compelling government interest.
Writing for the court’s 5-4 majority, Justice Clarence Thomas rejected the state’s justification for the FACT Act and addressed the free speech concerns of both the licensed and unlicensed clinics.
The act required licensed pregnancy centers to distribute the following notice to all clients and post it on site:
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].
The court ruled that “the licensed notice is a content-based regulation of speech,” with Thomas noting that the law requires private pregnancy centers to advertise for state-sponsored abortion — “the very practice [they] are devoted to opposing.”
Thomas also rejects California’s justification for the notice, that the state has an interest in “providing low-income women with information about state-sponsored services.” Were that the case, why would the notice apply only to clinics “providing family planning or pregnancy-related services?”
Next, Thomas turns to the FACT Act’s restrictions on unlicensed facilities. The act required those clinics to post a carefully-worded notice on all “print and digital advertising materials” that states:
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.
Additionally, the law required that the government-drafted statement be “in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it.” The 29-word message would also have to be printed in as many languages as state law requires, which in some counties could number up to 13. Thomas writes that such restrictions are unreasonably onerous, especially on larger advertisements such as billboards.
Thomas concludes that the FACT Act “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”
Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch joined Thomas’s majority opinion. Justice Stephen Breyer filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
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