The abortion debate takes place on many different battlefields. Of course, there are legal regulations about when a woman can obtain an abortion, where, and from whom. But there are more subtle skirmishes on the periphery of those laws, regarding notification, consent, and the even kind of information a woman must be shown before electing to terminate a pregnancy.
One of those clashes involved so-called "crisis pregnancy centers" in California -- pro-life and largely Christian belief-based organizations that, while offering a limited range of pregnancy options and counseling, nonetheless "aim to discourage and prevent women from seeking abortions." A state law required these pregnancy centers to notify clients about state-offered services, like abortion, and disclose whether or not the clinic is licensed to provide medical services. But the Supreme Court just revived a First Amendment challenge to the law, ruling the requirement is likely unconstitutional.
Facts and Free Speech
According to court documents, there are nearly 200 licensed and unlicensed crisis pregnancy centers in California, and the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) had requirements for clinics that primarily serve pregnant women to provide certain notices:
Two crisis pregnancy centers, one licensed and one unlicensed, sued the state, claiming notices
abridged their freedom of commercial speech. A district court denied their request for an injunction against the California statute, and the Ninth Circuit agreed, finding such regulations were legal and the clinics could not show a likelihood of success on the merits. They appealed, and the Supreme Court reversed the lower courts, finding the licensed notice likely violates the First Amendment and the unlicensed notice unduly burdens protected speech.
Content and the Constitution
In a 5-4 decision authored by Justice Clarence Thomas, the Court ruled that notice requirement for licensed centers is "content based," in that it "alters the content" of the pregnancy centers' speech by requiring them to notify pregnant women about the availability abortions even though their main goal is to dissuade women from having them. Therefore, the lower courts applied the wrong standard of review for the regulation. The Court also noted that, even if the proper standard were applied, the law would likely be invalid.
The majority also concluded that the only justification that California had for the notice requirement for the unlicensed centers was "purely hypothetical," and also likely unconstitutional. While the state legislature cited the need for pregnant women to "know when they are getting medical care from licensed professionals," the Court found no evidence "suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals."
Now the case goes back to the lower courts, "for further proceedings consistent with this opinion," an opinion that asserts that the pregnancy centers "are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment."