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 Various justices voiced concern that the Democratic-backed 2015 law
was crafted to take aim at a specific viewpoint -- opposition to
abortion -- held by these non-profit facilities called crisis
pregnancy centers.
Conservative justices sharply questioned the lawyer representing
California, and even two liberal justices expressed unease with
parts of the law during an hour-long argument in an appeal by these
facilities of a lower court ruling upholding the statute. The court
has a 5-4 conservative majority.
The crisis pregnancy centers accuse California of compelling them to
advertise for abortion even though it violates their beliefs,
running afoul of the guarantee of freedom of speech under the U.S.
Constitution's First Amendment.
Conservative Justice Samuel Alito said that even if the law looks
neutral on its face, it contains so many exemptions that it appears
to target only those holding anti-abortion views.
"Do you think it's possible to infer intentional discrimination?"
Alito asked Joshua Klein, California's deputy solicitor general.
Liberal Justice Elena Kagan pressed Klein on the same concerns,
wondering whether the law was applied only to "speakers whose speech
we don't much like." Klein said the law was applied to be useful to
pregnant women.
California's Reproductive FACT Act, passed by a Democratic-led
legislature and signed by Democratic Governor Jerry Brown, requires
centers licensed as family planning facilities to post or distribute
notices that the state has programs offering free or low-cost birth
control and abortion services. It also requires unlicensed
facilities that may have no medical provider on staff to disclose
that fact.
The Supreme Court legalized abortion in 1973, and the wider issue of
abortion rights is not at issue in the case.
Crisis pregnancy centers say they offer legitimate health services
but that it is their mission to steer women with unplanned
pregnancies away from abortion. California says some crisis
pregnancy centers mislead women by presenting themselves as
full-service reproductive healthcare facilities and the law helps
ensure clients are made aware of abortion services available
elsewhere.
The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the
law in 2016, finding it did not discriminate based on viewpoint.
'CHOOSE LIFE'
Conservative Justice Anthony Kennedy suggested that if the statute
required unlicensed centers to add the disclosure about having no
medical provider to a billboard that simply stated "Choose Life" - a
slogan for people who oppose abortion - it would violate the
Constitution.
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Liberal Justice Sonia Sotomayor agreed that such an advertising
requirement would be wrong.
Some of the questions from liberal justices suggested they had one
eye on future cases in which conservative states pass laws imposing
restrictions on abortion clinics.
Liberal Justice Stephen Breyer expressed concern over setting a
legal standard that would be seen to favor one side of the abortion
debate over the other. Any sort of disclosure law should apply
equally whether passed in a state that supports abortion rights or
in one that tries to limit them, Breyer said.
If a "pro-life state can tell a doctor you have to tell people about
adoption, why can't a pro-choice state tell a doctor, a facility ...
you have to tell people about abortion?" Breyer asked Michael
Farris, an attorney with the Alliance Defending Freedom conservative
legal group representing the crisis pregnancy centers.
"What is sauce for the goose is sauce for the gander," Breyer said.
Farris said while doctors performing medical interventions like
abortion can be legally required to discuss the benefits or risks of
the procedures, those who merely talk about abortion need not be
held to same standard.
"We should not politicize the practice of medicine in that way,"
Farris said.
Abortion rights advocates say the roughly 2,700 U.S. anti-abortion
pregnancy centers, including around 200 in California, far outnumber
facilities providing abortions.
The California challengers are the National Institute of Family and
Life Advocates, an umbrella group for crisis pregnancy centers, and
two such facilities in San Diego County.
California told the justices in legal papers that some centers use
incomplete or false medical advice to try to prevent women from
having an abortion. Some resemble medical clinics, down to lab coats
worn by staff, to try to confuse women into thinking they are at a
facility offering all options, the state added. The facilities deny
using deceptive tactics.
A ruling is due by the end of June.
(Reporting by Andrew Chung and Lawrence Hurley; Editing by Will
Dunham)
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