This week the United States Supreme Court ruled against women. Or at least, it ruled against women who might be looking for information about their reproductive rights.
And things are likely to get worse. On Wednesday, Justice Anthony Kennedy, the swing vote on so many important issues including gay rights, affirmative action and abortion, announced that he is retiring from the high court. We will only continue to see more harmful decisions when it comes to the ability of women to control what happens to their bodies.
The court's decision in the case of National Institute of Family and Life Advocates (NIFLA) v. Becerra is just the tip of the iceberg. While there can be no doubt that we must zealously guard the First Amendment rights of those who do not wish to speak, particularly when that speech contravenes their religious beliefs, those rights are not absolute. At some point they must give way to public health concerns and the need to provide patients and would-be patients with accurate information.
Five of the current Supreme Court justices unfortunately disagree. In yet another 5-4 decision, the court ruled on Tuesday that California crisis pregnancy centers do not have to inform women that they are entitled to state-funded medical procedures, including abortions. Women who visit the centers, which are typically run by conservative, anti-abortion organizations, may not even be informed that the facilities are not licensed to practice medicine. In short, women facing unplanned pregnancies no longer have to be made aware of their rights.
While there can be no doubt that we must zealously guard the First Amendment rights of those who do not wish to speak, particularly when that speech contravenes their religious beliefs, those rights are not absolute.
There are approximately 2,700 crisis centers across the country, and a few hundred in California. Their purpose is generally to reduce the number of abortions. According to the findings of the California legislature, they often do so by providing women with incomplete or misleading information.
Using laudable legislative precision, California lawmakers sought to remedy this problem. The legislature passed a law — the Freedom, Accountability, Comprehensive Care and Transparency Act (or FACT Act) — required that licensed centers post or distribute notices concerning the availability of free or low-cost healthcare services, including prenatal care and abortions, and also required centers to tell visitors whether they were licensed by the state to perform medical services.
The FACT Act is not dissimilar from informed consent laws, which require doctors to give patients information about the pros and cons of medical procedures and treatments in order to allow patients to make informed decisions. And yet, the Supreme Court’s ruling implies that those laws are constitutional while the FACT Act is not.
The National Institute of Family and Life Advocates (NIFLA) is a nonprofit legal center that provides advice to nonprofits covered by the FACT Act. NIFLA sued California alleging that the notice requirements in the FACT Act violated their First Amendment rights because the government was forcing them to use speech they disagree with. NIFLA essentially argued that the FACT Act required crisis centers to advertise abortions. NIFLA also claimed that California law unfairly targeted crisis centers because it did not apply to clinics that perform abortions. (Although one might ask why a clinic that does perform abortions would be required to inform patients of what they presumably already know.
Before coming to the Supreme Court, two lower courts rejected NIFLA’s claims. These courts correctly gave credence to California’s findings that there is a strong governmental interest in informing citizens about the availability of medical services, including abortions.
But a funny thing happened on the way to trying to inform women about their rights: The Supreme Court.
Justice Clarence Thomas, writing for the majority, concluded that it is likely that pregnancy crisis centers would succeed in their suit against California. Indeed, Thomas spilled a great deal of ink worrying about the rights of crisis centers and whether they were being unfairly targeted with overly burdensome requirements. But in all this worrying about the rights of crisis centers, Thomas paid little heed to the rights of another group — the women entering the centers.
In all this worrying about the rights of crisis centers, Thomas paid little heed to the rights of another group — the women entering the centers.
In his dissent, Justice Stephen Breyer noted that in 1992, the Supreme Court upheld a Pennsylvania law that required doctors to tell patients seeking abortions about adoption procedures. Breyer argued it was hypocritical to say doctors can be forced to speak yet crisis centers should have the option to stay silent.
Indeed, there are currently 18 other states that require doctors to tell patients that abortions are harmful, even if the doctor disagrees. It will be interesting to see whether these statutes can now withstand constitutional scrutiny. Again, if crisis centers cannot be forced to provide accurate information about the availability of medical procedures, doctors should not be forced to provide often inaccurate information about medical procedures.
This case is yet one more example of the impact the judiciary can have on everyday life. And in the vast majority of the 5-4 cases this year, the outcome would have been different if President Barack Obama’s nominee, Merrick Garland, were granted a hearing. Elections have consequences. Now with the retirement of Justice Kennedy, Trump will likely be able to ensure that the Supreme Court is a solidly conservative court for decades to come. Women are merely one of the many marginalized groups who will pay the price.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.
