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Jessica Levinson  In NIFLA v. Becerra, the Supreme Court takes on both abortion and First Amendment rights

Women have the right to know their options when it comes to their health.
Image: Abortion rights activists
Abortion rights activists cheer outside of the Supreme Court on June 27, 2016 in Washington, DC.Mandel Ngan / AFP/Getty Images
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The U.S. Supreme Court will make a few blockbuster decisions this term that will touch on our most controversial issues, including both abortion and First Amendment rights. One such case, National Institute of Family and Life Advocates v. Becerra will help define both of those rights.

The case balances a state’s right to protect the health of its citizens with the First Amendment right of certain healthcare clinics to say (or not say) what they wish to their patients. Given past precedent, the court should find that the state’s interest in providing its citizens with information about the healthcare services available to them trumps a clinic’s limited interest in not being forced to post notices about those services. On the flip side, a win for California anti-abortion advocates could have unintended (and negative) consequences for anti-abortion efforts in other states.

The court should find that the state’s interest in providing its citizens with information about healthcare services trumps a clinic’s interest in not being forced to post about those services.

The California law at issue, the Freedom, Accountability, Comprehensive Care and Transparency Act (the “FACT Act”), regulates so-called “crisis pregnancy centers,” most of which are run by religious nonprofits that oppose abortion. Passed in 2015, the FACT Act requires that licensed health-care centers post or distribute notices telling their female clients that free or low-cost healthcare services, including contraception, prenatal care and abortions, are available through state programs. The law additionally requires that unlicensed healthcare centers include notices in their advertisements stating that they are not a state-licensed medical facility and therefore cannot provide medical services. (Some crisis centers provide primarily counseling services, as opposed to actual medical procedures.)

The FACT Act is a response to a real and pressing problem: The lack of information for women facing unplanned pregnancies about the availability of no and low cost state medical services, including abortions. The information contained in the FACT Act indicate over 700,000 women in California become pregnant each year and about half of these pregnancies are unintended. Some of these women may end up at one of the 200-300 crisis centers in California, where they may not be provided with information about the state services available to them.

The purpose of the majority of these centers is to stop women from obtaining abortions, not provide them with options. The FACT Act is an attempt to make sure women who go to crisis centers will not only be presented with one-sided and deceptive advertising.

NIFLA claims the law unfairly targets crisis centers because it does not apply to clinics that perform abortions, and because it forces centers to provide information they do not endorse.

The National Institute of Family and Life Advocates (NIFLA), a nonprofit legal center that provides advice to nonprofits covered by the FACT Act, sued the state in 2016 alleging First Amendment violations. NIFLA claims that the law unfairly targets crisis pregnancy centers because it does not apply to clinics that perform abortions, and because it forces crisis centers to provide information they do not endorse. In essence, the centers have claimed that the law mandates that they advertise for abortion.

Two lower courts reviewed the case and both sided with California. Essentially the courts held that there are strong governmental interests in favor of the regulation — namely providing information to its citizens in order to ensure that they have access to medical services, including abortions. Or put another way, the state must be able to adequately provide for the public health. In addition, the courts held that the FACT Act regulates professional speech, an area in which the courts have typically granted states wider latitude to regulate than other areas, such as political speech.

Interestingly, the outcome of this case could backfire for anti-abortion advocates in other parts of the country.

Interestingly, the outcome of this case — which is expected to be decided in June — could backfire for anti-abortion advocates in other parts of the country. As Dahlia Lithwick and Mark Joseph Stern at Slate pointed out, a win for NIFLA may create a loss for anti-abortion advocates in 18 states. These are states that have passed laws requiring doctors to tell patients that abortions are harmful to them because, for instance, they could cause breast cancer or lead to mental illness. In some cases, doctors may be forced to provide this information despite not agreeing with its veracity. If a state cannot force clinics to tell patients about the availability of constitutionally protected medical procedures, it is hard to see how a state could force doctors to tell patients about possible risks.

California has the better argument here and should succeed. The California FACT Act, like informed consent laws, require medical professionals to give patients information about the benefits and risks of procedures and treatments to help patients make informed decisions. Many people are familiar with informed consent laws. These laws require that medical professionals provide patients with certain information, regarding the benefits of risks of procedures and treatments.

In addition, the First Amendment protects both the right to speak (or not speak) and the right to listen. While pregnancy crisis centers are decrying what they claim is forced speech, we are largely ignoring a woman’s right to hear available information about their healthcare. The state is not forcing these nonprofit centers to advertise on its behalf, but merely making sure women are given enough information to make the best choice when it comes to their health.

Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.

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