SCOTUS Finds California's FACT Act Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its closely divided opinion in  National Institute of Family and Life Advocates (NIFLA) v. Becerra, Justice Thomas writing for the Court found California's FACT Act regulating "crisis pregnancy centers" violates the First Amendment. 

Recall that the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.

The majority's opinion found the regulations as to both the licensed and unlicensed pregnancy centers violated the First Amendment.

As to the required notice for licensed pregnancy centers, the majority found it was a content-based regulation subject to strict scrutiny under Reed v. Town of Gilbert (2015). The Court rejected the category of "professional speech," relied on by the Ninth Circuit, stating the "Court’s precedents do not recognize such a tradition for a category called “professional speech.”" However, the majority opinion recognized that the Court had  "afforded less protection for professional speech in two circumstances," but stated that neither "turned on the fact that professionals were speaking." First, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the majority discussed the more deferential review accorded to laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.”  However, the majority found Zauderer inapplicable because "the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available."  "Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic."  Second, citing Planned Parenthood of Southeastern Pa. v. Casey, the majority acknowledged that the Court had rejected a First Amendment challenge to a law requiring physicians to obtain informed consent before they could perform an abortion.The majority distinguished Casey, however stating that:

The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.

The majority's opinion states that regulating medical speech is especially problematical given that "Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities, quoting language regarding the Chinese Cultural Revolution and Nazi Germany. 

Even if strict scrutiny did not apply, the majority stated that "the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it."

As to the unlicensed notice, the majority found that it did not survive even under Zauderer, because it was “unjustified or unduly burdensome.”

Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements.

In a concurring opinion, Justice Kennedy, joined by Roberts, Alito, and Gorsuch, argued that the California law was viewpoint discrimination.