How a New SCOTUS Ruling on Abortion Could Permanently Alter Economic Regulation

"The majority's view, if taken literally, could radically change prior law," warn the Court's liberal justices.


John Fedele Blend Images/Newscom

"Professional speech" receives the same First Amendment protection as other kinds of speech, the U.S. Supreme Court reiterated Tuesday. In a decision dealing with California's "crisis pregnancy centers"—which encourage women to give birth rather than seek abortions—SCOTUS found that the state can't compel these centers to alert clients about state-assisted abortion options, thereby rendering California's "Reproductive FACT Act" unconstitutional.

The law, which combines the charged issues of abortion and religious liberty, split conservatives and liberals on the Court (and in the public) along predictable lines. But while the Court's decision isn't likely to have much effect on abortion access or freedom of conscience, it could have major implications for state regulation across a wide range of situations and industries.

"The majority's view, if taken literally, could radically change prior law," warns Justice Stephen Breyer in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

In holding that California's rules for crisis pregnancy centers are unconstitutional content-based regulations, SCOTUS may have paved the way for successful challenges to what Breyer et al. call "ordinary social and economic regulation."

Professional Speech Is Still Free Speech

The crux of yesterday's SCOTUS ruling is that California's Reproductive FACT Act violates the First Amendment. "Governments must not be allowed to force persons to express a message contrary to their deepest convictions," Justice Anthony Kennedy writes in a concurring opinion.

Passed in 2015, the FACT Act is aimed at crisis pregnancy centers—defined by California legislators as "pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center"—as well as other organizations that offer family planning services. Under the law, all such entities licensed by the state as medical facilities must provide patients with information about state-assisted prenatal care, contraception, and abortion services. Centers that are not licensed to offer medical care are required to disclose that status on site and in all advertisements.

Two California pregnancy centers, one licensed by the state and one not, and an organization representing crisis pregnancy centers argued that the law violated their First Amendment rights. After a federal judge and the U.S. Court of Appeals for the 9th Circuit upheld the law, the Supreme Court agreed to hear the case, National Institute of Family and Life Advocates v. Becerra.

Yesterday the Court held that requiring licensed clinics to provide information about state pregnancy and abortion services is indeed an unconstitutional content-based restriction on speech. Content-based speech regulations are unconstitutional unless the government can prove that they serve a "compelling government interest" and that they have been narrowly tailored, meaning they don't sweep too widely and do not impose a burden greater than necessary to achieve the government's goal.

In this case, "licensed clinics must provide a government-drafted script about the availability of state-sponsored services," including "abortion—the very practice that petitioners are devoted to opposing," Justice Clarence Thomas notes in the majority opinion, which was joined by Kennedy, Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch. Such a burden is hard to justify as necessary to achieve California's goal of publicizing state services, the Court concluded.

The 9th Circuit decided that California did not have to satisfy this test because it was regulating "professional speech," which enjoys less protection under the First Amendment. "But this Court," Thomas writes, "has not recognized 'professional speech' as a separate category of speech. Speech is not unprotected merely because it is uttered by 'professionals.'"

Who Are You Calling a Professional?

The Supreme Court "has afforded less protection for professional speech in two circumstances," Thomas writes. But "neither [circumstance] turned on the fact that professionals were speaking" (emphasis mine), as opposed to some other sort of speaker. Rather, the speech in question either conveyed "factual, noncontroversial information" or constituted professional conduct that only incidentally involved speech.

In Planned Parenthood v. Casey, for example, the Court upheld a Pennsylvania regulation requiring doctors to tell abortion patients about "the nature of the procedure, the health risks of the abortion and childbirth, and the 'probable gestational age of the unborn child,'" as well as provide details about state services for new parents. Planned Parenthood sued on free speech grounds, but SCOTUS sided with the state, saying the rule was merely part of obtaining informed consent for a medical procedure.

"For constitutional purposes, [the law is] no different from a requirement that a doctor give certain specific information about any medical procedure," the Court held in Casey. And speech that is "part of the practice of medicine" is "subject to reasonable licensing and regulation by the State."

In the present case, by contrast, the compelled speech "does not facilitate informed consent to a medical procedure," Thomas says. "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."

Nor is the regulation a particularly effective way of accomplishing the state's goals, Thomas suggests. California said the FACT Act was aimed at ensuring that low-income women would find out about state-sponsored services. But "assuming that this is a substantial state interest," Thomas writes, the law "is not sufficiently drawn to achieve it," as it excludes community clinics, rural health centers, federal health centers, and all sorts of spaces where low-income women receive care.

In any event, California certainly could find other ways to inform low-income women about its services, the Court concludes, suggesting it mount a public information campaign or "even post the information on public property near crisis pregnancy centers." The state said this was not a viable option, since previous advertising campaigns did not generate much of a response. Thomas suggests the lack of response could be due to a lack of interest or a poorly designed advertising message, as opposed to an inadequate medium.

Thomas argues that upholding California's law could encourage speech restrictions that go far beyond the abortion issue. "Professional speech" is "a difficult category to define with precision," he writes, and "as defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals," including truck drivers, bartenders, and barbers. Basically, the lower courts have said a line of work becomes a "profession" when the state decides to require a license for it. "But that," warns Thomas, "gives the States unfettered power to reduce a group's First Amendment rights by simply imposing a licensing requirement."

Viewpoint Discrimination?

When it comes to unlicensed crisis pregnancy centers, the burden is on California "to prove that the unlicensed notice" it would require "is neither unjustified nor unduly burdensome," writes Thomas. "It has not met its burden."

California's stated reason for this part of the FACT Act was to make sure pregnant women "know when they are getting medical care from licensed professionals." But during oral arguments, the state's lawyers contradicted this justification, saying pregnant women entering these facilities generally know they are not places for professional medical care. The centers do offer free access to pregnancy tests and other attractive (nonmedical) services, such as religion-based counseling and a free store with gently used baby clothes.

Making such centers post "a government-scripted, speaker-based disclosure" on site and in all advertisements (regardless of what else they do or don't say) "unduly burdens protected speech" by "impos[ing] a requirement that is wholly disconnected from California's informational interest," the Court says. Furthermore, Thomas observes, the fact that the rule applies to pregnancy clinics but not family planning centers casts doubt on California's claim that it is not discriminating based on viewpoint.

In his concurring opinion, Kennedy underlines that point, writing that it does "appear that viewpoint discrimination is inherent in the design and structure" of the FACT Act. Kennedy continues (citations omitted):

This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State's own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act's passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.

The California Legislature included in its official history the congratulatory statement that the Act was part of California's legacy of "forward thinking." But it is not forward thinking to force individuals to "be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable." It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

'Many Ordinary Disclosure Laws' Could Be Deemed Unconstitutional

Although the majority's opinion seems to side with the anti-abortion movement, it could spell trouble for the "informed consent" laws that pro-life activists favor, such as the law that spawned Planned Parenthood v. Casey or laws requiring that women seeking abortions hear about adoption options. Thomas et al. suggest these situations are different, as women come to the pregnancy centers to hear options about their pregnancy, not get a medical procedure. But Breyer's dissent makes a convincing argument that this distinction is not relevant.

"No one doubts that choosing an abortion is a medical procedure that involves certain health risks," writes Breyer. "But the same is true of carrying a child to term and giving birth," which is why "prenatal care often involves testing for anemia, infections, measles, chicken pox, genetic disorders, diabetes, pneumonia, urinary tract infections, preeclampsia, and hosts of other medical conditions." And "childbirth itself, directly or through pain management, risks harms of various kinds," including a risk of death 14 times as high as the risk associated with abortion.

Breyer argues that the implications of the Court's decision go far beyond abortion and reproductive care. "Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority's approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation," he writes. "Virtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals 'to speak a particular message.'"

The dissenting justices see that as an undesirable and dangerous development. But libertarian-leaning people might take comfort in their analysis of the majority's opinion. Breyer et al. suggest that the Court's ruling could spell the end for all sorts of state-mandated disclosures. "Many ordinary disclosure laws would fall outside the majority's exceptions for disclosures related to the professional's own services or conduct," Breyer writes. That means many ordinary disclosure laws could be declared unconstitutional.

"Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution," Breyer says. For more than 100 years, "ordinary economic and social legislation has been thought to raise little constitutional concern."

"Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech," the dissenters warn. But perhaps the majority decision simply paves the way to an understanding of free speech that does not yield so easily to the government's whims.