Pregnancy

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.

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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.

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75 responses to “How a New SCOTUS Ruling on Abortion Could Permanently Alter Economic Regulation

  1. 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.

    Well, yeah. That compelled speech is antithetical to free speech seems pretty clear, but then i’m not a lawmaker.

    1. They were compelling good speech. How can that not be clear? Totally different.

      1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. http://easyjob.club

      2. Man, that speech was compelling as all get out.

  2. ” the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation”

    WOOHOO!

    1. seriously, read the whole dissent. It’s a really fun juxtaposition of one thing after or another that sounds great being said as if it’s the end of the world. http://www.supremecourt.gov/op…..0_5368.pdf

      1. “Many ordinary disclosure laws would fall outside the majority’s exceptions for disclosures related to the professional’s own services or conduct. These include numerous commonly found disclosure requirements relating to the medical profession. See, e.g., Cal. Veh. Code Ann. ?27363.5 (West 2014) (requiring hospitals to tell parents about child seat belts); Cal. Health & Safety Code Ann. ?123222.2 (requiring hospitals to ask incoming patients if they would like the facility to give their family information about patients’ rights and responsibilities); N. C. Gen. Stat. Ann. ?131E?79.2 (2017) (requiring hospitals to tell parents of newborns about pertussis disease and the available vaccine). These also include numerous disclosure requirements found in other areas. See, e.g., N. Y. C. Rules & Regs., tit. 1, ?27?01 (2018) (requiring signs by elevators showing stair locations); San Francisco Dept. of Health, Director’s Rules & Regs., Garbage and Refuse (July 8, 2010) (requiring property owners to inform tenants about garbage disposal procedures).”

        1. Showing where the stairs are is definitely “contrary to their deepest convictions” of the elevator. Right.

      2. This was a thorough article. Well done.

        Also- as I said again: don’t read the comment section. Reading the comments will haunt your dreams! You have been warned!

        1. FakeGoatse and 2girls1cup are still running through your mind, eh?

          1. Yes. It’s singed in my brain

              1. Phew, I took a risk by clicking that, good thing it was OK.

                1. You’re probably into hand holding too you sick fuck.

                  1. Too saucy

              2. Dem is goooood bunny waaaabbits!!!!

      3. Awesome. Excellent article, too.

  3. This makes me think of those “employee rights” posters present in the back rooms of most businesses. And Health Inspector ratings at restaurants.

    1. That is a good question. I think the difference is that the government has a much more compelling interest in forcing employers to be honest with their employees about their legal rights than they do forcing medical providers to take a stand one way or the other on the propriety or other available options of abortion. Those laws I think are the equivalent of requiring counselors to tell their pregnant clients abortion is legal but no more.

      1. Exactly John. Government requiring employers to post labor law info and safety info is nothing like requiring a mechanic to tell you about alternate mechanics in the area.

      2. You seem confused on the overturned law.

        It did not require anyone to take a stand on any issue. It just required them to say “the state of California wants you to know X”.

        1. Yeah, at the abortion mills they have similar signs saying: “Your baby’s
          heart is beating. If you want to know how to save it’s life, go down the street to the alternate birth services.”

          Right?

        2. So you would be completely OK with a law which required a primary care doctor to inform you that unprotected male homosexual sex is far more likely to result in HIV transmission? That isn’t taking a stand on an issue, merely educating you, right?

          1. You seem to have confused me correcting John’s misconception about the law with me taking a stand. Kind of ironic, actually.

    2. I think they’re still required to inform the patient that state services are available at state facilities. They just don’t have to tell them what the specific services are.

  4. “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.”

    Yeah, this dyed-in-the-wool libertarian fails to see the general problem. I guess I’m just not a side over principle kind of guy.

    1. this dyed-in-the-wool libertarian

      More like cried a mouthful libertarian, am I right?

    2. Not all requirements compell speech “contrary to their deepest convictions”

      Duh

  5. Wow!

    “Protecting abortion providers is more important than free speech” is a progressive talking point that is completely divorced from anything related to limited government. Just- wow

    1. Just to be clear, this is in reference to the dissenting opinion. It’s clear that there are four justices on the court that are fine with voiding the “free speech” clause of the first amendment

      1. That is disturbing.

        Maintaining the legality of abortion is a fine position, but restricting opposing speech, because it threatens the abortion industry is quite a different position. I can’t believe this happened

          1. Thank you?

          2. Nah, Crusty, he’s Just Say’n.

              1. Not only that, we’re both actually a third party who is a yet-unnamed writer for either Reason or the Washington Post. Just ask Mikey, it’s a whole thing.

              2. I’m actually a little used BUCS sock.

          3. I’d post as Eddie but someone is parked on that name already.

          4. I’d post as Eddie but someone is parked on that name already.

            1. But observe how I came as close as I could.

              1. Would not “Eddy” have been closer in spirit?

                1. Like this?

                  1. More evidence that you’re Duane Eddy.

        1. You don’t get out much, do you? This has been happening for years.

      2. Not really.

        They are just taking the extreme view that the majority are putting everything from nutritional labels to medical disclosure at risk. It may be hyperbolic, but these are strange times.

        Thomas’s counter seems more reasonable though, and will at least put forward rethinking some regulations.

      3. Three of the four justices that also found it perfectly ok to ban certain core political speech if the “speaker” was an organized group instead of an individual, an appalling position for them to take indeed.

  6. It could and should spell trouble for the informed consent laws. The pro life people are just wrong on that. They want to ban abortion and can’t do that so are instead trying to force every doctor to talk women out of having abortions. That is not consistent with the 1st Amendment. It is compelled speech just like the California law is.

    1. “They want to ban abortion and can’t do that”

      Are you sure? Now that Kennedy is headed for the beaches and golf courses (or whatever judges do in retirement), there’s a chance of getting an actual anti-Roe justice on the court to supplement the 4 Roe-skeptical justices already there.

      I’m not going to count my chickens before they’re hatched, but things look a little bit better than they were when Kennedy was there.

      1. If Roberts didn’t overturn Obamacare, he sure as heck isn’t overturning Roe vs Wade

        And even if he does, it just back to the state level.

        1. Eh, better than nothing.

          1. And IIRC, in the Obamacare case he said it wasn’t his business to second-guess the wisdom of legislative enactments.

            OK, then, maybe he can run with that…

      2. I seriously doubt the SCOTUS is ever going to ban abortion. But the progressives and Democrats sure want people to think that’s the case. First, the court very seldom overturns precedent. Second, there’s obviously a lot of cases in which it’s hard to justify an abortion ban, even for pro-lifers, such as when the mother’s life is endangered, rape, incest, and fetuses with debilitating medical problems. Third, there’s a conflict between the rights of a pregnant woman vs. the rights of a fetus.

        Even Nolan Brown focuses on free speech, compelled speech and economic regulation here more than abortion. I expect the Democrats will claim Trump’s SCOTUS nominee is the devil incarnate because Roe vs. Wade will be overturned. They’ve been hysterical ever since he was elected.

    2. I agree.

      The only distinction for this is for minors. (Though I also think a distinction should be made for miners)

      And I really don’t know the solution to that one. Everything with minors and what rights they have is very difficult.

      1. Can anyone point to the part of the Constitution that say “none of this applies to minors?”

        I can’t even recall if a stupid concept like “minors” even existed in 1792.

        1. That’s a valid idea. But the reality is that we DO make many restrictions on minor. The most obvious one in the constitution is voting age. This is a right that is denied to minors.

          In many ways we remove rights from minors. Is this correct or not? I don’t know. Certainly 18 is arbitrary, but I think people also don’t seem to want absolute rights given immediately to babies.

          Why this is okay I think is a hard question. And what rights should and should not belong to children is hard as well.

        2. Can anyone point to the part of the Constitution that say “none of this applies to minors?”

          It’s not about minors per se, but U.S. Constitution, Article I, section 2, clause 2 (and similar clauses) does call out different rights based on age.

          That said, it’s helpful to remember that the Constitution wasn’t really about what states could do to limit the rights of anyone, it was about what the feds could do, and the states could decide for themselves what was permissible. So whatever the concept of “minor” was back in 1786, it wouldn’t have shown up in the Constitution anyway.

    3. It should depend on the individual fact pattern. Laws like in Casey, requiring discussion of adoption options seem like they should fall. However, laws requiring ultrasounds, or sharing information about complications, etc., will likely depend on which judge or panel hears it, but may pass muster even under strict scrutiny. Given that they are sufficiently narrowly tailored, and are closely bound to a specific state interest.

      Recall the issue here was not just that some speech was compelled, but that speech had a tenuous relationship to any professional service provided, if at all. I expect judges will come up with any number of parades of horribles before concluding that no professional speech can be compelled under any circumstances.

      1. However, laws requiring ultrasounds, or sharing information about complications, etc., will likely depend on which judge or panel hears it, but may pass muster even under strict scrutiny. Given that they are sufficiently narrowly tailored, and are closely bound to a specific state interest.

        What state interest? In providing misleading, anti-scientific information? In requiring unnecessary medical procedures? In appealing to emotion to flatter superstition? Why would a health care facility need to perform, or a patient need to see the result of, an ultrasound procedure?

        1. Health of the baby comes to mind.

          Oh wait, it’s a mass of protoplasm. I keep forgetting.

        2. Ultrasounds are now “anti-science”

          Like GMOs, Nuclear Power, Fracking, Vaccinations, etc

        3. If you know of someone who wants to get an abortion, but does NOT want to be subjected (by the State and their lapdogs, the medical establishments) to be shamed by the “shaming wand” first, then there IS a method of getting a religious exemption to this supposedly dire need for being raped and shamed by the shaming wand, first!

          To see the details of the religious exemption, please see http://www.churchofsqrls.com/sonograms/

        4. “Why would a health care facility need to perform, or a patient need to see the result of, an ultrasound procedure?”
          So that the patient is aware of what you ghouls refuse to admit – that there is a baby developing in there.

          It’s not some clump of cells, but a potentially fully formed human being, that you will be murdering if you decide to choose to do, what will be a possible death sentence for you, if you do the same thing after it passes through the birth canal.

          1. Said he who has never been impregnated by a lying man. Said he who has never fallen for the charms of a liar, and then found out that he has 5 other girlfriends. Said he who wants to help lying men pass on their genes and lack of good fathering abilities, to yet more generations of liars and bad fathers. Said he who wants to kill… “possible death sentence for you…” those who’d like to have the freedom to stop this charade of rewarding the liars with passing on their genes for being lying scum!

            Said one who is self-righteous, who judges others, despite never having been in their shoes.

  7. After reading this, I come to the conclusion that Planned Parenthood v. Casey was decided wrong. The first two parts (informing the patient of risks and detailing what the procedure does) are acceptable as the patient should have that information. The third part (gestational age) seems irrelevant, and the fourth part is the inverse of the compelled speech that NIFLA v. Becerra decided as unconstitutional.

    1. It’s not the time for prolifers to think small.

      It’s time to think in terms of getting a majority to overrule Roe.

      At the very least, it will boost morale.

      Start putting some abortion bans on the books, as many as the voters can stand, take them all to the Supreme Court if possible with pleas to overrule Roe. Keep the issue on their plates.

      1. Libertarians For Government Control of Wombs?

        Is there any issue on which you are anything other than an authoritarian-leaning, stale-thinking, right-wing yahoo?

        Why do you hate freedom, you bigoted rube?

        1. And I hope you have a nice day, too!

        2. Womb control might be necessary if wombs were in the habit of killing their human occupants. But they are not.

          Not seeing how a law restricting others from killing those human beings is any sort of violation of the NAP.

  8. The dissent still seems to miss the point. The pregnancy centers, while obviously encouraging you to carry the pregnancy through to birth, aren’t going to be providing any of medical services for that birth. Presumably the doctor providing prenatal care discloses discloses medical pros and cons along the way the same way the doctor or professional at the Planned Parenthood does for abortion.

    I’m fine with the courts erring on the side of less compulsion rather than more, but it’s amusing to see the pro-choice libertarians getting into twists because compulsion here would target the religious and aid abortion numbers.

    1. Agreed, Breyer’s dissent is easily distinguishable from the case, or similar cases, at hand, to the point of what should be embarrassment.

  9. “Governments must not be allowed to force persons to express a message contrary to their deepest convictions”, this leaves the Masterpiece Cake decision wide open, Sherman tank wide open.

    1. That’s different. Because shut up.

  10. The State could easily enforce the law, in essence, by regulating the billboards or newspapers, etc., by having a portion of the billboard reserved for the State so that it could put up in its area a warning that this billboard is BS. It would be similar to cigarette packs having the warning “THIS SHIT WILL KILL YOU”.

  11. When you have a welfare state, it becomes more and more important to find ways to keep human liabilities from reproducing.

  12. I’m going to repeat this, because I think it’s important to say:

    Premise: Government’s biggest (only) reason for existence is prosecution of justice, which is necessary in cases of initiations of force.
    Premise: Murder is the worst initiation of force.
    ——————————————
    Conclusion: A government incompetent to define and prosecute murder is a government that shouldn’t exist.

    Please, show me where I’m wrong.

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