Supreme Court Rejects Notice Requirement of Pregnancy Crisis Law

By William Vogeler, Esq. on June 26, 2018 | Last updated on March 21, 2019

After the U.S. Supreme Court ruled in a controversial abortion case, California will get a second opinion on whether pregnancy counseling centers must notify women about contraception, abortion, and pre-natal care.

In National Institute of Family and Life Advocates v. Becerra, the Supreme Court struck down a California law that required the centers post notices about those options. The justices said the law "drowns out" the centers' own messages, and remanded the case for further consideration.

Now the U.S. Ninth Circuit Court of Appeals, which had upheld the law, will have to figure out how free speech really is in pregnancy counseling.

Pregnancy Counseling

The controversy arose in 2016 with California's Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law regulates pregnancy crisis centers -- generally pro-life centers that offer pregnancy-related services.

The FACT Act requires licensed centers to post notices about alternatives, such as abortion services, and mandates non-licensed centers to say they are not licensed to provide medical services. Against a challenge from the centers, the Ninth Circuit upheld the law.

Reversing and remanding, the Supreme Court noted that the notice requirement only applies to clinics that primarily offer "family planning or pregnancy-related services." California has about 1,000 community health clinics, however, that are not required to provide the notice.

"If California's goal is to educate low-income women about the services it provides, then the licensed notice is 'wildly underinclusive,'" Justice Clarence Thomas wrote for the majority.

Professional Speech

In a 5-4 decision, the justices wrestled with "professional speech" and whether it deserves any less protection than other speech. The majority said the Supreme Court has never recognized professional speech as separate category of free speech.

In dissent, Justice Stephen Breyer said the Court has required doctors to tell women about adoption services in other states. "After all, the law must be even-handed," he wrote.

Justice Anthony Kennedy wrote a concurring opinion to say it is a "serious threat" when government seeks to "impose its own message in the place of individual speech, thought, and expression."

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