Nel's New Day

March 22, 2018

Could ‘NIFLA v. Becerra’ Change Free Speech, Abortion Law?

The past week has been again filled with chaos—firings of the national security council, resignation and appointments of the legal team for Dictator Donald Trump (DDT), continued lawsuits against the federal government, additional information about DDT’s sexual misconduct as more women join Stormy Daniels, and concerns regarding the retention of special investigator Robert Mueller. No wonder that a case before the Supreme Court last Tuesday got little attention from the media. In normal times that case would have been front and center on television because it’s one of seven cases thus far this judicial year that addresses free speech—two of them major lawsuits.

Last December the religious legal group Alliance Defending Freedom (ADF) and the federal government argued before SCOTUS that a cake in Colorado is free speech because the baker is an “artist.” A ruling in his favor and opposing service for a gay couple would permit rampant discrimination across the United States, not only against LGBTQ people but also anyone else who offended the religious and moral sensibilities of everyone in all businesses—retail, health care, food services—everyone.

Last Tuesday’s case, NIFLA v. Becerra, the federal government joined ADF to oppose a California law that requires community clinics to post notices about their licensing (or lack thereof), the availability of a medical provider, and patients’ access to abortion and other family planning services in the state. The 2015 California Reproductive FACT Act mandates that licensed community clinics whose “primary purpose is providing family planning or pregnancy-related services” disclose to all patients that California offers “free or low-cost” contraception, prenatal care, and abortion. These clinics must provide a telephone number that patients can call for more information about state-funded services. Clinics focusing on pregnancy or family planning but are unlicensed must clearly provide a warning in the clinic and in advertising that they have “no medical provider.”

Many of California residents are unaware of expanded funding for prenatal and family planning services from the Affordable Care Act, and many clinics, especially the anti-abortion crisis pregnancy clinics (CPCs) pressure women to not have an abortion. Many CPCs hide religious affiliations and claim that they provide more services than available in the clinics. Owners and employees of the CPCs use “free speech” to object to the law by arguing that it makes them “complicit in facilitating an act they believe hurts women and destroys innocent lives.” They maintain that the FACT Act is “gerrymandered” to “commandeer” their expression, “manipulat[ing] the marketplace of ideas” to favor abortion in violation of the First Amendment.

The argument from Michael Farris, a member of ADF, is that not all doctors are required to post the information, only community clinics with pregnancy-related services. He wants to move the law to heightened judicial scrutiny, which raises the legal bar for California to keep the law. Justice Samuel Alito bought the argument that the “crazy exemptions” of the law creates “a very strange pattern.” California Solicitor General Joshua Klein explained that the law targets community clinics where millions of low-income Californians get health care and exempts private physicians because they usually don’t have poorer women patients.

Jeffrey Wall, the deputy U.S. solicitor general who joined Farris on behalf of the federal government, tried to persuade the justices that informing pregnant women about alternatives to abortion are necessary only when medical procedures are provided and that unlicensed clinics don’t provide medical procedures. Justice Sonia Sotomayor pointed out that CPCs sometimes provide medical procedures such as ultrasounds and pregnancy tests and give pregnancy counseling, much like doctors’ medical advice in discussing abortion procedures.

The case also addresses whether clinic users should know which clinics are licensed and provide a full range of subsidized medical options. Sotomayor described Fallbrook Pregnancy Resource Center’s website:

“There is a woman on the homepage with a uniform that looks like a nurse’s uniform in front of an ultrasound machine. It shows an exam room. It talks about ‘abortion,’ ‘your options,’ and ‘our services,’ advertising ‘free ultrasounds.’ But in fact, the Fallbrook Pregnancy Resource Center is an unlicensed CPC. If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”

Sotomayor compared NIFLA to Planned Parenthood v. Casey that allows states to pass “informed consent” laws forcing abortion providers to deliver a state-approved anti-abortion canned statement before the procedure even if the information is false. Both situations mandate information for women, one on alternatives to the clinics and the other about termination of pregnancies. Justice Stephen Breyer dubbed this issue “what is sauce for the goose is sauce for the gander.” Denying California the right to require postings at all community clinics regarding availability of free and/or inexpensive family planning services could give free speech to only one side of the abortion argument.

The case was appealed to the Supreme Court after a federal district court and the 9th U.S. Circuit Court denied an injunction in favor of CPCs. Both lower courts maintained that California’s law was constitutional in the same way that Pennsylvania could require doctors to tell abortion patients about the “nature” of the procedure and the “probable gestation age” of the fetus.

Observers watching the negative comments from some justices believe that at least part of the FACT Act will be struck down; the question is how much and on what grounds. Mandatory disclaimers in multiple languages on advertising for unlicensed CPCs may be unconstitutional. Requiring clinics to tell patient about a lack of license seems legal. The middle ground is the crux: whether states can force CPCs to tell patients about services elsewhere.

A serious problem in this case comes from dangers in CPCs that promise medical assistance but have the sole purpose of forcing a woman to carry a fetus to full term. Over 2,700 CPCs throughout the nation lure pregnant women into their facilities and then terrify them with lies about their future if they have abortions.

States like Texas are using public funds from bona fide community clinics to unlicensed CPCs exempt from regulations or credentialing because they provide only non-medical services such as self-administered pregnancy tests or parenting classes. One-fourth of Texas’ 200 CPCs are funded by federal taxpayer money through the $38 million operating budget of “Alternatives to Abortion” for low-income women. With no government oversight, the “Texas Pregnancy Care Network” subcontracts with 51 CPCs with most money going to “counseling,” a term with no definition. Another $739,000 went to advertising. When asked if the CPCs were medically licensed, a state spokesperson said that they are not medical clinics.

People who go to CPCs don’t know they won’t get any medical care. Austin (TX) tried to pass an ordinance requiring that clinics state whether they have doctors. A federal judge struck down the ordinance with the argument that it violated CPCs’ due process. Texas law does require doctors to lie to women about medical risks of abortions, a procedure with less risks than pulling wisdom teeth or taking out tonsils.

In his 12 years as Chief Justice, John Roberts has greatly expanded the definition of free speech for corporations. To him and a majority of the justices in Citizens United, all money is free speech meaning unlimited anonymous corporate donations to political candidates, a ruling later expanded in McCutcheon v. FEC. These cases, and others such as Hobby Lobby allowing corporations to deny birth control to employees using faulty scientific information, shows that Roberts’ defense of the First Amendment protects only corporations. He uses the same argument to give corporations benefits in cases involving drug advertising and trademark regulations as well as removal of unions’ rights. A recent case argued whether state laws can permit mandatory fees for workers to pay for the support services that unions are legally to provide all employees.

The ruling in NIFLA, most likely in June, will either leave the California law in place or give pro-choice activists the grounds to argue against laws in other states that require doctors to give pregnant patients the false information that abortions cause breast cancer and infertility. The NIFLA lawyers argue that posting information “unconstitutionally compels [the clinics] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak.” A ruling in their favor might take the shackles off abortion providers and other doctors so they can deliver “the messages they have chosen to speak.” Breyer said that the court’s most important job is “to keep sauces the same.”

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