National Institute of Family and Life Advocates v. Becerra

DOES THE ACT REGULATE COMMERCIAL OR PROFESSIONAL SPEECH?

NIFLA argues that the clinics to which the Act applies engage in fully protected, pro-life speech. In this vein, NIFLA denies that the clinics’ speech should receive lesser scrutiny because it is either commercial or professional in nature. . First, NIFLA points out that pro-life clinics are non-profit organizations that do not charge for the services they provide and do not function for commercial purposes—i.e., their speech is non-commercial. Instead, NIFLA maintains that these clinics exist to propagate their pro-life views, making them expressive rather than economic entities. Even if the clinics’ speech could be characterized as commercial to some extent, NIFLA notes that the Court has declined to recognize speech as commercial in nature when it is “otherwise inextricably intertwined with fully protected speech.”

In terms of professional speech, NIFLA emphasizes that the Supreme Court has never recognized such a category for First Amendment purposes. Moreover, NIFLA challenges the Ninth Circuit’s finding that the Act regulates speech within the professional relationship at all, observing that it requires licensed clinics to disclose information as patients enter and mandates that unlicensed clinics include information in their advertising materials. Thus, NIFLA asserts that the Act compels speech between the clinics and visitors before any real professional relationship commences. Finally, NIFLA refutes the notion that the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey established a lower standard of scrutiny for speech regulations in abortion cases, claiming that this decision simply acknowledged that the government may impose minimal informed disclosure requirements on medical professionals performing serious procedures. Because pro-life clinics do not offer abortions, NIFLA contends that Casey is not relevant.

California replies that whether pro-life clinics charge for services is irrelevant under the Supreme Court’s free speech precedents. According to California, in prior cases involving the free provision of legal services, the Court focused on whether the government improperly interfered with the plaintiffs’ associational rights, not on whether the plaintiffs demanded payment. California claims that a rule imposing greater scrutiny for regulations on the speech of non-profits contravenes the policy that a client’s reliance on professional advice does not change depending on their ability to pay for that advice. Indeed, California points out that indigent patients who seek free reproductive health services from pro-life clinics are more likely to benefit from the disclosures that the Act requires than are other, wealthier patients.

California contends that the Supreme Court has implicitly recognized a category of professional speech based on the notion that the government can regulate the practice of licensed professions. California observes that licensed clinics claim to exercise professional judgments on behalf of their clients and should therefore be subject to regulation as part of the medical profession. Further, California maintains that the required disclosures are professional even if they are made by non-professional staff members, since state law places all licensed clinics under the supervision of a licensed doctor. California cites Casey in support of this proposition, claiming that it upheld abortion disclosure requirements “in light of [their] professional character and context.” Moreover, California asserts that the Act’s notice provisions for licensed clinics are less burdensome than the disclosures that the Court sustained in Casey. Finally, California contends that Act’s notice provisions for unlicensed clinics fall squarely within a long line of cases permitting the government to ask that organizations clarify their professional status to the public.

DOES THE ACT COMPEL SPEECH OR REGULATE IT BASED ON ITS CONTENT?

NIFLA contends that the Act must be subjected to strict scrutiny because it compels pro-life clinics to speak the government’s pro-choice message in violation of the First Amendment’s embedded guarantee of a right to remain silent. NIFLA asserts that this is true even if the Court accepts that the Act requires purely factual disclosures given that “either form of compulsion burdens protected speech.” Because the Act compels speech, NIFLA adds that it constitutes a “presumptively unconstitutional” content-based speech regulation under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert. NIFLA alleges that the Ninth Circuit erred in finding that historical “exceptions” to Reed’s strict scrutiny rule paved the way for a new professional speech doctrine. In fact, NIFLA asserts that these exceptions cover only content-based regulations of unprotected speech and do not extend to regulations of protected speech like the Act. NIFLA stresses that the Act’s specific dissemination requirements will crowd out the affected clinics’ attempts to espouse their pro-life viewpoints because the notice confronts clients the moment they enter and must be printed in multiple languages with a large font. Thus, NIFLA concludes that the Act simultaneously suppresses and forces speech.

California repudiates the claim that the Act unconstitutionally suppresses speech, observing that pro-life clinics remain free to promote their views on family planning independent of the required notices. California further claims that NIFLA never raised its objections to the Act’s multiple language and font conditions before the district court and that the record does not support these contentions. Turning to compelled speech, California asserts that the Act does not run afoul of either the Supreme Court’s precedents in this area or its recent decision in Reed. Beginning with the compelled speech cases, California observes that the Act does not demand that the clinics endorse any belief—instead, it asks them to post neutral facts regarding the availability of state-funded programs or their own licensing qualifications. California contends it is unlikely that anyone will take the notices to be expressions of the clinic’s own views. California also questions whether the Act compels speech at all, suggesting instead that it enforces “expressive conduct,” which is subject only to intermediate scrutiny under existing First Amendment jurisprudence. As for the contention that Reed mandates strict scrutiny for all content-based regulations of speech, California highlights how such an interpretation would threaten innumerable longstanding laws which the Supreme Court has never understood to be invalid under the First Amendment.

DOES THE ACT DISCRIMINATE BASED ON VIEWPOINT?

NIFLA alleges that the Act is unconstitutional because it impermissibly discriminates based on viewpoint. NIFLA underscores two aspects of the statute to support this argument: its legislative history and practical effect. According to NIFLA, the Act’s exemptions for clinics that are already enrolled in California’s state-funded medical programs—and thus already provide abortions—combined with its failure to cover doctors in private practice and licensed general practice clinics indicates that it was intended to target only pro-life clinics. As NIFLA points out, the First Amendment bans such targeting if it is based on opinions that the government dislikes. NIFLA further asserts that this dislike is apparent from statements that the Act’s legislative sponsor made noting the “unfortunate” number of crisis pregnancy centers in California. Ultimately, NIFLA urges the Supreme Court to adopt a rule that viewpoint discrimination against private speakers is per se unconstitutional.

California rejects the assertion that the Act discriminates against clinics based on their pro-life stance. In terms of the Act’s applicability, California observes that it would not make sense to ask clinics that are enrolled in state-funded medical programs to disclose a list of services they already provide. Moreover, California asserts that NIFLA misreads the Act’s legislative history—the bill’s sponsor was expressing dismay over the alleged deceptive practices that crisis pregnancy centers often deploy to mislead women, not over their opinion that abortion is reprehensible. Thus, California maintains that the Act should not be subjected to heightened scrutiny because it is not viewpoint-discriminatory.

DOES THE ACT SURVIVE THE APPROPRIATE LEVEL OF SCRUTINY?

NIFLA argues that the Act would fail any level of judicial scrutiny. Under strict scrutiny, NIFLA asserts that California cannot show either a compelling interest or that they selected the least restrictive means to serve that interest. According to NIFLA, California’s general interest in informing women of their reproductive health options or, alternatively, in separating licensed from non-licensed clinics is too broad to qualify as compelling. Further, NIFLA lists several means that California could have employed to serve these same interests without burdening the speech rights of pro-life clinics, including compiling a public registry of unlicensed clinics, prosecuting clinics for fraud, or initiating an advertising campaign to provide women with the same information. Because California failed to pursue any of these options, NIFLA contends that the Act should be struck down under strict or intermediate scrutiny.

California claims that the Act survives no matter what standard of constitutional scrutiny applies. Specifically, California refutes the argument that a registry or public advertising campaign could have achieved their stated interest because neither of these methods would have been effective in reaching women seeking reproductive health care. California likewise observes that the alternative option of prosecuting individual clinics for fraudulent practices might result in even more aggressive policing of pro-life speech than the approach that the Act adopts. Accordingly, California posits that it has selected the means least likely to burden speech in furtherance of its critical interest in women making independent informed judgments regarding their own health care.