Justices skeptical of abortion speech law

Argument analysis: Justices skeptical of abortion speech law
Amy Howe
Tue, March 20th, 2018 4:03 pm

The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices.

The law at issue is the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, also known as the Reproductive FACT Act. The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help....

By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of the Reproductive FACT Act, while leaving open the possibility that a more generally applicable law might pass constitutional muster. We’ll know more by the end of June.