Supreme Court to Decide whether States and Local Governments May Mandate Pregnancy Clinic Disclosures

California law requires that licensed pregnancy-related clinics disseminate a notice stating that publically-funded family planning services, including contraception and abortion are available. It also requires unlicensed pregnancy-related clinics to disseminate a notice they are unlicensed. The National Institute of Family and Life Advocates (NIFLA) operates 111 pregnancy centers in California. None offer abortions or abortion referrals; only 73 are licensed.

In NIFLA v. Becerra NIFLA claims that both requirements violate the First Amendment Free Speech Clause. The Ninth Circuit disagreed.

In Reed v. Town of Gilbert, Arizona (2015) the Supreme Court held that strict (usually fatal) scrutiny applies to content-based regulations on speech. The Ninth Circuit concluded that both notice requirements are content-based because they require clinics to engage in speech on a particular subject matter. But according to the Ninth Circuit Reed doesn’t require courts to apply strict scrutiny in all cases or in this case in particular. The Supreme Court has not held what level of scrutiny applies to abortion-disclosure cases.

The licensed notice is profession speech and the Ninth Circuit applies intermediate scrutiny to such speech. The court concluded the license notice survives intermediate scrutiny because California “has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion” and the notice “does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services.”

The court also held that the unlicensed notice survives any level of scrutiny including strict scrutiny. “California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state.” The unlicensed notice is narrowly tailored because it “helps ensure that women, who may be particularly vulnerable when they are searching for and using family-planning clinical services, are fully informed that the clinic they are trusting with their well-being is not subject to the traditional regulations that oversee those professionals who are licensed by the state.”

The Ninth Circuit’s ruling in NIFLA v. Becerra conflicts with a Second Circuit ruling in Evergreen Association v. City of New York. Among other things, the Second Circuit struck down a city ordinance requiring pregnancy service centers to disclose whether they provide abortions or abortion referrals.