The U.S. Supreme Court justices Tuesday heard arguments in its first abortion-related case under President Donald Trump, and “pregnancy centers” in San Jose and throughout Santa Clara County were center stage.
In a story that led nearly every major national news report this week, lawyers for the National Institute of Family and Life Advocates pleaded their case that a 2015 California law violates the First Amendment free-speech rights of their affiliates, which includes RealOptions in San Jose and Mountain View. In South County, there’s Informed Choices and the Hollister Pregnancy Center.
The highly anticipated case is being watched closely by more than 300 of these anti-abortion counseling centers in California, which for more than two years have been required to provide positive information about abortions. The centers, which were created to convince expectant mothers not to have abortions, stress adoption alternatives and offer free pregnancy tests.
Christine Vatuone, executive director of Informed Choices, was in Washington, DC Tuesday, and was not available for comment. Brigette Blair, director of the Hollister Pregnancy Center, declined to comment.
RealOptions has multiple clinics, including one right across the street from James Lick High School in San Jose’s East Side and another on The Alameda. The 37-year-old religious organization changed its name from Crisis Pregnancy Center of Santa Clara County in 2015 and saw a three-fold increase in the number of abortions prevented, according to a press release from the nonprofit. The organization has also benefitted from Google searches that direct people seeking abortions to RealOptions.
In a tour of a RealOptions clinic in San Jose long before this case made it to the high court, operators told a reporter that they tell clients that abortion is fraught with risk and leads to depression and other negative health outcomes. Of course, those claims have been repeatedly debunked, including by a new report out this week by the National Academies of Sciences, Engineering, and Medicine.
There are more than a dozen other pregnancy centers in Santa Clara County, including Life Advocates Inc. Gilroy. Some are affiliated directly with the Roman Catholic Diocese of San Jose, others are supported by evangelical Christian groups.
The question before the Supreme Court justices on Tuesday was whether a California law’s requirement that these faith-based “crisis pregnancy centers” provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates their free-speech rights under the First Amendment.
“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,” reported Amy Howe, of SCOTUSBLOG after the hearing in Washington, D.C.
The organizations had been unsuccessful at blocking the California law—The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT)—at the federal district court level, and the state was upheld by a 3-0 vote of the Ninth Circuit Court of Appeals last fall.
The federal appeals court at that time determined that the disclosure provision does not “encourage, suggest or imply” that a woman should pursue an abortion. Rather, it is “closely drawn to achieve California’s interest in safeguarding public health and fully informing Californians of the existence of publicly funded medical services.”
Arguing on behalf of the pregnancy centers, Howe reported that attorney Michael Farris quickly ran into questions from several of the court’s more liberal justices that boiled down to what Justice Stephen Breyer dubbed “what is sauce for the goose is sauce for the gander”: If a state that opposes abortion can require a doctor who performs abortions to tell a pregnant woman about the possibility of adoption, why can’t a state that supports abortion rights require a doctor to tell a pregnant woman about the availability of free or low-cost abortions?
Justice Sonia Sotomayor appeared to agree. If you decide to talk about pregnancy, she asked Farris, why shouldn’t you be required to tell people that you are not a doctor?
Farris and Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the federal government, tried to distinguish between the two kinds of disclosures, stressing that requirements to inform pregnant women about alternatives to abortion only come into play when medical procedures are being provided, and that the unlicensed clinics are not providing such procedures.
But Sotomayor was skeptical, telling Wall that the clinics sometimes provide ultrasounds and pregnancy tests.
“I don’t know how” pregnancy counseling, she continued, “is not part of medical advice in the same way a doctor gives it when he’s considering an abortion procedure. I don’t understand the difference.”
Justice Samuel Alito was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?”
Howe reported that Joshua Klein, the deputy state solicitor general who argued for California, tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions.
Justice Neil Gorsuch asked Klein, why can’t the state use other methods to make sure that pregnant women are aware of their options, rather than free-riding “on a limited number of clinics to provide that information”? “If you’re trying to educate a class” of people “about their rights,” Gorsuch stressed, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked Farris what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement?
“By the time the oral argument had ended, California’s law seemed like it could be in real trouble,” said Howe.
The justices could ultimately decide to strike down part or all of the California law, while leaving open the possibility that a more generally applicable law might pass constitutional muster. A decision is expected by the end of June.
California Attorney General Xavier Becerra was the named defendant in the lawsuit.
“Information is power,” Becerra said in a statement, “and all women should have access to the information they need when making personal health care decisions.”
The 2015 California law imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions.
Centers that are not licensed to provide medical services—but 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. California’s attorney general and local-government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.
The centers went to court, arguing that the law violates the First Amendment. First, they contended, requiring medical centers to post signs containing a phone number for information about low- or no-cost abortions is at odds with the anti-abortion message they want to convey. Moreover, they said, the law requires only groups that are opposed to abortion to relay the message, singling them out based on their views.
Second, they asserted, the disclosures required for centers that are not licensed to provide medical services have two undesirable effects: The disclosures are so extensive and burdensome “that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media”; and those centers are compelled to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”
The centers said they are targeted because their message is unpopular with the state’s elected leaders.
“The state, rather than using countless alternative ways to communicate its message, including its own powerful voice, instead compels only licensed facilities that help women consider alternatives to abortion to express the government’s message regarding how to obtain abortions paid for by the state,” says the petition filed by the National Institute of Family and Life Advocates.
A version of this article first appeared in the Gilroy Dispatch, San Jose Inside/Metro Silicon Valley’s sister publication. Jennifer Wadsworth also contributed to this report.
