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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, March 24, 2018

National Institute of Family and Life Advocates v. Becerra [Crisis Pregnancy Disclosures]

ETA: More on the case, crisis pregnancy centers and remarks about Julie Hilden (who sadly died young; I used to read her columns and turns how she had a major role at the website) here. The CA named defendant here recently tweeted about the move to add a citizenship question to the census. Not a fan -- he's on #TeamResistance. More here.

The oral argument of this case really bothered me.

The basic reason is a "good for the gander" concern that was voiced by Breyer as well as a "come on, this is necessary" concern that was more for Sotomayor (the "excuse me, don't buy it" justice on the left) to state.  More so, and this was if anything only barely dealt with in the oral argument, the law here generally seems so damn narrow. Licensed clinics have a general disclosure of what the state offers and a phone number; unlicensed clinics had to say they aren't licensed [which even the Trump Administration figured was okay].  As I said two years ago:
Generally, you shouldn't have to promote a message you despise, but crisis pregnancy centers put themselves out as health centers, including by look and action (such as ultrasounds). There a state has more power to regulate, including to guard against confusion.
California has specific rules that determine if a clinic can be "licensed," which to me has a certain cachet that some here seem to want to free ride on without the requirements often in place in such situations. During oral argument, you would think the line here was somehow ad hoc and artificial, including Alito (to the Trump representative!) so very concerned about treating professional speech differently.  But, we do this all the damn time. There are a range of disclosures required for licensed professionals in particular. These are licensed clinics. What is the problem?*

His reference to publishers, which raises a special First Amendment concern, was particularly specious.  MEDICINE particularly involves lots of disclosures and using strict scrutiny is particularly dubious and would not have upheld the requirements in Panned Parenthood v. Casey.  I use caps in part to address my aggravation with even the introduction of the case in a podcast with Leah Litman (liberal) not referencing the licensing point.  And, medicine is just what is involved here. The overall issue here is the "decision" regarding what to do regarding one's pregnancy. The challengers wanted to limit the nature of their role to avoid being put in the "informed consent" aspect of Supreme Court doctrine.  But, things should not be so narrowly drawn. Thus:
“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
(see my comment here).  If some states can require abortion providers hand out information on adoption and so forth, why cannot licensed (yes, I'll keep on saying this) family planning clinics be required to simply say that? As noted by the lower court, the disclosure is not slanted -- it merely lists the options. If someone is pro-life, they do not have to ask about abortion services.  The Supreme Court has said the state can gear informed consent to promote childbirth. Why cannot it also be used to promote choice? And, advertising or the like wasn't provided as an alternative to allow abortion clinics to not provide the information. This makes sense -- the specific women in need here very well might not see advertising or where to get it from the government. It makes sense to target the place they go, the clinics.
"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."
The law also has a confusion avoidance rationale, one partially based on a record of problems with crisis pregnancy centers.  So, this isn't the only concern.  Still, it provides much bite on its own.  As to the confusion rationale, the idea anti-fraud statutes would provide a narrow alternative falls for two reasons -- (1) the test shouldn't be so strict to necessarily warrant that (2) that only is so helpful. For one thing, even if the clinics are not guilty of "fraud," they might at the very least unintentionally mislead. A disclosure requirement -- which repeatedly was upheld in the political speech context without proof of actively misleading etc. -- makes sense.

I am okay with being concerned with the law along the edges (see this account from a left leaning type), including things such as font size required in advertising or the like.  OTOH, where has this concern post-Casey (which overruled pre-Casey case law on this very point, if cases that weren't First Amendment in nature, but based on the right to choose an abortion freely) as to various repeatedly biased informed consent laws? As to "gerrymandering" (the cite Kagan -- the oral argument suggests at least part of the law will be struck down by greater than a 5-4 vote), the article helpfully responds. The core of the law, however, should stand.

There is something of an irony here that if the pro-life clinics here win, there might be a Pyrrhic victory of sorts that even the advocate somewhat (moving past trying to make this not an informed consent case) grants. That is, if there is a First Amendment problem here, it might add strength (that won a few times in lower courts) to challenges by pro-choice groups to much more blatant biased and burdensome disclosure requirements. I'm wary of that, inclined to think some differentiation will be found though it might help, depending on how the opinion is written, and what lower court is involved.  We shall see.

But, I still think the core of this law is sound. And, it would be sound in other contexts, some which might require a similar bland statement of what the state offers at a licensed location of a left leaning sort.  The alternative will be either free speech on steroids or artificial line-drawing as we see regarding free exercise in the area of abortion funding. Finally, it would help if the Supreme Court showed equal concern for the free speech rights of pro-choice clinics. Rust v. Sullivan (Justice O'Connor dissenting) comes to mind. The one issue here though -- if one where the Supreme Court weighed various things in the balance, at times against the wishes of more conservative justices -- that they seemed to care about was the rights of pro-life protests.


* Judge Gorsuch suggested that it seemed weird to him for a private party to be required to inform clients of their rights here. More particularly, the issue here was informing people of state benefits, and "private parties" here involved licensed clinics. It is perfectly normal for disclosures to be in place for such regulated entities to include an informing function of this nature. Basically, as Sotomayor flagged, what is being done here is redefining "medicine" akin to those who want "health" in respect to abortion (and beyond) to only mean a narrow thing.

If this law is struck down as going too far, fine up to a point, but to belabor a theme, bigger game is at issue here.

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