In oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra, the case about whether the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act’s disclosure requirements violate the First Amendment rights of crisis pregnancy centers, Justice Stephen Breyer—ever the harried professor—made a salient, albeit somewhat oddly stated point. He said, “What is sauce for the goose is normally sauce for the gander.”
I’ve never heard the saying phrased that way (I always thought it was “what’s good for the goose is good for the gander”). But the point he was trying to make remains: Anti-choicers want to be able to force doctors to lie to pregnant people about their reproductive health care choices, with ever more oppressive informed consent requirements. All the while, they are complaining that the First Amendment rights of fake clinics commonly referred to as crisis pregnancy centers (CPCs) have been violated when a state like California requires that they be honest with their clientele about the services they provide and whether or not they’re even licensed to provide services in the first place.
And in a 5-4 decision, with Justice Clarence Thomas writing the majority opinion, the Court has allowed anti-choicers to bask in this hypocrisy.
Some background is in order: In 2015, California lawmakers passed the Reproductive FACT Act, which, essentially, is a mandatory disclosure bill. Lawmakers passed the law in response to allegations that businesses posing as reproductive health-care clinics were providing pregnant people with misleading and sometimes dangerously inaccurate information about their pregnancies and their options.
During hearings on the bill, the legislature found that CPCs hindered the ability of California patients to receive comprehensive and accurate information about their reproductive rights. CPCs employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care,” according to early legislative analysis done on the bill and cited in court documents.
The Reproductive FACT Act disclosures are extremely straightforward. Facilities that are licensed as pregnancy centers by the state must display a brief statement disclosing that California offers access to free and low-cost birth control and abortion care, along with a number to call for more information. Unlicensed centers must disclose, in up to 13 languages, that they are not medical facilities and do not offer medical care.
But today, the Supreme Court carved out a special disclosure rule for crisis pregnancy centers. That disclosure rule is this: They don’t have to disclose jackshit.
They don’t have to disclose that they aren’t licensed medical centers (if indeed, like so many of the CPCs in California, they are not). They don’t have to disclose to the vulnerable people that they target—low-income women, women of color—that these people may be eligible for free or low-cost family planning services including contraception and abortion (two important pregnancy-related health care services that crisis pregnancy centers proudly don’t provide). They don’t even have to disclose that the staffers in the clinics, outfitted in lab coats and stethoscopes, are just playing make-believe—they’re not really doctors.
It should be a no-brainer: Businesses shouldn’t be able to lie and deceive consumers. California submitted ample evidence that that is exactly what CPCs do.
And Thomas essentially threw up his hands and said, “So what?”
Thomas’ opinion is terrible, and not just because I rarely agree with anything he writes, says, or does. It’s terrible because it disregards Supreme Court precedent and contorts the law to fit his anti-choice objective.
Thomas’ biggest hurdle is Planned Parenthood v. Casey, the 1992 case best known for developing the undue burden standard when it comes to determining whether abortion restrictions are unlawful. Casey is the big elephant in the room; it is standing in the way between Clarence Thomas and sound logic, and he can’t get around it.
In Casey, a plurality of the Court upheld a mandatory disclosure law against a First Amendment challenge. The Casey plaintiffs challenged a requirement in Pennsylvania that abortion providers inform their patients about the nature of the abortion procedure—the health risks of abortion and childbirth, and how far along the pregnancy is. The Pennsylvania law also requires physicians to inform their pregnant patients about the availability of materials printed by the state that provide information about the child and various forms of assistance. The Court rejected a free speech challenge to this requirement. Thomas tries to get around this incongruity by explaining that the disclosures in Casey “regulated speech only a part of the practice of medicine.”
“The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct,” Thomas wrote.
“The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed,” he continued.
This is nonsense, and Breyer ably dismantles it in his dissent: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?”
Why not, indeed.
Clinics should not be able to erect storefronts, hire anti-choicers to cosplay as doctors, and do and say all the things that would make a reasonable pregnant person believe they are at a health-care clinic that provides health-care services, even though they are not. But then they turn around and cry about the First Amendment when a state that is trying to protect vulnerable women and pregnant people from CPCs’ deception tells those fake clinics that they need to post a notice informing their clients that they’re not actually doctors and that they don’t actually provide the services that a pregnant person seeking an abortion is looking for.
This should have been an easy case for the Court to decide. Nothing in the FACT Act compelled CPC staffers to speak. The law requires licensed centers to post a notice of the existence of a state program with the number to call for more information, and it requires unlicensed centers to disclose the fact that they are not licensed. These are disclosures of facts, not political opinions about abortion or contraception.
And unlike some state laws that mandate abortion providers read a government-sponsored script to patients when performing an ultrasound, or others that require doctors to inform patients incorrectly that abortion causes breast cancer, the California Reproductive FACT Act doesn’t require employees at these CPCs to say a single word.
But we are down the rabbit hole. The rules that normally apply apparently don’t apply to evangelicals who are looking to impose their will on vulnerable people. Lies are not normally protected free speech. But on Tuesday, the Court in NIFLA made it clear that if they are lies related to abortion, they are.