Analysis Law and Policy

Supreme Court Seems Ready to Disregard the Right to Access Unbiased Medical Information

Jessica Mason Pieklo

If the Alliance Defending Freedom and its anti-choice clients succeed here, fake clinics could feel free to continue to lie to patients—potentially endangering their health in the process.

The U.S. Supreme Court on Tuesday heard oral arguments in National Institute of Family and Life Advocates v. Becerra, the case challenging a California law that mandates certain disclosures for reproductive health-care facilities. Passed in 2015, the Reproductive Freedom Accountability Comprehensive Care and Transparency (FACT) Act is, at its core, a truth-in-advertising law—but it has become a proxy for conservatives’ war on reproductive health science.

The law places two different requirements on clinics in the state. Licensed clinics must post a notice that the state provides low-cost contraception and abortion services to those who qualify; unlicensed facilities must disclose that they are unlicensed. But just before the law was set to take effect, attorneys from the conservative litigation mill Alliance Defending Freedom sued on behalf of a group of licensed and unlicensed anti-choice “crisis pregnancy centers” (CPCs). They argued the law was not a regulation to protect consumers, but instead an unconstitutional attack on CPC free speech rights—because it forced these businesses to convey a “pro-abortion” message with which they disagree. Both a lower court and the Ninth Circuit Court of Appeals disagreed and upheld the law. But as oral arguments closed Tuesday, those rulings appeared to be in jeopardy.

Attorney Michael Farris from ADF took to the podium first, telling the justices that California lawmakers “took aim” at CPCs in drafting the FACT Act by making them “point the way” to abortion clinics in the state. This framing—that the law targets CPCs and no one else—is an essential component to ADF’s challenge and one Farris stuck to throughout his time before the Court. It may prove to be a winning strategy. He claimed lawmakers “gerrymandered” the law, drafting what looked to be a neutral regulation but one that was in reality riddled with exceptions that left only CPCs exposed to enforcement. Justices Samuel Alito and Anthony Kennedy seemed eager to latch onto this framing because it reinforces their worldview that anti-choice activists are persecuted “plump grandmothers” intent on “counseling” vulnerable patients, rather than a sophisticated network of political and business interests looking to gain as much access to public dollars as possible. Justice Elena Kagan appeared at times persuaded by this frame as well.

But if Farris was successful in pushing his framing that the law unfairly targets CPCs, his argument that the California disclosures are different than “informed consent” requirements affecting abortion clinics appeared to be less persuasive. In Planned Parenthood v. Casey, for example, the Supreme Court upheld a series of mandatory disclosures Pennsylvania lawmakers placed on abortion providers, including information that the state had some financial services available should a patient decide to carry a pregnancy to term. Justice Kagan wanted to know how California’s disclosure requirements were different. Farris claimed it was because in Casey, the disclosures were “triggered” by the fact that a medical procedure was imminent.

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CPCs, Farris stated, are not offering medical services—even the licensed ones.

That statement prompted Justice Sonia Sotomayor to launch what I see as the most important line of questioning in the entire case. Walking through the landing page of an unnamed CPC website, Sotomayor picked through in great detail all the services provided, including pregnancy tests and ultrasounds. She noted the website said the clients would be seen by nurses and that the centers follow Health Insurance Portability and Accountability Act, or HIPAA, privacy disclosure requirements. If there are no medical services provided, Sotomayor posited, why would a facility even mention complying with medical privacy laws?

Farris ran out of time before he could fully answer Sotomayor’s question—which is unfortunate, because in the entire hour of oral arguments, it was the only time the court’s attention focused on those affected by the deceptive business practices CPCs frequently engage in. According to a 2010 NARAL Pro-Choice California investigation into clinics in the state, 41 percent of California counties did not have an abortion provider (and that number has gotten worse since), while 91 percent of state counties had at least one CPC. The report states that the majority of CPCs in California are located in rural areas, and those CPCs that are located in urban cores tend to target low-income women of color as potential clients.

Of the centers investigated by NARAL-CA, 70 percent wrongly advised clients that abortion increases the risk of breast cancer, while 60 percent incorrectly claimed that condoms are ineffective in reducing pregnancy and sexually transmitted infections.

These numbers are staggering, and their implications for patients are devastating. Yet for an hour, even the liberal justices—with the notable exception of Sotomayor—appeared much more concerned with the burden complying with the California law placed on businesses, not the harm the law was designed to mitigate.

This is why I think this case will end up similar to McCullen v. Coakley, the 2014 Supreme Court decision that struck as unconstitutional a Massachusetts buffer zone law—a decision that erased the rights of abortion patients from the analysis entirely, in the service of anti-choice “free speech.”

Poor patients have few, if any, advocates in the U.S. health-care and legal systems. This is especially true for those in need of abortion and contraception services. Christian conservatives have succeeded in reframing the public debate over access to comprehensive and reproductive health care: The focus is no longer on the rights of patients to be free from unnecessary state interference in medical services, but on the rights of religious objectors to block access to care. We’ve seen this in McCullen and then later in the attempts to dismantle the birth control benefit in the Affordable Care Act . The same dynamic was present in the challenges to anti-discrimination provisions of the ACA that guarantee transgender patients access to non-discriminatory care.

And if Farris, ADF, and their anti-choice clients succeed here, we could see that dynamic extended to other laws that, like California’s, are designed to arm patients with all the information necessary to make a fully informed decision about their family planning options. Meanwhile, CPCs will feel free to continue to lie to patients, potentially endangering their health in the process.

We’ll know more later this summer, when the Court issues its opinion.

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