Free speech and abortion access will clash at the Supreme Court

Opponents of abortion will come to the Supreme Court on Tuesday to challenge a California law they say is an unconsti...

Posted: Mar 19, 2018 9:11 PM
Updated: Mar 19, 2018 9:11 PM

Opponents of abortion will come to the Supreme Court on Tuesday to challenge a California law they say is an unconstitutional violation of their free speech rights in a case that could impact what states can and can't direct abortion providers or opponents to tell women.

The law, passed in 2015, requires licensed pregnancy centers to inform their clients about the availability of state-subsidized family planning services -- including abortion. California argues the law is a neutral regulation aimed at informing women of their health care options, but religiously affiliated pregnancy centers run by groups that oppose abortion access say it forces them to deliver a message that is both detrimental to their cause and in direct conflict with their mission to encourage childbirth.

As of Monday morning, a line had already formed outside the court to get into Tuesday's arguments, including people with sleeping bags.

This is one of several First Amendment cases the justices are considering this term. The court has already heard challenges from a Colorado baker who refused to make a cake celebrating a same-sex marriage and a Minnesota man blocked from wearing a tea party shirt to his polling place.

How the court rules could also determine the fate of so-called "informed consent" laws, where states direct doctors to tell patients about potential ramifications of an abortion.

In addition, Tuesday's arguments represent the first abortion-related case that conservative Justice Neil Gorsuch will hear since he came to the high court last year.

'Reasonable licensing' or government interference?

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act requires licensed clinics, which provide services like ultrasounds, to disseminate a notice stating that California has programs providing "immediate, free or low-cost access" to comprehensive family planning services.

The religiously affiliated centers lost their challenge to the law before a California-based federal appeals court.

The 9th US Circuit Court of Appeals said the state has a substantial interest in "ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion."

It ruled the California law amounted to "reasonable licensing" by the state.

The clinics, represented by the conservative Alliance Defending Freedom, are now appealing the decision to the Supreme Court, arguing that the lower court used too lax a standard when reviewing the law. The Alliance Defending Freedom is the same group behind the Supreme Court challenge brought by the Colorado baker who refused to make a cake for the marriage of a same-sex couple.

Both cases concern arguments that the government is unlawfully compelling speech from private parties.

In Tuesday's case, Michael P. Farris, the group's attorney, will tell the justices that the government can't force the clinics to deliver a message that goes against their core convictions. They say the law discriminates based on their anti-abortion viewpoint.

"The First Amendment protects an organization's ability to advocate for viewpoints in accordance with its mission, free from government interference with that expression," Farris argues in court papers.

The law also requires unlicensed clinics -- those that provide resources such as vitamins and diapers but have no medical providers on site -- to disseminate a notice that they are not licensed by the state. Violators are liable for a civil penalty of up to $500.

Central to Farris' argument is the fact that the law exempts providers that enroll patients in state programs that provide abortion and contraception services.

"It targets speakers with a particular viewpoint and forces them to advance the State's viewpoint-biased message," Farris said, adding, "this the government cannot do."

On the other side, California Attorney General Xavier Becerra argues that about 700,000 women in the state become pregnant each year and about half of the pregnancies are unintended. The law, Becerra argues, shouldn't trigger heightened scrutiny from the courts because it doesn't require anyone to refer a client for an abortion but simply ensures that women will have the information they need "at a critical moment."

"The First Amendment does not bar states," Becerra writes in court papers, from such a "carefully neutral" notice.

Supporters of the law -- including groups such as the Center for Reproductive Rights, NARAL and Planned Parenthood -- say it was necessary because some clinics tried to disguise the fact that they oppose abortion.

"The clinics were masquerading as full service reproductive health clinics and deceiving women into thinking they could get bona fide reproductive health care," said Amy Myrick, a staff attorney at the Center for Reproductive Rights. "In fact, the clinics don't make abortions and contraceptive coverage available."

Myrick penned a friend of the court brief in support of the law that includes the testimony of women who had visited similar clinics across the country.

Cherisse Scott, for instance, declared that when she lived in Chicago she found an advertisement in the phone book for a clinic that said, "Need abortion? Call us." Once she was there, Scott said, she was shown "graphic and inaccurate videos" about abortion for nearly three hours. After asking for an abortion she was finally told that the clinic did not provide them.

The Trump administration takes a middle ground in the case. Solicitor General Noel Francisco argues that the law, as applied to the licensed centers, violates the First Amendment and the state has "multiple alternative" ways to pursue its objectives -- including advertising its services itself.

But he argues that the justices can uphold the provision aimed at unlicensed centers because they constitute a requirement to simply provide "accurate, uncontroversial" facts about their services.

Impact on 'informed consent' laws

How the court rules could impact other laws across the country. Supporters of abortion access say that if the court strikes down the California law, there could be a silver lining to the loss.

They believe such a ruling could negatively impact a different type of regulation, "informed consent laws." They are opposed by supporters of abortion rights, who feel the laws are misleading and are meant to deliver information about potential dangers of the procedures in an effort to dissuade women from electing to go through with an abortion.

"Several states have laws on books that require providers to give women misleading or untruthful information about discredited links between breast cancer and abortion or mental health harms and abortion," said Myrick. "If the Court strikes down the California law as a free speech violation those laws should clearly be found to be unconstitutional."

The case is likely to be decided by July.

Indiana Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 50300

Reported Deaths: 2748
CountyConfirmedDeaths
Marion11920692
Lake5432248
Elkhart347058
Allen2902133
St. Joseph205169
Hamilton1665101
Cass16449
Hendricks1446100
Johnson1325118
Porter80238
Tippecanoe7599
Clark68144
Vanderburgh6816
Madison67264
LaPorte60527
Howard59458
Bartholomew59345
Kosciusko5704
Marshall5308
Noble50128
LaGrange4829
Jackson4783
Boone47444
Delaware46952
Hancock46036
Shelby43525
Floyd40444
Morgan33631
Monroe32928
Grant30926
Dubois2976
Henry29717
Montgomery29720
Clinton2893
White26810
Decatur25532
Dearborn25423
Lawrence25225
Vigo2478
Warrick24329
Harrison21722
Greene19332
Miami1922
Jennings17912
Putnam1728
DeKalb1674
Scott1639
Wayne1536
Daviess15017
Perry1459
Orange13723
Steuben1362
Jasper1332
Franklin1278
Ripley1277
Wabash1152
Carroll1132
Gibson1132
Fayette1057
Whitley1045
Newton10010
Starke983
Huntington932
Randolph794
Wells791
Jefferson782
Fulton731
Jay680
Washington681
Knox670
Clay665
Pulaski661
Rush613
Posey550
Owen521
Benton510
Spencer501
Adams491
Sullivan471
Brown431
Blackford402
Fountain352
Crawford330
Tipton321
Switzerland300
Martin240
Parke230
Ohio220
Vermillion200
Warren151
Union130
Pike110
Unassigned0193

Ohio Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 62856

Reported Deaths: 3032
CountyConfirmedDeaths
Franklin11433443
Cuyahoga8786393
Hamilton6563207
Lucas2889305
Marion274039
Montgomery237835
Summit2299209
Pickaway221641
Mahoning1907239
Butler176747
Columbiana135060
Stark1196114
Lorain109769
Trumbull103277
Warren94525
Clark79310
Delaware67515
Fairfield64317
Tuscarawas60110
Lake57022
Belmont56722
Medina56632
Licking56012
Miami50331
Portage48759
Wood47451
Clermont4537
Ashtabula44544
Geauga42543
Wayne37253
Richland3635
Allen34841
Greene3229
Mercer29510
Erie26722
Holmes2575
Darke25326
Huron2382
Madison2139
Ottawa16624
Sandusky15715
Washington14420
Coshocton1413
Ross1393
Crawford1385
Putnam13415
Hardin12312
Morrow1211
Athens1111
Auglaize1094
Jefferson1052
Muskingum961
Union931
Monroe8917
Hancock851
Lawrence820
Preble821
Hocking809
Clinton791
Guernsey793
Shelby744
Williams742
Logan681
Fulton660
Scioto650
Carroll643
Ashland632
Wyandot625
Brown601
Fayette550
Defiance533
Knox531
Champaign511
Highland491
Van Wert451
Perry411
Seneca402
Henry330
Paulding280
Jackson270
Pike270
Adams251
Vinton232
Gallia201
Noble130
Harrison121
Meigs120
Morgan120
Unassigned00
Fort Wayne
Scattered Clouds
86° wxIcon
Hi: 86° Lo: 64°
Feels Like: 86°
Angola
Few Clouds
82° wxIcon
Hi: 82° Lo: 62°
Feels Like: 82°
Huntington
Broken Clouds
87° wxIcon
Hi: 86° Lo: 63°
Feels Like: 87°
Decatur
Scattered Clouds
84° wxIcon
Hi: 85° Lo: 64°
Feels Like: 84°
Van Wert
Scattered Clouds
84° wxIcon
Hi: 86° Lo: 64°
Feels Like: 84°
Sunday starts wet, ends dry
WFFT Radar
WFFT Temperatures
WFFT National

Community Events