Supreme Court weighs challenge to California’s abortion disclosure law

WASHINGTON — The Supreme Court is weighing whether to hear an anti-abortion group’s challenge on free speech grounds to a California law that requires “crisis pregnancy centers” — which advocate alternatives to the procedure — to also advise clients that the state offers free or low-cost contraception and assistance in ending their pregnancy.

The justices could announce as early as Monday whether they will hear the case, the latest in a series of clashes pitting the 1st Amendment against the state’s power to regulate the medical profession.

The California Legislature said two years ago that it was concerned that the more than 200 pregnancy centers in California sometimes provided “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed decisions” about their medical care. The socalled Reproductive FACT Act requires these centers to disclose whether they have medical professionals on the staff and to inform patients that the state offers subsidized contraception and abortion.

Last year, the U.S. 9th Circuit Court of Appeals upheld the law against claims that the disclosures were a kind of “compelled speech” that violated the 1st Amendment.

But three separate appeals are pending before the Supreme Court, including one from the National Institute of Family and Life Advocates, which says it has “over 110 nonprofit, pro-life pregnancy centers” in California.

At issue is whether “the state of California can compel nonprofit, faith-based, pro-life licensed medical facilities, against their religious convictions and identity, to advertise a government program that provides free or low-cost abortions,” wrote Jay Alan Sekulow, counsel for the American Center for Law and Justice and a personal attorney for President Trump.

Appealing on behalf of the LivingWell Medical Clinic and two others, Sekulow said the disclosure law violates “the principle that one cannot be conscripted into acting as a ventriloquist’s dummy for a government message.”

The justices have considered the appeals for more than three weeks in their weekly conferences, suggesting at least several of them are inclined to hear the cases.

Recently, lower courts have split on controversies arising from state regulations of medical professionals.

In a case dubbed “Docs vs. Glocks,” an appeals court in February struck down a Florida law that told doctors they could not question patients about whether they kept firearms at home. The National Rifle Assn. had pressed for the law, but the 11th Circuit Court in Atlanta ruled its restrictions violated the free-speech rights of physicians.

Sounding the same theme, judges struck down a North Carolina law that would have required doctors before performing an abortion to display for the woman a sonogram of the fetus and to describe the image. “This compelled speech provision violates the 1st Amendment,” the 4th Circuit ruled three years ago.

And in a case that is closest to the pending appeal from California, an appeals court in 2014 struck down most of a New York City ordinance that required pregnancy centers to notify patients whether they “provide (abortions) or provide referrals for abortion.” The 2nd Circuit Court said this provision “mandates discussion of a controversial political topic” and is therefore unconstitutional. However, the judges agreed the city could require these centers to disclose whether they had licensed medical professionals available.

By contrast, the 9th Circuit based in San Francisco has given the state more leeway to regulate the medical profession.