High court looks set to strike down disclosure law for pregnancy centers

WASHINGTON – The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers – including those that are faith-based – to notify women that the state offers subsidies for abortion.

The state Legislature adopted the disclosure rule three years ago based on concerns that more than 200 “crisis pregnancy centers” sometimes used “deceptive advertising and counseling practices that often confuse (or) misinform” pregnant women about their options.

Under the law, the nonprofit centers must post a prominent notice if they have “no licensed medical provider” available. Centers that are licensed must go further and notify clients that the state offers “free or low-cost” contraception, prenatal care and abortion.

The state’s lawyers defended the law on the grounds that warnings and disclosures are routine for hospitals, doctors and prescription drugs. They noted that the Supreme Court in the past has upheld the principle of “informed consent,” including in abortion cases.

But during Tuesday’s argument, most of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law.

“If it has been gerrymandered, that’s a serious issue,” said Justice Elena Kagan. Agreeing, Justice Samuel A. Alito Jr. said the law “has a lot of crazy exceptions. … What you’re left with is a very strange pattern, and, gee, it turns out just about the only clinics that are covered by this are pro-life clinics.”

Others said it violated the First Amendment by requiring these private clinics put out the state’s message. Justice Anthony M. Kennedy described the required notice as “mandating speech” that “alters the content of the message.”

Justice Neil M. Gorsuch agreed the state would want people to have “full information about their options,” but why put the burden on these centers? The state has “other means to provide messages. … It’s pretty unusual to force a private speaker to do that for you under the First Amendment,” he said.

Still others voiced concern over the advertising burden put on small, nonprofit centers. Michael P. Farris, a lawyer for the centers, said advertisements, including billboards, would have to include disclosures in large print and in 13 languages.

Justice Ruth Bader Ginsburg told the state’s lawyer she found that troubling. “If you have to say that, those two sentences in 13 different languages, it can be very burdensome,” she said.

“What would happen if an unlicensed center just had a billboard that said, ‘Choose Life.’ Would they have to make the disclosure?” Kennedy asked. “Yes, your honor,” Farris replied. “It would be 29 words, in the same size font as ‘Choose Life’?” Kennedy continued.

Yes, Farris said, “and in the number of languages required by that county.”

Kennedy said he had heard all he needed to hear. “It seems to me that means that this is an undue burden. And that should suffice to invalidate the statute,” he said.

Only Justice Stephen G. Breyer spoke strongly in defense of the state law, and he did so based on a high court ruling from 1992. Then, the justices upheld a Pennsylvania law that required doctors who performed abortions to tell patients about agencies that helped with adoptions or with prenatal care.