The California Act that required licensed clinics that primarily serve pregnant women to notify patients that California offers free medical and unlicensed clinics to notify patients that they are not licensed to provide medical services. The Act was challenged by crisis pregnancy centers that aimed to discourage women from obtaining abortions.
States may regulate professional conduct, even though that conduct incidentally involves speech.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) required licensed clinics that primarily serve pregnant women to notify patients that California offers free or low-cost services including abortions, and to prove them a phone number to call. The Act also required unlicensed clinics to notify patients that those clinics are not licensed to provide medical services in California. The Act was challenged.
Does the California Act – that required licensed clinics that primarily serve pregnant women to notify patients that California offers free medical and unlicensed clinics to notify patients that they are not licensed to provide medical services – violate the First Amendment?
Yes, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is entirely unrelated from California’s informational interest. The application of the unlicensed notice to advertisements demonstrate how burdensome it is. Thus, the Act violates the First Amendment.
The majority wrongly applied heightened scrutiny to the Act. Most human behavior takes place through speech and virtually every disclosure law requires individuals to speak a particular message. Moreover, with respect to the unlicensed clinics, there is no basis for finding the State’s interest hypothetical. California heard that information-related delays in qualified healthcare negatively affect women seeking abortions. The Act does not distinguish between facilities that favor pro-life and those that favor pro-choice points of view. There is no evidence that discrimination was the purpose or effect of the statute.
By requiring primarily pro-life pregnancy centers to promote the State’s own preferred message of advertising abortions, the State compels individuals to contradict their beliefs grounded in basic philosophical, ethical, or religious precepts. The Act that entails viewpoint discrimination seriously undermines the constitutional principles.
The licensed notice is a content-based regulation of speech and the FACT Act regulates speech as speech. California, however, has failed to provide any persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. California’s alleged goal to educate low-income women about the services it provides renders the licensed notice underinclusive because the notice applies only to clinics that have a primary purpose of providing pregnancy-related services. Such underinclusiveness raises a serious doubt about whether the government is pursuing the interest it invokes rather than disfavoring a particular viewpoint.