A Supreme Court decision in favor of anti-abortion groups could come back to haunt them

In an ironic twist, the Supreme Court’s Tuesday ruling in favor of anti-abortion groups could one day backfire on their cause.

by Carter Sherman
Jun 26 2018, 4:29pm

In an ironic twist, the Supreme Court’s ruling in favor of anti-abortion groups could one day backfire on their cause.

The justices ruled Tuesday to block the enforcement of a California law requiring religious, anti-abortion facilities to post information about state-sponsored family planning services. But the decision — which is technically about free speech, not abortion — suggests that state regulations on abortion providers’ speech — which anti-abortion groups have long championed — may soon be in the Supreme Court’s crosshairs.

The case, National Institute of Family and Life Advocates v. Becerra, started in 2015, when California passed a law requiring its 200-odd so-called “crisis pregnancy centers” to display specific information. These facilities, which are typically Christian, offer women services like ultrasounds, while trying to convince them to not get abortions.

In a measure California called a commonsense protection for patients, the state mandated each crisis pregnancy center post a sign letting patients know whether the facility was medically licensed. The law also required these centers to list information about California’s family planning services, which includes access to low-cost abortion.

READ: Seven states have only one abortion clinic left. We talked to the people keep them open.

Predictably, the centers hated the law — and several groups, including the anti-abortion organization National Institute of Life and Family Advocates, promptly sued the state, arguing that the law violated their First Amendment right to free speech. In court records, the centers said that the law undercut their mission to “encourage and support women in choosing to give birth to their unborn children.”

On Tuesday, the Supreme Court agreed. In the majority ruling, which four other justices joined, Justice Clarence Thomas decreed that requiring the centers to post notices about family planning and their medical licenses imposed too great a burden on their right to free speech.

“California cannot co-opt the licensed facilities to deliver its message for it,” he wrote.

Thomas, however, also left open the possibility that Tuesday’s ruling could come back to haunt abortion foes: He hinted that in a future case the Court might move to block some state regulations on so-called “professional speech,” which is exactly what it sounds like — speech made by a trained professional, in a professional situation.

Like, for example, what doctors might tell patients seeking abortions.

Right now, 35 states require women to undergo counseling before they receive abortions. But supporters of abortion rights say that many of these states force healthcare providers to give their patients information that simply isn’t true. For example, five states’ counseling materials falsely tell women that abortions are linked to breast cancer, according to the Guttmacher Institute.

READ: Medical community slams study pushing "abortion reversal" procedure

The Supreme Court has never officially outlined the rules for regulating “professional speech,” or, indeed, recognized it as a category of speech at all. But in his opinion, Thomas seemed worried that states may have gone too far in regulating professional conversations between doctors and their patients.

“Throughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities,” Thomas wrote, adding, “All that is required to make something a ‘profession,’ according to these [state] courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

Ultimately, Thomas demurred from ruling on restrictions on doctors’ speech and wrote that the justices didn’t need to do so to resolve the questions posed in case they decided on Tuesday.

In a statement, California Attorney General Xavier Becerra vowed to keep fighting to uphold the law, as the case returns to the lower courts.

“When it comes to making their health decisions, all California women — regardless of their economic background or ZIP code — deserve access to critical and non-biased information to make their own informed decisions,” he said. “Today’s court ruling is unfortunate, but our work to ensure that Californians receive accurate information about their healthcare options will continue.”

Cover image: Anti-abortion supporters attend a rally outside the Supreme Court in Washington, Tuesday, March 20, 2018, as the Supreme Court hears arguments in a free speech fight over California's attempt to regulate anti-abortion crisis pregnancy centers. (AP Photo/Andrew Harnik)