Constitution Daily

Smart conversation from the National Constitution Center

Justices to rule on abortion foes’ rights

November 13, 2017 by Lyle Denniston


Taking on a deeply controversial question about the rights of abortion foes when they set up counseling and treatment centers for pregnant women, the Supreme Court agreed on Monday to review the constitutionality of a two-year-old California law setting rules on what those facilities tell patients.

Specifically at issue is the centers’ claims that the law forces them, in violation of their First Amendment free-speech rights, to provide information about the availability of free or low-cost abortion or birth control, provided by the state. That is required of state-licensed centers. For those without a state license, they must make clear that they do not have a license and have no doctor on their staff.
Lower federal courts are split on the constitutionality of such requirements, the centers argued. They also urged the court to rule that such regulations must pass the most rigorous constitutional test – “strict scrutiny.” The U.S. Court of Appeals for the Ninth Circuit, in refusing last year to bar the state law from going into effect, did not apply that strong test.

While the Justices will be reviwing the free-speech claims, they refused to hear a separate claim that the state law also violates their rights to practice their religion, under the First Amendment’s free-exercise clause. The Ninth Circuit rejected that claim, as well as the free-speech challenge.

The case will be heard sometime early in 2018, with a ruling by next summer.

California’s legislature passed the law in October 2015, after finding that many women in California who become pregnant are unaware of the availability of public programs providing free or low-cost abortions or birth control. A committee of the legislature concluded that so-called “crisis pregnancy centers” sometimes do not provide women with full or accurate information about pregnancy-related services.

Before the law went into effect in January 2016, a group of licensed counseling and treatment centers, joined by unlicensed counseling facilities, challenged the constitutionality of both of the main provisions. Their challenge failed in both a federal trial court and in the Ninth Circuit Court.

The Supreme Court has ruled previously on the power of states, in their role as monitors of medical services, to require that women seeking abortions have information needed to give “informed consent” to ending their pregnancies. Sometimes, that information may be designed by a state to discourage abortion, and that has been allowed.

The Justices, however, have not ruled up to now on the power of states to write rules on what counseling centers or clinics operated by those opposed to abortion must tell pregnant women when they arrive for examination or treatment.

In taking that issue to the Supreme Court, a group of counseling centers that includes both licensed and unlicensed facilities argued that the state law “far exceeds the leeway” the Justices have given states in the past to require that pregnant women receive information before they decided to seek an abortion. The California rules apply even to a facility when it does not provide any medical procedure.

The law, they contended, specifically targets “pro-life facilities” by excluding from the law facilities that are involved in providing abortion and birth control. Thus, the law does not apply equally to all facilities that pregnant women might visit for advice about their situation.

The law, their appeal added, involves a form of “government compelled speech” by operators of the facilities, discriminating against specific points of view and interfering with discussion of sensitive issues like abortion. The Constitution, the document said, protects a right to refrain from speaking as well as a right to speak.

California defended its law in a filing with the Justices, arguing that the requirement that licensed centers provide information about state-funded abortion and birth control “falls well within” what the First Amendment allows states to do in regulating the medical profession and the availability of medical services. The notice of state programs is directly related to the practice of medicine by those centers, it added.

As to unlicensed facilities, the state document contended that the requirement of a disclaimer about lacking a license and lacking a medical professional on its staff is justified constitutionally as a means to “ensure that women are not misled about whether they are under the care of medical professionals.”

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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