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The Oral Argument in NIFLA at the Supreme Court and Limits on Freedom of Conscience for Healthcare Providers in the States

Another episode in the never-to-be-ended disputes over freedom of conscience played out in the U.S. Supreme Court last Tuesday. At issue in National Institute of Family and Life Advocates (NIFLA) v. Becerra was whether California’s FACT Act could require licensed, religious pro-life crisis pregnancy centers to publish statements informing pregnant women about state-provided abortion services or unlicensed centers to post prominent notices disclosing their unlicensed status. Despite the religious elements of the dispute, the argument before the Supreme Court ignored almost any discussion of constitutional protections for religious liberty and focused on protections for speech.

The some 130 crisis pregnancy centers that brought the suit are operated by non-profit religious organizations that oppose abortion. According to their briefing, “all of their speech is designed to encourage childbirth.” They provide pregnancy test kits, childbirth education, maternity clothing, diapers, baby clothes, parenting classes and adoption resources. The licensed centers also provide limited medical services such as pregnancy testing, prenatal vitamins, ultrasounds and health provider consultations.    

Crisis pregnancy centers have long faced opposition from organizations that support legal abortion. In 2015, California enacted the FACT Act, which targeted these facilities. The bill’s author contended that crisis pregnancy centers “pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions” and that their “intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The FACT Act requires licensed and unlicensed crisis pregnancy centers that provide two or more of a list of services to make mandatory disclosures. The list includes such things as providing prenatal care or pregnancy testing, and advertising that the center provides pregnancy tests or pregnancy options counseling. The statute exempts many medical facilities: it only applies to non-profit centers and excludes licensed clinics that are enrolled in Medi-Cal and participate in the state’s comprehensive family planning program. NIFLA noted that this program provides post-sex birth control and other contraception methods that NIFLA equated with abortion.

The Act requires licensed facilities to post or provide a notice stating “California has public programs that provide immediate free or low-cost access to family planning services . . . prenatal care and abortion for eligible women. To determine whether you qualify, contact the county services office at [telephone number].” Unlicensed facilities must post a notice onsite and in advertising materials stating they are not licensed and have no licensed medical providers onsite. Onsite notices must be in 48-point type. Notices in ads must be in larger point type than the surrounding text, and be provided in English and other languages required by the county. Los Angeles County requires 13 languages.

Days after the FACT Act was signed, NIFLA filed suit in federal court on free speech, free exercise of religion and due process grounds and sought a preliminary injunction against its enforcement. The district court denied the injunction and the Ninth Circuit affirmed. NIFLA then filed an appeal to the Supreme Court, based entirely on free speech grounds. It contended that the FACT Act notices are “compelled speech” that contradict the centers’ pro-life messages, and fail strict scrutiny because the state has less burdensome ways of accomplishing its goal of preventing misleading communications. NIFLA also contended that the FACT Act is discriminatory and per se unconstitutional, because it is only aimed at pro-life clinics. The State of California responded that the purpose of the FACT Act was to ensure that low-income women were aware that the state would pay for “comprehensive care” including abortions and prevent them from being misled by “limited service pregnancy centers.” The notice for unlicensed facilities was necessary to inform women seeking medical care that this was a non-medical facility that provided different and limited services. The notice for licensed facilities was needed to let women know about the availability of comprehensive care, and was appropriate as a non-ideological statement of fact delivered in a professional context.

It is risky to read too much into oral argument, but at least some Justices seemed more skeptical of the FACT Act’s requirements on unlicensed than those imposed upon licensed facilities. Justice Breyer focused on the Court’s decision in Planned Parenthood v. Casey,[1] which considered the opposite of the FACT Act – a Pennsylvania law requiring physicians, prior to preforming an abortion, to disclose the health risks of abortion and childbirth and provide information on medical assistance for childbirth, child support from the father and adoption agencies. In Casey, the Court found that this requirement, while constituting compelled speech, did not violate the First Amendment, but was appropriate as part of the state’s reasonable licensing and regulation of the medical profession. Justice Breyer argued “what is sauce for the goose is sauce for the gander . . . So, if a pro-life state can tell a doctor you have to tell people about abortion . . ., why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion. See? That’s simple.”

NIFLA argued that Casey was not analogous because the Pennsylvania law was part of informed consent procedures, which only apply when a physician is about to perform a procedure such as an abortion. It also argued that the FACT Act had been gerrymandered to only apply to pro-life facilities. This argument garnered interest from several Justices, including Justice Kagan, who called it a “serious issue.” Court precedent has found viewpoint discrimination highly suspect. The state countered that the FACT Act did not just apply to the 200 pro-life clinics in the state, but might apply to some “non-anti-abortion facilities,” the number of which it had not determined.

Several Justices expressed special concern with the requirements for unlicensed facilities, and asked whether a clinic that placed an ad or posted a sign that just said “Pro-Life” would be required to post the disclaimer “We’re not licensed.” The state’s attorney stated that it would. He also agreed with Justice Kennedy that “mandating speech that the speaker would not otherwise give – indeed does not agree with – alters the content of the message.” Justice Sotomayor commented: “That seems burdensome and wrong because it’s not tied to an advertisement that is promoting medical services.”

While at the district court level, NIFLA had, in part, based its request for an injunction on free exercise of religion, that doctrine did not play a significant role at the Supreme Court. This may be because during the past few decades the Supreme Court has weakened the doctrine, in 1990 holding that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability, even if it burdens or contradicts conduct that his religion requires.[2]

In 1993, Congress reacted by enacting the Religious Freedom Restoration Act (RFRA), which provides that a law of general applicability can be challenged if it substantially burdens the practice of religion.[3] But in 1997 in City of Boerne v. Flores,[4] the Supreme Court held RFRA unconstitutional as applied to the states. While some states have enacted their own versions of RFRA, most have not. Following pre-RFRA precedent, the district court rejected NIFLA’s free exercise argument, finding that the FACT Act was a neutral law of general applicability and that there was no evidence to suggest the Act burdened only conduct motivated by religious belief.[5]

However the Supreme Court rules on the NIFLA case, this will not settle the issue. There are several federal statutes that protect the conscience rights of healthcare providers and that apply to states that receive federal funds for healthcare such as Medicaid. The U.S. Department of Health and Human Services has just issued proposed regulations providing for administrative enforcement of these statutes. Assuming these rules become final, we could well see a challenge to the FACT Act by this route, as well.  

David Johnson can be reached at david.johnson@mrllp.com.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.

[1] 505 U.S. 833 (1992).

[2] Employment Division, Department of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990).

[3] 42 U.S.C. §§ 2000bb-2000bb-4.

[4] 521 U.S. 507 (1997).

[5] 2016 WL 3627327 (S.D. Cal., Feb. 9, 2016).