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21 March 2018, 07:56 | Lionel James
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Why is California defending the FACT Act?
Justice Sonia Sotomayor said web sites for unlicensed centers imply that they are medical facilities and provide medical advice.
The lawyer representing California also faced skeptical questioning about whether the disclosure requirement was unfairly "gerrymandered" to target crisis-pregnancy centers while granting exemptions to nearly everyone else.
It ruled the California law amounted to "reasonable licensing" by the state.
Should the state of California be allowed to force non-profit, often Christian, pregnancy centers to provide free advertising for abortion centers?
"California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state", Judge Nelson wrote.
The law also mandates that any non-medical pregnancy center, such as one that distributes free maternity clothing or baby items to a pregnant woman, must display a notice explaining that it is not licensed as a medical facility in the state of California.
"The First Amendment does not permit California to manipulate the marketplace of ideas in this way", it adds. "The First Amendment guarantees that free speech means that Americans can not be compelled to speak or forbidden to speak".
Early in the oral argument, Justice Breyer cut to the heart of this dynamic at play in NIFLA: "What is sauce for the goose is sauce for the gander", Breyer declared.
Religiously affiliated pregnancy clinics who are opposed to abortion say the law is an unconstitutional violation of their free speech rights and that the government can not compel them to convey a message that goes against their core convictions.
The religiously affiliated centers lost their challenge to the law before a California-based federal appeals court. The most likely outcome is a fairly narrow decision targeting aspects of this particular state law.
"The clinics were masquerading as full service reproductive health clinics and deceiving women into thinking they could get bona fide reproductive health care", said Amy Myrick, a staff attorney at the Center for Reproductive Rights. They exist for a specific reason, which is to assist mothers who want to choose life for their unborn children. In many cases, the facilities must provide these disclaimers in multiple languages, and the law imposes requirements on font choice and when and how the disclosures must be displayed. "Why should the state free-ride on a limited number of clinics to provide that information?" he asked.
A key moment came when Justice Anthony Kennedy, frequently the swing vote on the court, asked how the disclosure requirement would affect a facility affected by the law that took out a two-word advertisement ("CHOOSE LIFE").
And Justice Steven Breyer, on a couple of occasions suggested that the court should send the case back down to the lower courts to develop a more robust record.
Klein told the justices that the law was applied where it would be most useful to pregnant women.
The justices will have to parse the nature of the communication in question.
"They're really the exact flip side of the requirements in this case", said Kagan. Conservative Justice Samuel Alito piled on, pointing to an amicus brief which claims that 98 percent of the clinics covered by this law are "pro life" (though, in fairness, Klein disagreed with this figure).
But Sotomayor, saying she is "fairly sophisticated, said it wasn't clear to her from the website of one unlicensed center, the Fallbrook Pregnancy Resource Center, that it doesn't offer medical services".
Crisis pregnancy centers say they offer legitimate health services but that it is their mission to steer women with unplanned pregnancies away from abortion. He could have framed California's law as nothing more than an "informed consent" law for crisis pregnancy centers, and insisted that the law be upheld under the same standard the Supreme Court applies to abortion providers.
In fact, Harris was all but decided that she'd end her child's life through abortion by the time she went into Greater Baltimore (Md.) Center for Pregnancy Concerns.
And although the liberals on the bench suggested some support for the intent of the law, some of them also expressed concern.
"Well, but if you're trying to educate a class of persons about their rights, it's pretty unusual to force a private speaker to do that for you under the First Amendment", Gorsuch said. "After arguments this morning, I am optimistic the justices will find that the state has not carried this burden and will continue their long tradition of giving speech the highest level of protection it deserves".
The state of California and abortion rights supporters counter that the law in question - the Reproductive FACT Act - is straightforward and doesn't trample anyone's rights.
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