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Justices Skeptical About California Law Being Challenged By Anti-Abortion Clinics


Supreme Court justices from both sides of the ideological spectrum showed skepticism today as they heard arguments in a case that concerns abortion and free speech. On one side are self-identified crisis pregnancy centers that seek to prevent abortions. On the other side is the state of California, which enacted a law to ensure that the clinics do not mislead their patients. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The California Legislature found that hundreds of crisis pregnancy centers in the state used, quote, "intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed, time-sensitive decisions about critical health care." In response, the state enacted a law that has two provisions. One requires all unlicensed clinics to inform patients in writing that the facility has no licensed medical personnel. That one-sentence disclosure is also required in advertisements.

The second provision requires a licensed clinic to post a sign saying that the state provides free and low-cost access to prenatal and delivery care and other reproductive care, including birth control and abortion. The sign is to list a county social services number for more information. On the steps of the Supreme Court today the law's author, Assemblyman David Chiu, called the measure a public health truth-in-advertising law.


DAVID CHIU: There are thousands of fake health clinics around our country, 370 in the state of California that are unfortunately deceiving women.

TOTENBERG: But Michael Farris, who represents the anti-abortion clinics, said the statute unconstitutionally compels his clients to point women to places where abortion is available.


MICHAEL FARRIS: It's one thing for government to ban speech. That's not acceptable. But it's even worse for the government to put words in your mouth and turn you into their marionette that they can force you to say what they want you to say.

TOTENBERG: Inside the high court, Farris got some pushback from the court's liberal justices. Justices Ginsburg, Sotomayor and Kagan all noted that the court in 1992 upheld provisions of a state law that required doctors to inform women seeking abortions of alternatives, including adoption, and to give these women nonmedical information - for instance, that the state requires the father of a child to pay child support. That's the exact flip side of this case, said Justice Kagan. Or as Justice Stephen Breyer put it, in law, what's sauce for the goose is sauce for the gander.

Justice Samuel Alito, a consistent opponent of abortion rights, asked if it would be constitutional for the state to require that all clinics, pro-life and pro-choice, post a full list of options available to pregnant women. Farris said that, too, would be unconstitutional. A few moments later, Farris said that unlicensed clinics should not be subject to any disclosure provision because they don't provide medical procedures.

Sotomayor disputed that. She pointed to a website for an unlicensed crisis pregnancy clinic, noting that there's a woman on the home page in a nurse's uniform in front of an ultrasound machine and that the text says that the clinic will, quote, "educate women about different abortion methods available." How, asked Sotomayor, would this not be perceived as a medical facility? Farris eventually conceded that some unlicensed anti-abortion centers do provide pregnancy tests and ultrasounds, but maintained that these are not medical procedures.

The tone of the argument changed, however, when Justice Kennedy posed this hypothetical - what would happen if an unlicensed center had a billboard that said, choose life? Would they have to disclose that they're an unlicensed center? Yes, replied Farris, adding that the disclosure sentence would have to be in the same font size as choose life, and that it would also have to appear as well in other languages that are spoken frequently in that county.

For Kennedy, potentially the decisive vote in the case, that seemed to close the book. It's an undue burden, he said, and that should suffice to invalidate the statute. California Deputy Solicitor General Joshua Klein seemed unable to mitigate that concern, and soon liberal justices Sotomayor, Kagan and Ginsburg also expressed misgivings about the potentially onerous nature of the law's advertising provision. Nina Totenberg, NPR News, Washington.


Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.