By Rachel N. Busick, J.D.
This article originally appeared in Sabastian’s Point on July 12, 2018.
The First Amendment provides broad free speech protections to healthcare professionals, including the right of professionals to decide “what not to say.”[i] These protections, however, are not unlimited. When a physician’s First Amendment right not to speak is implicated as part of the practice of medicine, it is “subject to reasonable licensing and regulation by the State.” [ii] For instance, as the U.S. Supreme Court explained in Planned Parenthood v. Casey, a State may regulate speech in the context of medical informed consent.[iii] But outside of certain narrow exceptions, healthcare professionals have the same free speech rights as everyone else.
The Supreme Court recently affirmed the free speech rights of pro-life pregnancy centers in National Institute of Family and Life Advocates v. Becerra (NIFLA).[iv]
This case concerned a First Amendment free speech challenge to a California law[v] that targeted pro-life (and only pro-life) pregnancy centers. The law has two main provisions. The first requires unlicensed pregnancy centers—which do not offer any medical services—to include in all their public advertisements a 29-word disclaimer in large font and in up to 13 languages that the center maintains no licensed medical provider on staff. The second provision requires licensed pregnancy centers—which do offer medical services—to provide notice that California offers free or low-cost abortions and contraception, along with a telephone number to call for more information.
The 5-4 majority opinion, written by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch, found that both provisions likely violate the First Amendment.
First, regarding the requirement for unlicensed centers, the Court found that it “unduly burdens protected speech.”[vi] The justification California provided for the disclaimer—that it was necessary to ensure that pregnant women know when they are receiving medical care from licensed professionals—was “purely hypothetical.”[vii] Further, the required disclaimer targeted speakers, not speech, since the regulation only covered a “curiously narrow subset of speakers.”[viii]
Regarding the second requirement for licensed pregnancy centers, the Court held that the notice is a content-based regulation on speech, which is “presumptively unconstitutional” and can be justified only if the law is narrowly tailored to serve a compelling state interest.[ix]
The Court rejected the argument that the notice should be subject to lesser protection because it regulates speech by professionals. The Court has never recognized “professional speech” as a category of speech that is per se subject to lesser protection.
The Court has only given lesser protection to professional speech in two instances: first, when the law requires professionals to disclose factual, noncontroversial information in their “commercial speech,” and second when the law regulates professional conduct that incidentally burdens speech, such as through informed consent laws. Neither instance applies here.
The notice is not commercial speech because it “in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services—including abortion, anything but an ‘uncontroversial’ topic.”[x]
Nor does the notice fall under the regulation of professional conduct that incidentally burdens speech. “The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure.”[xi]
The dissenting Justices disagreed on this point: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”[xii] As Justice Breyer writes, there “is no convincing reason to distinguish between information about adoption and information about abortion in this context,” because “[a]fter all, the rule of law embodies evenhandedness, and ‘what is sauce for the goose is normally sauce for the gander.’”[xiii]
The dissent misunderstands the nature of informed consent in the medical context. As Americans United for Life, where I serve as Staff Counsel, pointed out to the Justices in our “friend of the court” brief,[xiv] informed consent requires that the doctor inform the patient about the benefits, risks, consequences, and alternatives to the specific proposed medical procedure.
This is why a state can require abortion doctors to disclose alternatives to abortion, such as adoption and support services available to pregnant women and new mothers. As the Court acknowledged in NIFLA, the Court in Casey rejected a First Amendment free speech challenge to an informed consent law that required physicians to “give a woman certain information as part of obtaining her consent to an abortion.”[xv]
Unlike the notice requirement in Casey, the notice required by California is not any part of informed consent for a proposed medical procedure.
In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures.[xvi]
The fact that California offers free and low-cost abortions and contraception is not a benefit, risk, consequence, or alternative to the limited medical services offered by licensed pregnancy centers: pregnancy tests, limited ultrasounds, and testing for sexually transmitted infections.
In addition to limited medical services, the more than 2,500 pregnancy centers across America provide vital care and encouragement for expectant women who choose parenting or adoption for their unborn children. They offer free support, counseling, and physical resources, such as baby clothing and diapers, that allow mothers to better care for both themselves and their children. And thanks to the Supreme Court, pro-life pregnancy centers are free to continue doing just that.
NIFLA is a win for free speech. It is a win for the thousands of women facing difficult pregnancy decisions who go to pregnancy centers seeking the life-affirming care, support, and services they offer. And, perhaps most importantly, this case is a win for life.
[i] Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995).
[ii] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (plurality opinion).
[iii] See id.
[iv] 585 U.S. ___ (2018), https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf.
[v] Cal. Health & Safety Code Ann. § 123470 et seq. (2018).
[vi] NIFLA, 585 at ___ (slip op., at 18).
[vii] Id. at ___ (slip op., at 17).
[viii] Id. at ___ (slip op., at 18).
[ix] Id. at ___ (slip op., at 6).
[x] Id. at ___ (slip op., at 9).
[xi] Id. at ___ (slip op., at 11).
[xii] Id. at ___ (Breyer, J., dissenting) (slip op., at 11–12).
[xiii] Id. at ___(Breyer, J., dissenting) (slip op., at 12) (quoting Heffernan v. City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6)).
[xiv] Brief found here: http://www.aul.org/wp-content/uploads/2018/02/AUL-Amicus-Brief-FINAL.pdf.
[xv] NIFLA, 585 at ___ (slip op., at 11) (quoting Casey, 505 U.S. at 884).