Justices Press California Over Law Challenged by Antiabortion Groups
Supreme Court justices on Tuesday questioned the intent of a California law that the state says aims to inform pregnant women of their rights to reproductive health care, but antiabortion groups say forces them to promote abortion.
The 2015 law requires facilities offering pregnancy-related services—including crisis pregnancy centers that seek to persuade women to carry to term—to post a notice about the state’s free and low-cost family planning programs, which include abortion.
Justice Samuel Alito suggested the law may have been designed to blunt the antiabortion message that such centers seek to deliver. While ostensibly covering hundreds of facilities across the state, the law contains many “crazy exemptions” that all point the same way, he said.
If “it turns out that just about the only clinics that are covered by this are pro-life clinics,” couldn’t the court “infer intentional discrimination?” he said.
California’s lawyer, Joshua Klein, conceded that many facilities that serve pregnant women, including those participating in Medi-Cal, the state’s version of Medicaid, are exempt from the requirement. But that is because they already provide the programs listed in the notice, he said.
Mr. Klein said the law “empowers the woman by explaining that her financial circumstance does not make her unable to access alternative and supplemental care, including full prenatal and delivery care that petitioners [the antiabortion centers] do not themselves supply.”
California says that some women are misled or confused by facilities that seem like medical centers but don’t provide “comprehensive” reproductive health care, or perhaps any medical care at all.
In addition to requiring licensed facilities to post the notice, the law, also requires unlicensed antiabortion centers to post statements disclosing they aren’t medical clinics.
The notice also must be printed in the languages used by Medi-Cal, which vary across the state’s 58 counties—as many as 13 in Los Angeles County, for instance, including Armenian, Cambodian and Farsi.
It was little surprise that conservatives like Justice Alito would challenge California on the law, called the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency, or FACT Act. But from the court’s left, Justice Elena Kagan also pressed the state.
“When you read this statute, Mr. Klein, there’s at least a question” that it may have been “gerrymandered” to target antiabortion facilities, she said, and that would be a “serious problem.”
Justice Kagan’s questions followed remarks from Justice Anthony Kennedy, typically the deciding vote in abortion-related cases, that indicated deep reservations about the California statute.
In response to one of Justice Kennedy’s earlier questions, the challengers’ lawyer, Michael Farris, said an unlicensed center operating under a billboard reading “Choose Life” would be required to post the 29-word notice that it is unlicensed “in the same size font, and in a number of languages, whatever is required by that county.”
If that is true, Justice Kennedy said, “that means that this is an undue burden in that instance and that should suffice to invalidate the statute.”
That term, “undue burden,” is typically used in assessing whether a measure restricting abortion violates a woman’s constitutional right to the procedure, not whether a law that could undermine an antiabortion message infringes the First Amendment.
Justice Kennedy himself helped establish the undue-burden test for abortion restrictions in 1992, with an opinion he co-wrote with now-retired justices Sandra Day O’Connor and David Souter that pared back but didn’t overrule the 1973 opinion recognizing abortion rights, Roe v. Wade.
The 1992 case, Planned Parenthood of Southeast Pennsylvania v. Casey, upheld several state regulations that deterred abortions, including a requirement that women seeking the procedure be informed about medical assistance for childbirth, child-support opportunities and adoption agencies.
Justice Stephen Breyer said the California case presented a mirror image of that rule.
“If a pro-life state can tell a doctor, ‘You have to tell people about adoption,’ why can’t a pro-choice state tell a doctor, a facility, whatever it is, ‘You have to tell people about abortion?’” he said.
Mr. Farris, who is chief executive of the religious advocacy group Alliance Defending Freedom that is representing the plaintiffs, said the state could require providing antiabortion material because it is ensuring that patients give informed consent before receiving the medical procedure of abortion.
The California case arrived at the Supreme Court without a trial record, since the antiabortion centers appealed lower-court rulings that allowed the FACT Act to remain in effect while the litigation proceeds. If there aren’t five votes to uphold those lower-court decisions, the justices could send the case back down with instructions to consider whether part of the FACT Act should be blocked during a full trial.
Source:-https://www.wsj.com/articles/justices-press-california-over-law-challenged-by-antiabortion-groups-1521588227
