In a 5–4 decision on Tuesday in NIFLA v. Becerra, the U.S. Supreme Court upheld a challenge to a California law that required reproductive health clinics in California, including crisis pregnancy centers, disclose certain information to patients. The question in this case is whether these notice requirements violate the First Amendment.

The law had two requirements:

• Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call.
• Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.

The Court Found

Justice Thomas wrote the majority opinion, arguing that because the notice provides information about abortion services, which the CPCs are opposed to, it “alters the content” of their speech. He also argues that “the notice at issue here is not an informed-consent requirement or any other regulation of professional conduct.”

He tried to explain this notice requirement as being somehow different than the informed consent requirements imposed on abortion providers. In the Casey decision (1992), the Court upheld informed consent laws passed in Pennsylvania, setting the stage for what would become a serious of legislative directives for what abortion providers had to tell patients, whether medically accurate or not. In Louisiana, abortion providers are required to, for example, post signs in waiting rooms and deliver government-scripted information about risks (including risks to the woman's reproductive health) and alternatives to the abortion. and Thomas’s argument was weakened by his one words when he writes

“the people lose when the government is the one deciding which ideas should prevail”

or when he emphatically states

“California cannot co-opt the licensed facilities to deliver its message for it.” Hmmm…

So the Court somehow found California's FACT Act, likely violates the First Amendment, and kicked the case back to the lower courts to be reconsidered.

But There Was Dissent 

Justice Stephen Breyer writing in dissent, warns about the risk the majority opinion poses to all kinds of disclosure regulations:

“the majority’s view, if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk, depending on how broadly its excep­tions are interpreted.”

Breyer goes on to articulate the point above about in greater detail:

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? As the question sug­gests, there is no convincing reason to distinguish between information about adoption and information about abor­tion in this context.”

He stresses the importance of applying the First Amendment First Amendment “evenhandedly” so that

 “a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.”

The decision leaves unanswered the question as to whether a state can craft a regulation on crisis pregnancy centers that requires them to disclose that they are not licensed medical facilities and they do not provide abortions. There are approximately 50 crisis pregnancy centers in Louisiana – there are 3 abortion providers. Because of they are prolific and deceptive in how they advertise, many women facing unplanned pregnancies end up at these fake clinics when trying to find abortion clinics.

These clinics can delay women from seeking not only abortion care, but prenatal care, creating a health risk for women who mistakenly seek services at these facilities.

As funding for reproductive health providers and hospitals is cut year after year, Louisiana granted more than $ 8.5 million to crisis pregnancy centers from federal funds that should be used to provide assistance to needy families. Find more information about CPCs