We discussed NIFLA v. Becerra Monday; yesterday, the Supreme Court went it.
The Justices gave the clear impression that they do not like California’s law require oft-deceptive “crisis pregnancy centers” to inform women about the availability of abortion services. NPR’s Nina Totenberg notes that the Supreme Court ruled in 1992 that requiring doctors to tell women about alternatives to abortion is constitutional:
Inside the high court, [CPC lawyer Michael ] 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 [Nina Totenberg, “Justices Skeptical About California Law Being Challenged by Anti-Abortion Clinics,” NPR.org, 2018.03.20].
If the court goes against California, I’m hoping that means they’ll rescind their previous thinking and tell states they can’t boss abortion doctors around, either. CPC lawyer Farris seemed to concede that goose/ganderdom in court yesterday:
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 [Totenberg, 2018.03.20].
Farris did try to cleave medically unlicensed CPCs from medically licensed clinics that provide abortions by saying the state can compel speech by folks who are actually proposing to perform medical procedures:
Farris and Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the federal government, tried to distinguish between the two kinds of disclosures, stressing that requirements to inform pregnant women about alternatives to abortion only come into play when medical procedures are being provided, and that the unlicensed clinics are not providing such procedures.
But Sotomayor was skeptical, telling Wall that the clinics sometimes provide ultrasounds and pregnancy tests. “But I don’t know” what those are, she complained, “if not a procedure.” “I don’t know how” pregnancy counseling, she continued, “is not part of medical advice in the same way a doctor gives it when he’s considering an abortion procedure. I don’t understand the difference” [Amy Howe, “Argument Analysis: Justices Skeptical of Abortion Speech Law,” SCOTUS Blog, 2018.03.20].
Sotomayor noted one CPC website shows a woman in a nurse’s uniform in front of an ultrasound machine, which certainly makes the CPC look like a medical facility. Hmm… if you’re going to play a doctor or a nurse, do you end up facing the same “informed consent” requirements?
Stay tuned for the Supreme Court’s ruling, likely later in June.