The First Amendment Case That Could Upend Abortion Law

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BY: Rachel M. Cohen 11.27.17

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Do anti-choice activists have a constitutional right to trick vulnerable women seeking an abortion into stumbling instead into a facility run for the purpose of talking them out of one?

And if so, does the state have any right to require the facility to provide the women with basic information about their reproductive rights?

That’s the terrain that will soon be explored by the U.S. Supreme Court, which recently announced it will hear its first abortion-rights related case of the Trump-era. The National Institute of Family and Life Advocates, a nonprofit representing anti-choice pregnancy centers, is challenging California’s requirement that all such centers inform patients that the state provides free or affordable access to contraception, prenatal care, and abortion.

The centers — often called “crisis pregnancy centers” in an effort to conflate them with abortion clinics — must also disclose whether they are medically licensed or have medical professionals available. The law, the Reproductive FACT Act, was passed in 2015 after California’s legislature determined that roughly 200 crisis pregnancy centers across the state employed “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.”

The National Institute of Family and Life Advocates argues that California’s law violates its clients’ First Amendment right to free speech by forcing the centers to advertise abortion-related messages against their religious beliefs.

The Arizona-based Alliance Defending Freedom, a conservative Christian legal advocacy group, is behind the suit. The ADF is also bringing Masterpiece Cakeshop v. Colorado Civil Rights Commission, the high-profile case headed to the Supreme Court next month that will determine whether a Christian baker can lawfully refuse to make wedding cakes for same-sex couples.

Like so many cases that wind through the Supreme Court, legal experts suspect the outcome will turn on Anthony Kennedy – a justice known for his strong support of First Amendment claims.

“This is a case that pro-choice advocates should worry a lot about,” Sam Bagenstos, a University of Michigan law professor, told The Intercept. “It is geared right at where Justice Kennedy is.”

Ilyse Hogue, president of NARAL Pro-Choice America, said the case “could set the stage for how courts treat abortion rights for decades to come” and represents the Court’s “first test on abortion rights with Neil Gorsuch on the bench.”

The passage of the Reproductive FACT Act was hailed as a landmark victory for reproductive rights. NARAL Pro-Choice California was the lead organizational sponsor for the bill, following a national report NARAL released showing how crisis pregnancy centers often mislead women seeking reproductive care. Black Women for Wellness and then-Attorney General Kamala Harris also helped push the bill forward, arguing that California has a responsibility to regulate the healthcare industry and ensure that all residents understand what services are available to them. California is one of several states that covers abortion with state Medicaid funds. Noncompliance with the Reproductive FACT Act comes with a penalty of $500 for first-time offenders, and $1,000 per subsequent violation.

Sen. Kamala Harris’s office did not return The Intercept’s request for comment on the lawsuit.