Nat'l Inst. Advocates & Life Advocates v. Becerra
| Decision Date | 26 June 2018 |
| Docket Number | No. 16–1140.,16–1140. |
| Citation | 201 L.Ed.2d 835,138 S.Ct. 2361 |
| Parties | NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, dba NIFLA, et al., Petitioners v. Xavier BECERRA, Attorney General of California, et al. |
| Court | U.S. Supreme Court |
Michael P. Farris, Washington, DC, for Petitioners.
Jeffrey B. Wall for the United States as amicus curiae, by special leave of the Court, supporting neither party.
Joshua A. Klein, San Francisco, CA, for Respondents.
John C. Eastman, Center for Constitutional Jurisprudence c/o Chapman University, Fowler School of Law, Orange, CA, Anne O'Connor, National Institute of Family and Life Advocates, Fredericksburg, VA, Michael P. Farris, Kristen K. Waggoner, David A. Cortman, Kevin H. Theriot, James A. Campbell, Denise M. Harle, Elissa M. Graves, Alliance Defending Freedom, Washington, DC, Dean R. Broyles, The National Center for Law and Policy, Escondido, CA, for Petitioners.
Thomas E. Montgomery, County Counsel, County of San Diego, Thomas D. Bunton, Chief Deputy, Darin L. Wessel, Senior Deputy, San Diego, CA, for Respondent.
Thomas E. Montgomery in his official capacity as County Counsel for the County of San Diego.
Xavier Becerra, Attorney General of California, Edward C. DuMont, Solicitor General, Janill L. Richards, Principal Deputy Solicitor General, Joshua A. Klein, Counsel of Record, Deputy Solicitor General, Kathleen Vermazen Radez, Anthony R. Hakl, Jonathan M. Eisenberg, Deputy Attorneys General, State of California, Department of Justice, San Francisco, CA, for State Respondents.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. § 123470 et seq. (West 2018). 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 question in this case is whether these notice requirements violate the First Amendment.
The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers—according to a report commissioned by the California State Assembly, App. 86—are "pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center." Watters et al., Pregnancy Resource Centers: Ensuring Access and Accuracy of Information 4 (2011). "[U]nfortunately," the author of the FACT Act stated, "there are nearly 200 licensed and unlicensed" crisis pregnancy centers in California. App. 84. These centers "aim to discourage and prevent women from seeking abortions." Id., at 85. The author of the FACT Act observed that crisis pregnancy centers "are commonly affiliated with, or run by organizations whose stated goal" is to oppose abortion—including "the National Institute of Family and Life Advocates," one of the petitioners here. Ibid. To address this perceived problem, the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services—one for licensed facilities and one for unlicensed facilities.
The first notice requirement applies to "licensed covered facilit[ies]." Cal. Health & Safety Code Ann. § 123471(a). To fall under the definition of "licensed covered facility," a clinic must be a licensed primary care or specialty clinic or qualify as an intermittent clinic under California law. Ibid. (citing §§ 1204, 1206(h) ). A licensed covered facility also must have the "primary purpose" of "providing family planning or pregnancy-related services." § 123471(a). And it must satisfy at least two of the following six requirements:
The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are "enrolled as a Medi–Cal provider" and participate in "the Family Planning, Access, Care, and Treatment Program" (Family PACT program). § 123471(c). To participate in the Family PACT program, a clinic must provide "the full scope of family planning ... services specified for the program," Cal. Welf. & Inst. Code Ann. § 24005(c) (West 2018), including sterilization and emergency contraceptive pills, §§ 24007(a)(1), (2).
If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site. Cal. Health & Safety Code Ann. § 123472(a)(1). The notice states that Ibid. This notice must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in. § 123472(a)(2). The notice must be in English and any additional languages identified by state law. § 123472(a). In some counties, that means the notice must be spelled out in 13 different languages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi–Cal Population by County for Jan. 2015, pp. 4–5 (Sept. 2016) ().
The stated purpose of the FACT Act, including its licensed notice requirement, is to "ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them." 2015 Cal. Legis. Serv. Ch. 700, § 2 (A.B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that "thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery." § 1(b). Citing the "time sensitive" nature of pregnancy-related decisions, § 1(c), the Legislature concluded that requiring licensed facilities to inform patients themselves would be "[t]he most effective" way to convey this information, § 1(d).
The second notice requirement in the FACT Act applies to "unlicensed covered facilit[ies]." § 123471(b). To fall under the definition of "unlicensed covered facility," a facility must not be licensed by the State, not have a licensed medical provider on staff or under contract, and have the "primary purpose" of "providing pregnancy-related services." Ibid. An unlicensed covered facility also must satisfy at least two of the following four requirements:
Clinics operated by the United States and licensed primary care clinics enrolled in Medi–Cal and Family PACT are excluded. § 123471(c).
Unlicensed covered facilities must provide a government-drafted notice stating that "[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." Cal. Health & Safety Code Ann. § 123472(b)(1). This notice must be provided on site and in all advertising materials. §§ 123472(b)(2), (3). Onsite, the notice must be posted "conspicuously" at the entrance of the facility and in at least one waiting area. § 123472(b)(2). It must be "at least 8.5 inches by 11 inches and written in no less than 48–point type." Ibid. In advertisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it. § 123472(b)(3). Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law. § 123471(b). Its stated purpose is to ensure "that pregnant women in California know when they are getting medical care from licensed professionals." Cal. Legis. Serv., § 1(e).
After the Governor of California signed the FACT Act, petitioners—a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers—filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction.
The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life Advocates v. Harris, 839 F.3d 823, 845 (2016). After concluding that petitioners' challenge to the FACT Act was ripe,1 id., at 833, the Ninth Circuit held that petitioners could not show a likelihood of success on the merits. It concluded that the licensed notice survives the "lower level of scrutiny" that applies to...
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