I have a question about that abortion decision out of the Ninth Circuit last week.
You can't see me so I'm not here.
I can see you fine. You're . . . are you hiding under your desk?
Just until mid-November.
Come out. You're embarrassing both of us.
I want to stay here. It's safe. I have snacks.
You're an adult and a law firm partner for God's sake.
It doesn't smell great under here to be perfectly honest.
Look, just explain the Ninth Circuit decision to me, will you? I hear that the court forced pro-life clinics to tell people how to get abortions. How is that constitutional?
Well, that's not exactly right.
So what's the case about? Who sued who?
The case is called National Institute of Family and Life Advocates and a whole bunch of others versus Kamela Harris, Attorney General and really awful Senatorial Candidate and other miscreants.
I don't believe that's what it's actually called.
It's close enough. Anyway, the case is about a 2015 California law called "the FACT Act." The law modified California's Health and Safety Code to require "licensed covered facilities" in California to provide patients with information about free family planning, prenatal care, and abortion programs. It required unlicensed clinics to state that they are unlicensed.
What's a "licensed covered facility"?
It's very broadly defined. It's any licensed clinic with a "primary purpose is providing family planning or pregnancy-related services" that does at least two of the following:
(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
(2) The facility provides, or offers counseling about,
contraception or contraceptive methods.
(3) The facility offers pregnancy testing or pregnancy diagnosis.
(4) The facility advertises or solicits patrons with offers to
provide prenatal sonography, pregnancy tests, or pregnancy options
(5) The facility offers abortion services.
(6) The facility has staff or volunteers who collect health
information from clients.
"Unlicensed clinics" includes unlicensed facilities that offer at least two of items (1), (3), (4), and (6) on that list.
So it could be just a pregnancy counseling clinic that advertises pregnancy counseling.
Correct. The California legislature explicitly targeted the law at "crisis pregnancy centers," which the Legislature claims "pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions."
So how did the case get to court?
Three religious nonprofit organizations that operate pregnancy counseling clinics sued the state. They said that the law compelled them to give information that contradicted their beliefs — specifically, a roadmap to how to get an abortion with public funding — in violation of their First Amendment rights. They sought a preliminary injunction against enforcement of the law. The trial court denied their claim, and they appealed to the Ninth Circuit.
What did the Ninth Circuit do?
The Ninth Circuit agreed that they weren't entitled to an injunction because the law didn't violate their First Amendment rights.
But doesn't the law force religious clinics that only offer counseling to engage in compelled speech directing people to abortion services? How did the court get there?
Well, first the court had to decide that the issue was ripe — that the plaintiffs could sue to enjoin the law before California ever tried to enforce it. Federal courts can't just take up any issue and decide it; they're only empowered to decide issues when there is an actual present "case or controversy." Here, the Ninth Circuit found that because plaintiffs said they would not comply with the law, which would subject them to civil penalties under it. That was enough to elevate this above a mere hypothetical dispute.
The rest of the case turned on what level of scrutiny the court selected.
What the hell does that mean?
When a court applies scrutiny, it's holding the government's justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it's defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law.
In the middle you've got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you've got the "rational basis" test, which almost any law can pass.
So by deciding the level of scrutiny you apply, you're usually deciding the case?
How do courts decide what level of scrutiny to apply in free speech challenges?
Courts usually do so categorically — they decide whether the speech falls within certain established categories that trigger strict or lower scrutiny. So, for instance, here the Ninth Circuit found that the law fell into the category of "professional speech,", it triggers only intermediate scrutiny.
To do that, the Ninth Circuit had to decide that the law was viewpoint-neutral. The law is already content-based — that is, it regulates speech based on its content by requiring speakers to say certain things. Content-based speech regulation often — usually — triggers strict scrutiny. But here the court said that while the law is content-based, it's viewpoint-neutral — that is, it does not discriminate based on one particular opinion or view, and applies to all clinics regardless of how they feel about abortion.
But it compels speech that supports abortion by forcing clinics to tell patients how to seek abortion services. Isn't that a viewpoint? And didn't you say that the legislature specifically passed the law to target anti-abortion clinic?
Well, yes. The "viewpoint neutral" argument seems odd here. Under the Ninth Circuit's logic you could compel any statement so long as you compelled it for everyone equally — both people who agreed with it and people who disagreed. I'm not sure that's right. By comparison, the Supreme Court in Wooley v. Maynard struck down a New Hampshire law requiring everyone to have "Live Free or Die" on their license plates, even though the law compelled everyone to do so whether they agreed with the sentiment or not. I think the better argument is that the compelled speech here is informational and about an area — medical services — generally regulated by the government.
That's the "professional speech" category?
Yes. It's not a new idea. Generally courts treat "professional speech" — especially by health care professionals — differently than other speech. The Eleventh Circuit let Florida prohibit its doctors from pestering patients about their guns on the grounds that it was a regulation of professional speech as opposed to expressive speech, and the Ninth Circuit used the theory to uphold another California law limiting so-called "conversion therapy" that purports to turn gay people straight. And way back in 1992, the Supreme Court suggested that "reasonable licensing and regulation" by states could require doctors to provide accurate information about abortion.
The Ninth Circuit concluded that here, as in other "professional speech" cases, intermediate scrutiny was appropriate, and found that the law passed that test because the state has an important government interest in women getting accurate and complete pregnancy information, and that the law was tailored to that end. Put another way, the court said that licensed clinics are not a "soapbox" — that they are vehicles for state-regulated services to patients, not for speech. The court also noted that requiring unlicensed clinics to say they are unlicensed would survive any level of scrutiny.
Crucial to the court's analysis is the fact that the compelled speech about public abortion services only applies to clinics that have sought and obtained state licensing as health clinics. You can run an unlicensed pregnancy counseling center and tell patients whatever you want about pregnancy and abortion; you just have to disclose that you're not licensed by the state.
Will this ruling survive if it goes to the Supreme Court?
Probably, although not certainly. A couple of other circuits have upheld similar laws on similar grounds, and the 1992 Casey decision (convoluted and divided as it is) seems to support the "professional speech" category. But in 2015, the Supreme Court issued a decision in Reed v. Town of Gilbert that could be summarized as "when we say content-based laws trigger strict scrutiny, we mean it." If the Supreme Court holds that line as aggressively as Reed suggests, it's possible they could reject the "professional speech" category.
But I don't think they will. It would (for better or worse) throw most professional regulation into utter chaos. Most regulation of most professionals involves, to some extent, requiring disclosures to clients.
So do you think this case is outrageous?
Outrageous? Well, no, because it only purports to regulate licensed clinics. If it tried to regulate unlicensed organizations that offered counseling, that would be outrageous and obviously unconstitutional. I would say, instead, that the law illustrates the inherent tension between free speech and government regulation of professions. Also, it illustrates how free speech analysis proceeds in a categorical fashion — how deciding what category we put speech in drives the outcome of our analysis, as it does in politics.
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