The First Amendment protects free speech and limits the government’s ability to compel speech, but neither the right to speak nor the right to be silent is absolute. On March 20, the Supreme Court heard arguments in National Institute of Family and Life Advocates v. Becerra, a case that may further define the extent of First Amendment safeguards.

The challenged California Reproductive FACT Act was enacted in 2015 and has different requirements that apply to licensed and unlicensed pregnancy-related providers. According to the law, licensed medical clinics operated by nonprofit organizations that do not provide abortion services must post the following notification: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”


Unlicensed pregnancy-related facilities must post a different notice in 48-point font: “This 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.” Unlicensed facilities also must include this message in all advertising, in a font size at least as large as the advertisement copy, and in as many as 13 languages, depending on the local population.

Pro-life, anti-abortion crisis pregnancy centers object to the law because “[f]orcing a pro-life group to advertise for abortion has to be unconstitutional.” California, it is argued, cannot be permitted to enforce this law, which levies fines for noncompliance, against centers whose “sole mission is encouraging expectant mothers to give their children the opportunity for life.”

The crisis pregnancy centers also allege the cost of complying with the law is prohibitive and would deplete funds intended for fulfilling their mission. A federal trial judge in San Diego disagreed and determined the law does not violate the First Amendment. The U.S. Court of Appeals for the Ninth Circuit agreed.

Pro-life, anti-abortion crisis pregnancy centers object to the law because “[f]orcing a pro-life group to advertise for abortion has to be unconstitutional.”

A California state court came to the opposite result with regard to the licensed provider requirements. The U.S. Supreme Court agreed to hear the case, but Justice Stephen G. Breyer questioned whether it was prudent, or even possible, to decide the legal issues without a trial on the facts.

Free speech cases are analyzed using a variety of tests that weigh the government’s need for a challenged law against the burden imposed by the law. Using speculative facts skews that delicate balance. The crisis pregnancy centers insist the facts are sufficiently established to constitute a constitutional violation because under any circumstances the law for licensed facilities compels pro-life providers to promote abortion services and the disclaimer requirement for unlicensed providers dilutes their anti-abortion message. This alone, they argue, is enough to declare the law unconstitutional.

The Supreme Court has developed three tests to determine whether the Free Speech clause has been violated, but the justices do not always agree on when to apply these tests. It is clear, however, that a law favoring one viewpoint over another will be given “strict scrutiny” and will be deemed unconstitutional unless the law serves a compelling government interest and is narrowly tailored to achieve that interest. A classic example of strict scrutiny application is United States v. Playboy Entertainment Group, Inc., which struck down a federal law that blocked adult cable-television programming during certain hours; the court held the government could have achieved its goal of protecting children in a less restrictive manner.

Laws that do not discriminate against specific content or viewpoints are given greater leeway and are judged by an “intermediate scrutiny” standard. The Supreme Court has applied intermediate scrutiny to test regulation of commercial speech, such as truth-in-advertising laws, and restrictions on protests outside abortion clinics. Intermediate scrutiny requires a substantial relationship to an important government interest. The Ninth Circuit applied this standard to the FACT Act, and the federal government argues it is the appropriate standard to use when regulating “professional speech” of licensed medical providers.

The easiest standard to meet is the rational relationship test, which merely requires that a law be rationally related to a legitimate government interest. This test was used by the Fifth and Eighth Circuit courts when they upheld state laws compelling doctors to convey specific abortion-related information. Those courts based their analysis on two Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Gonzales v. Carhart, which acknowledged that “the practice of medicine, [is] subject to reasonable licensing and regulation by the State.”

The California crisis pregnancy centers assert that strict scrutiny should be applied whenever the government compels the content of speech that is not part of a warning prior to carrying out a “medical intervention.” This standard would permit states to require doctors who perform abortions, which are medical interventions, to issue specific warnings to women but would prohibit states to require speech from doctors or nonmedical personnel who counsel women not to have abortions.

During oral argument Justice Breyer objected to this as sauce for the goose, but not the gander. In its amicus brief, the United States Conference of Catholic Bishops proposed a compromise rule that ignores the medical intervention distinction and focuses instead on the characteristics of the speaker. The U.S.C.C.B. argues that strict scrutiny should apply not just to abortion notification cases but whenever the speech of religiously affiliated nonprofits is regulated.

At oral argument, several justices expressed concern that the California FACT Act may have been written specifically to target nonprofit, anti-abortion speakers. The Supreme Court could use this idiosyncrasy to send the case back for more findings of fact or issue a narrow, case-specific ruling. A broader decision that articulates a standard of review applicable to other compelled speech regulation would resolve conflicts among the lower federal courts and help legislatures fashion constitutional regulations.

We should know the outcome of the court’s deliberation by late June.

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