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National Institute of Family and Life Advocates v. Becerra

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Supreme Court of the United States
National Institute of Family and Life Advocates v. Becerra
Term: 2017
Important Dates
Argument: March 20, 2018
Decided: June 26, 2018
Outcome
Ninth Circuit reversed
Vote
5 - 4
Majority
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Samuel Alito • Neil Gorsuch
Concurring
Chief Justice John G. Roberts • Anthony Kennedy • Samuel Alito • Neil Gorsuch
Dissenting
Ruth Bader Ginsburg • Stephen Breyer • Sonia Sotomayor • Elena Kagan


National Institute of Family and Life Advocates v. Becerra is a case argued during the October 2017 term of the U.S. Supreme Court. Argument in the case was held on March 20, 2018. The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit.

HIGHLIGHTS
  • The case: Medical centers and pregnancy centers that oppose abortion challenged two California regulations that required them to post certain notices about state funding for pregnancy and abortion care and about the pregnancy centers' statuses as unlicensed health centers.[1] They argued that the provisions violated their free speech rights and asked a federal district court to issue a preliminary injunction to prevent enforcement of the act's provisions during litigation. The district court denied their request, concluding that they had not shown a sufficient likelihood that they would succeed on the merits of their claims. The United States Court of Appeals for the 9th Circuit affirmed.
  • The issue: "Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising."[2]
  • The outcome: On a vote of 5 - 4, the U.S. Supreme Court reversed the ruling of the Ninth Circuit.[3]


    • You can review the lower court's opinion here.[4]

    Background

    Legal question

    This was a case about free speech rights in the context of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The plaintiffs challenged two provisions of the act. The first challenged provision requires licensed medical pregnancy clinics to disseminate a notice:

    “ As required under the Act, all licensed covered facilities must disseminate a notice (the Licensed Notice) stating, '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].'...The Act requires that the Licensed Notice be disclosed by licensed facilities in one of three possible manners: '(A) A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. The notice shall be at least 8.5 inches by 11 inches and written in no less than 22-point type. (B) A printed notice distributed to all clients in no less than 14-point type. (C) A digital notice distributed to all clients that can be read at the time of check-in or arrival, in the same point type as other digital disclosures.[4][5] ”

    The second contested provision applied to pregnancy centers that cannot provide medical services. The act required those centers, which it referred to as unlicensed facilities (since they did not have a license to provide medical services), to post notices that they are not licensed to provide medical services:

    “ Unlicensed clinics must disseminate a notice (the Unlicensed Notice) stating, '[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.' The Unlicensed Notice must be 'disseminate[d] to clients on site and in any print and digital advertising materials including Internet Web sites.' Information in advertising material must be 'clear and conspicuous,' and the onsite notice must be 'at least 8.5 inches by 11 inches and written in no less than 48-point type, and . . . posted conspicuously in the entrance of the facility and at least one additional area where clients wait to receive services.[5] ”


    The plaintiffs, advocacy organizations and pregnancy centers opposed to abortion, filed suit against the state, arguing that parts of the act violated their free speech rights. They argued that the act infringes on their goal of discouraging women from seeking abortions and significantly burdens their ability to advertise. The state countered that the act was created to make women aware of the existence of state-sponsored healthcare programs and that non-licensed pregnancy centers "pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions in order to fulfill their goal of interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.”

    To determine whether a state regulation unconstitutionally infringes on a plaintiff's free speech rights, courts apply one of three levels of scrutiny. Depending on the type of speech and type of regulation at issue, the regulation must pass the particular level of scrutiny in order to survive a plaintiff's challenge. The lowest level of scrutiny is called rational basis scrutiny. To survive rational basis scrutiny, a regulation must be rationally related to a legitimate government interest, and there must be a rational connection between the goal the regulation seeks to meet and the means the regulation uses to reach that goal.[6] The next level of scrutiny is intermediate scrutiny. To survive intermediate scrutiny, a regulation must advance an important state interest "by means that are substantially related to that interest."[7] The final and highest level of scrutiny is strict scrutiny. To survive strict scrutiny, the law must advance a compelling state interest and must be narrowly tailored to that interest.[8]

    Case background

    After the plaintiffs filed suit, they asked the district court for a preliminary injunction to prevent enforcement of the act's provisions while their case was pending. The district court denied the injunction:

    “ The district court denied Appellants’ motion for a preliminary injunction. The court found that Appellants were

    unable to show a likelihood of success on their free speech claim. With respect to the Licensed Notice, the court held that the Act either regulated professional conduct subject to rational basis review, or professional speech subject to intermediate scrutiny, and the Act survived both levels of review. The court also held that the Act did not constitute viewpoint discrimination. With respect to the Unlicensed Notice, the court held that it withstood any level of scrutiny. In addition, Appellants could not show a likelihood of success on the merits of their free exercise claim because, the court held, the Act is a neutral law of general applicability which survived rational basis review.[4][5]

    		”

    The plaintiffs appealed the district court's denial to the United States Court of Appeals for the 9th Circuit.

    Panel opinion

    The United States Court of Appeals for the 9th Circuit affirmed the district court's decision. It agreed that the plaintiffs had not shown a sufficient likelihood of success on the merits of their claim to justify a preliminary injunction.

    The Ninth Circuit determined that the first challenged provision, which required licensed providers to post notices about state-funded treatment, was professional speech and was subject to intermediate scrutiny.

    “ The First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it because when professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate...Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not 'constitutionally equivalent to soapbox orators and pamphleteers.' Thus, it would be inappropriate to apply strict scrutiny...Applying intermediate scrutiny is consistent with the principle that 'within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished,' but that professionals also do not 'simply abandon their First Amendment rights when they commence practicing a profession.'[4][9][5] ”


    The court concluded that the first provision survived intermediate scrutiny:

    “ We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services.[4][5] ”


    The court then turned to the second challenged provision, which required unlicensed pregnancy centers to post notices of the fact that the centers were not licensed to provide medical care. The court concluded that that provision could survive any level of scrutiny:

    “ We need not resolve the question, however, of whether the Unlicensed Notice regulates professional speech because it is clear to us that the Unlicensed Notice will survive even strict scrutiny. In order to survive strict scrutiny, a regulation must be 'narrowly tailored to serve a compelling interest.' California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state...We conclude that the Unlicensed Notice is narrowly tailored to this compelling interest. By stating that the clinic in which it is disseminated is not licensed by the State of California, the Unlicensed Notice helps ensure that women...are fully informed that the clinic they are trusting with their well-being is not subject to the traditional regulations that oversee those professionals who are licensed by the state.[4][5] ”

    Based on its conclusion that the regulations at issue were likely to pass constitutional muster, the Ninth Circuit affirmed the district court's denial of the plaintiffs' request for a preliminary injunction.

    Petitioner's challenge

    The petitioners challenged the holding of the United States Court of Appeals for the 9th Circuit. They argued that, contrary to the Ninth Circuit's ruling, the statutes at issue violate their free speech rights.

    Certiorari granted

    On March 20, 2017, the petitioners initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the 9th Circuit. The U.S. Supreme Court granted petitioners' request for certiorari on November 13, 2017. Argument in the case was held on March 20, 2018.[2]

    Question presented

    Question presented:

    "Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising."[2]

    Audio

    • Audio of oral argument:[10]



    Transcript

    • Transcript of oral argument:[11]

    Outcome

    Decision

    On a vote of 5 - 4, the U.S. Supreme Court reversed the ruling of the Ninth Circuit.[3]

    Majority opinion

    Justice Clarence Thomas authored the majority opinion for the court, joined by Chief Justice John G. Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Thomas ruled that the regulation of licensed medical clinics was a content-based law and was therefore subject to strict scrutiny, which the Ninth Circuit had not applied. But, he continued, the regulation could not survive even a lower level of scrutiny. "If California’s goal is to educate low-income women about the services it provides," he wrote, "California could inform low-income women about its services without burdening a speaker with unwanted speech.” As to the regulation on unlicensed centers, Thomas wrote, "California has the burden to prove that the unlicensed notice is neither unjustified nor unduly burdensome. It has not met its burden."[3]

    “ The FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide 'family planning' services and 'contraception or contraceptive methods,' the California Legislature dropped these triggering conditions for the unlicensed notice. The unlicensed notice applies only to facilities that primarily provide 'pregnancy-related' services. §123471(b). Thus, a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription contraceptives is excluded—even though the latter is no less likely to make women think it is licensed. This Court’s precedents are deeply skeptical of laws that 'distinguis[h] among different speakers, allowing speech by some but not others.' Speaker-based laws run the risk that the State has left unburdened those speakers whose messages are in accord with its own views.[3][5] ”


    Thomas concluded, "We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."[3]

    Concurrence by Justice Kennedy

    Justice Kennedy joined the majority's ruling and opinion and wrote separately, joined by Chief Justice Roberts and Justices Alito and Gorsuch. Kennedy wrote, "This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern." Although Kennedy believed that the ruling did not need to reach the question of viewpoint discrimination, he argued that "viewpoint discrimination is inherent in the design and structure of this Act" and called the law at issue "a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression."

    “ For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs . . . Freedom of speech secures freedom of thought and belief. This law imperils those liberties.[3][5] ”


    Dissent by Justice Breyer

    Justice Stephen Breyer dissented from the court's judgment, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Breyer wrote, "In my view both statutory sections are likely constitutional, and I dissent from the Court’s contrary conclusions." Breyer argued that the majority's approach to the law at issue in this case--its conclusion that the regulations were content-based--"threatens to create serious problems." Breyer wrote "Virtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals to speak a particular message," including laws requiring doctors to disclose disease risks to parents and laws requiring landowners to disclose information to tenants.

    “ The Court, in justification, refers to widely accepted First Amendment goals, such as the need to protect the Nation from laws that suppress unpopular ideas or information or inhibit the marketplace of ideas in which truth will ultimately prevail. The concurrence highlights similar First Amendment interests. I, too, value this role that the First Amendment plays—in an appropriate case. But here, the majority enunciates a general test that reaches far beyond the area where this Court has examined laws closely in the service of those goals. And, in suggesting that heightened scrutiny applies to much economic and social legislation, the majority pays those First Amendment goals a serious disservice through dilution. Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech.[3][12][5] ”


    Breyer rejected the majority's suspicions that the law targeted clinics and organizations opposed to abortion rights, writing "The Act does not, on its face, distinguish between facilities that favor pro-life and those that favor pro-choice points of view." Moreover, he continued, California imposed the same type of disclosure requirement on clinics that did not provide pregnancy-related care. He concluded, "For these reasons I would not hold the California statute unconstitutional on its face, I would not require the District Court to issue a preliminary injunction forbidding its enforcement, and I respectfully dissent from the majority’s contrary conclusions."[3]

    Text of the opinion

    See also

    Footnotes

    1. ↑ The plaintiffs include the National Institute of Family and Life Advocates, Pregnancy Care Center, and Fallbrook Pregnancy Resource Center.
    2. ↑ 2.0 2.1 2.2 Supreme Court of the United States, "National Institute of Family and Life Advocates v. Becerra" Question Presented, November 13, 2017
    3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 United States Supreme Court, "National Institute of Family and life Advocates v. Becerra opinion," June 26, 2018
    4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 United States Court of Appeals for the 9th Circuit, "National Institute of Family and Life Advocates v." Opinion, October 14, 2016
    5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ Legal Information Institute, "Rational Basis," accessed February 6, 2018
    7. ↑ Legal Information Institute, "Intermediate Scrutiny," accessed February 6, 2018
    8. ↑ Legal Information Institute, "Strict Scrutiny," accessed February 6, 2018
    9. ↑ Internal citations and quotations omitted.
    10. ↑ Supreme Court of the United States, National Institute of Family and Life Advocates v. Becerra, argued March 20, 2018
    11. ↑ Supreme Court of the United States, National Institute of Family and Life Advocates v. Becerra, argued March 20, 2018
    12. ↑ Internal citations omitted.
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