Facing the FACT Act: Abortion and Free Speech (Part II)

Facing the FACT Act: Abortion and Free Speech (Part II)

Legal Sidebari

Facing the FACT Act: Abortion and Free
Speech (Part II)
Updated July 26, 2019
Update: For a discussion of the Supreme Court’s June 26, 2018 decision in NIFLA v. Becerra holding
that the FACT Act likely violated the First Amendment, see CRS Report R45316, Supreme Court October
Term 2017: A Review of Selected Major Rulings, coordinated by Andrew Nolan. On October 26, 2018,
the parties in NIFLA stipulated to an injunction and dismissal of the case, and the district court
permanently enjoined the state and local defendants from enforcing the FACT Act. No. 3:15-cv-02277
(S.D. Cal. Oct. 26, 2018), ECF No. 76.
The original post from January 10, 2018 is below.
As explained in Part I of this Sidebar, the parties in National Institute of Family and Life Advocates
(NIFLA) v. Becerra dispute whether California’s Reproductive FACT Act is a viewpoint- or content-based
restriction on speech subject to strict scrutiny (and thus presumptively invalid) or a professional or
commercial regulation subject to less exacting scrutiny. The path the Court chooses could have
implications for lawmakers both in the context of family planning or pregnancy-related services and,
more broadly, in the regulation of professional and commercial activities.
Informed Consent v. Other Informational Disclosures. As noted in Part I, in Planned Parenthood v.
Casey, the Supreme Court rejected a First Amendment challenge to Pennsylvania’s requirement that,
before performing an abortion, a doctor inform the patient of, among other things, state publications
describing alternatives to abortion. The parties that oppose the FACT Act (i.e., the NIFLA challengers)
argue that Pennsylvania’s law is fundamentally different than the FACT Act because Pennsylvania’s
requirement “served a particularized interest in ensuring that ‘relevant’ information is provided to the
patient so that a necessary step—informed consent for a surgical procedure—is actually obtained.” But
California argues that its notices are likewise “relevant” to a pregnant woman’s decisionmaking and not
so different in kind from the notice requirement at issue in Casey.
Whether the Court can distinguish Casey from the issues raised in NIFLA could have broad consequences
for abortion regulations. Some legal commentators have posited that if the Court rules in favor of the
NIFLA challengers, the decision could render notice and disclosure requirements championed by abortion
opponents susceptible to invalidation as well. Some of those laws, however, may be distinguishable based
on the type of information they convey. For example, it is unclear whether the Court would view a law
that requires the disclosure of medical risks before undergoing a procedure on the same plane as a law
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that requires the dissemination of informational material more generally. Likewise, how the information is
expressed may be dispositive. For example, the Ninth Circuit in NIFLA distinguished the FACT Act’s
notice about the existence of public programs from statements invalidated in the Second and Fourth
Circuits that expressly “encourage[d]” pregnant women to consult with a licensed provider, reasoning that
the FACT Act does not suggest California’s “preferences regarding prenatal care.”
In the realm of informed consent laws, it appears that at least twenty-seven states require abortion
providers to offer or provide to patients state-published materials on alternatives to abortion or medical
assistance benefits for childbirth. These provisions differ in substance, however, with many of them
requiring abortion providers to describe the state’s materials at a high level, a few that expressly allow the
providers to distance themselves from the state’s materials or comment on them, and at least one that
requires abortion providers with websites to post a “prominent link” to the state’s abortion alternatives
website on their homepages. The state publications themselves also differ, with some listing potential
resources without endorsement, and others expressing or suggesting the state’s preference for childbirth
over abortion. In deciding NIFLA against the backdrop of these informed consent requirements, the
Supreme Court may need to consider whether the First Amendment permits judicial line-drawing based
on the speaker (e.g., abortion provider versus pregnancy center), the context in which the information is
provided (e.g., abortion procedure versus other medical procedure versus non-medical service), or what
those resources say (e.g., availability of abortion versus availability of alternatives to abortion).
Scrutiny for Content-Based Restrictions. As discussed in Part I, in 2015, the Supreme Court ruled in
Reed v. Town of Gilbert that a content-based restriction on speech, such as a law that regulates speech
based on its subject matter, must withstand strict scrutiny regardless of any neutral justification for the
law. In a separate opinion, Justice Kagan, on behalf of herself and Justices Ginsburg and Breyer, noted
that in prior cases, the Court had considered not only the wording of the challenged law, but also whether
it has “the intent or effect of favoring some ideas over others.” These Justices expressed concern that
applying strict scrutiny to all ostensibly content-based laws would invalidate some “entirely reasonable”
ones. The majority in Reed rejected this argument, favoring a clear rule that leaves room for content-
neutral distinctions and sufficiently tailored content-based ones.
In the wake of Reed, some lower courts have distinguished the 2015 case, noting that regulations of
certain categories of speech, such as commercial speech, should not be subject to strict scrutiny even
when the law is content-based. The Ninth Circuit appears to have taken this approach in NIFLA when,
while acknowledging that the FACT Act was a “content-based” law, it nevertheless declined to apply
strict scrutiny to the notice requirement for licensed pregnancy centers because “within the confines of a
professional relationship, First Amendment protection of a professional’s speech is somewhat
diminished.” Accordingly, NIFLA may present the Supreme Court with an opportunity to weigh in on the
scope of Reed.
Implications for Professional Speech Regulations. If the Supreme Court agrees with the Ninth Circuit
that the FACT Act regulates at least some aspect of professional speech, the test it applies could have
ramifications beyond the realm of family planning and pregnancy-related services. That is, the decision
could influence how the courts apply First Amendment principles to future cases involving medical
provider-patient relationships or even other professional engagements such as attorney-client and
financial advisor-client relationships.
A case that has worked its way through the Eleventh Circuit illustrates the uncertain state of the law at the
juncture of professional regulations and speech that the NIFLA Court could potentially clarify.
Wollschlaeger v. Governor of Florida concerned the constitutionality of a Florida law that, among other
provisions, prohibited doctors from asking their patients about firearm ownership, except when relevant
to the patient’s medical care or safety or the safety of others. A group of physicians and medical
associations brought suit to challenge the law on First Amendment grounds. In a December 2015 decision
upholding the law, a divided panel of the Eleventh Circuit noted that the “Supreme Court has never

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precisely addressed the proper level of scrutiny for professional speech.” The panel declined to decide
whether the inquiry provision warranted a less stringent standard of review than strict scrutiny because it
found that the law survives even that test given what the panel viewed as the important interests at stake
(i.e., Second Amendment rights) and the narrow scope of the regulation (i.e., barring only medically
irrelevant inquiries). The full Circuit, however, vacated the panel’s decision. Although the en banc court
rejected the “rational basis standard” (the least stringent test) that some courts have applied to
professional regulations based on the Casey plurality opinion, as with the panel decision, the court
declined to resolve what level of scrutiny to apply in the case. Instead, the court held that the inquiry
provision failed both strict scrutiny and a less exacting standard, thus leaving the question of the
appropriate test for professional speech regulations largely unsettled in that circuit.
Implications for Commercial Speech Law. As noted in Part I, NIFLA could also implicate whether
commercial speech cases like Zauderer v. Office of Disciplinary Counsel—which upheld a rule requiring
the disclosure of “purely factual and uncontroversial” information that was “reasonably related” to
preventing consumer deception in the context of attorney services—should be extended to the regulation
of nonprofit groups like the NIFLA challengers, or cabined to its facts. The Fourth Circuit has noted that
whether an entity is engaging in commercial speech is often a close and fact-laden question, and in 2013,
it remanded a case to the district court for discovery on whether a pregnancy center engaged in
commercial speech. The court reasoned that “the potential commercial nature of speech does not hinge
solely on whether [a pregnancy center] has an economic motive” because the court also must take into
consideration the viewpoint of the consumer.
Concluding that the FACT Act regulates commercial speech would not end the Court’s inquiry, however.
To apply Zauderer’s lower standard of review, the Court would first need to find that the notice
requirements concern “purely factual and uncontroversial” information. For example, the Second Circuit
has held that a requirement that pregnancy centers disclose whether or not they provide or refer for
abortion services, did not concern “uncontroversial” information because it “requires centers to mention
controversial services that some pregnancy services centers . . . oppose.” Assuming one or both of the
notice requirements in the FACT Act could be deemed purely factual and uncontroversial, the Court
would then need to examine whether the disclosures are reasonably related to California’s asserted
interest in preventing consumer deception. In upholding California’s requirement for unlicensed
pregnancy centers, the Ninth Circuit referenced the legislature’s findings regarding the deceptive
practices of some pregnancy centers. Because the court applied strict scrutiny to this requirement (as the
Second and Fourth Circuits had done in upholding similar requirements), it presumably would have
upheld the law under a rational basis standard as well. The Supreme Court has not yet opined on whether
Zauderer’s rationale applies in compelled disclosure cases involving state interests other than preventing
consumer deception (e.g., California’s interest in “ensuring that its citizens have access to and adequate
information about constitutionally-protected medical services like abortion”).
* * *
With such uncertainty over the various First Amendment issues raised by NIFLA, some amici have urged
the Supreme Court to opine on the broader questions the cases raises. It remains to be seen whether the
Court will take up these issues at oral argument, which has not yet been scheduled, or in the Court’s
ultimate decision, which is expected to be issued in June 2018.

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Author Information

Victoria L. Killion

Legislative Attorney

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