Today, the Supreme Court decided NIFLA v. Becerra, which involves whether a California law requiring so-called “pregnancy crisis centers” (pro-life medical facilities that provide a variety of services for pregnant women) to disclose abortion-related information violates the First Amendment. (We previewed the case here.) In a 5-4 decision, and in an opinion written by Justice Thomas, the Court ruled against the state of California and struck down the law as an unconstitutional restriction of free speech.
The Court said that California’s law was content-based because it required private organizations to provide state-sponsored messages that the pro-life groups disagree with. But the Court was careful to say that states could still regulate the practice of medicine (for example, by having informed-consent laws) and could still regulate commercial activity that imposes “incidental” burdens on speech. “We do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products,” wrote Justice Thomas. Here, however, California was regulating more than simply the practice of medicine, and the law was not an “incidental” burden on speech. The Court struck down the law’s regulation of both licensed and unlicensed centers.
In a two-page concurring opinion, Justice Kennedy (joined by three others) expressed concern that California’s law was a form of viewpoint discrimination. California had said that its law was part of the state’s legacy of being “forward thinking.” Justice Kennedy did not take to kindly to that. “It is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.”
Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented; they would have upheld the law.
Case: Nat’l Inst. of Family & Life Advocates v. Becerra, No. 16-1140 (U.S. June 26, 2018) (opinion here)
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