US Supreme Court has recently declared that state cannot make it mandatory for medical clinics to disclose information on abortion facilities or the fact whether they are licensed or not. In National Institute of Family and Life Advocates v. Becerra, the apex court has opined that such regulatory declarations violate the First Amendment of the medical clinics which protects their freedom of speech. This judgment not only restrictively interprets the First Amendment jurisprudence, but also opens floodgates of possible multiple litigations challenging any state regulation requiring compliance.
The case was an appeal seeking an injunction on The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) which sought to regulate crisis pregnancy centers — ‘pro-life centers’ that offer pregnancy-related services. It mandated two requirements:
a. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call.
b. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services
The court ruled the FACT ACT to be violative of the First Amendment as it created a ‘content-based’ regulation, which restricted the content of the commercial speech accrued to the medical clinics. Content- based regulations compel a person to add substance to her speech which she may not be willing to add or which is contrary to her beliefs. Since the disclosure regulation required certain ‘speech’ to be made by the clinics, the court ruled it to be an unduly burdensome and unnecessary as it tends to control the harm which is purely ‘hypothetical’ and not potentially real. It also refused to consider the Zauderer test which protects regulation on professional speech from being declared unconstitutional if the subject matter is uncontroversial or is a purely factual information by calling abortion, ‘anything but uncontroversial’.
The ruling is disturbing as its restrictive understanding of the First Amendment underplays the significance of disclosures, especially in the profession of medicine. In Planned Parenthood of Southeastern Pa. v. Casey, the Supreme Court held that statutory disclosure requirements in medicine does not violate First Amendment as they amount to ‘reasonable’ measures to help patient make an informed choice. In the present case, the court did recognise health disclosures to be an exception to the rule of content-based regulation but refused to recognise abortion related information to qualify as one. While doing so, no reasoning is provided for such exclusion and no general test has been laid down for recognising an information as ‘health-related’. This enables any government regulation to be challenged on the ground of First Amendment and leaves the adjudication on the subjective choice of the judges, who will not base their decisions on reasoned principle. What also goes unrecognised, is the fact that such disclosures, instead of curbing, enables the exercise of free speech as it prevents information asymmetry and promotes informed choice.
In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, the apex court had held that disclosure requirement on commercial speech does not violate First Amendment if the subject matter of disclosure is a factual information or is uncontroversial. It differentiated disclosures from outright prohibition on speech by saying that in the former, the service provider is not prohibited to say whatever she desires; she just have to add the disclosures to her speech. In the present case, the court refused to apply Zauderer by calling abortion a ‘controversial’ topic. The court gets its reasoning wrong on two grounds:
a. Abortion is not just a religious or moral issue but it directly affects the health of the pregnant woman. Moreover, a person’s control over her body and its reproduction as a right also makes abortion a legal issue. Court simply can’t deny information on abortion services because some pro-life centres consider it to be against their religious beliefs. This would lead to a large number of women risking their lives by unknowingly/unwillingly continuing with their pregnancy.
b. Even if abortion is a controversial issue, existence of state assistance for abortion services is a fact and not a debatable truth. A clinic might not provide an abortion service for religious purposes but disclosing to the patient about existence of state sponsored programmes is a disclosure of a mere factual information which the state can enforce as a requirement. By doing so, the state is merely informing the women about existence of certain assistance programmes and is not promoting one viewpoint over the other
Another ground upon which the court has based its judgment is ‘viewpoint discrimination’. The FACT Act does not extend cover to state-run medical programs that provide abortions. The court held that it is discriminatory towards private ‘pro-life’ centres as it puts an undue burden on them and it discriminates against their viewpoint. In this reasoning, the court did not pay attention to the possibility that these pro- life clinics are more likely to not to inform their patients about abortion services as compared to the state- run centres; hence, the statutory requirement becomes imperative.
This judgment is problematic as it takes a restrictive understanding of the First Amendment and it fails to appreciate properly the earlier cases of the same court on disclosure requirements being not a burden on commercial speech. What is even more problematic, is its regressive understanding of abortion as it fails to see it as imperative to women’s reproductive health and rights. A woman must have a right to know about abortion services even if her clinic doesn’t support abortion due to religious or moral reasons. However, this judgment not only undermines that right but also puts any future regulatory requirement or law on abortion on a very vulnerable position.
The opinions expressed in this essay are those of the authors. They do not purport to reflect the opinions or views of CCS.