On March 20, 2018, the United States Supreme Court heard arguments in National Institute of Family and Life Advocates (NIFLA) v Becerra. The Court is expected to issue its decision in June and the results could shape legislation around the country. Here is what you need to know.
The background
There are more than 4,000 Crisis Pregnancy Centers (CPCs) around the country, vastly out numbering abortion clinics.1 The services offered and the make-up of the staff who work in CPCs can vary. CPCs can be licensed to provide medical services, including urine pregnancy tests and ultrasounds, and may have clinicians on staff. Alternatively, other CPCs may be volunteer-run and provide counseling as well as supplies for women, including diapers and baby formula. Within CPCs, however, women are often given misleading and medically inaccurate information about abortion and contraception and are not provided with appropriate or timely referrals if they seek abortion care.
To ensure women have access to comprehensive reproductive health services, California passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act in 2015. This act requires licensed clinics — which may include some CPCs — to notify patients that they may access state-funded prenatal care, family planning, and abortion services through a county health department phone number. Additionally, facilities that provide pregnancy testing and ultrasounds are required to notify clients if they do not employ a licensed medical professional.
In response, NIFLA sued the state of California, alleging that the law violated their freedom of speech by forcing them to communicate about abortion with women who visited their centers.
The case
NIFLA argues that California is violating CPCs’ freedom of speech by requiring them to post statements about medications and medical procedures they strongly oppose. According to NIFLA, if California wants to promote state-funded options, they should publicize that information and not require the CPCs to post it.
The State of California enacted the law to ensure that California women have timely access to all available health care services, including contraception and abortion, and are made aware that the clinic they visit does not offer licensed medical care. Women may not know of their publicly funded options and, without this law, CPCs could withhold that information or provide misleading information, delaying or preventing women from accessing care.
Possible outcomes
If the Supreme Court strikes down California’s FACT Act as a violation of the First Amendment, CPCs in that state would not be required to provide information about free or low-cost prenatal care, contraception, and abortion services or post, if appropriate, that they were an unlicensed facility. However, such a ruling could call into question laws in 18 other states that require doctors to give women false information about possible side effects and complications of abortion during the consent process. This case could provide precedent for physicians to assert that such requirements violate their freedom of speech.
If the Supreme Court upholds California’s FACT Act, this would likely lead to similar laws around the country requiring CPCs to disclose the availability of affordable contraception and abortion services in their state and the lack of licensed medical providers.
For more information, check out https://www.supremecourt.gov/
Acknowledgement
Special thanks to Sara Needleman Kline, Esq, Chief Legal Officer, American College of Obstetricians and Gynecologists, for aid with this article.
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