In the not-so-distant future, a Supreme Court battle between anti-abortion groups and California's disclosure law will take place. The anti-abortion National Institute of Family and Life Advocates will be challenging the state's law known as the Reproductive FACT Act, which is a comprehensive abbreviation for "Freedom, Accountability, Comprehensive Care, and Transparency."
The CEO of Alliance Defending Freedom, Michael Faris, is representing the plaintiffs. In the case, he claims the law infringes on the group's First Amendment rights by apparently forcing Crisis Pregnancy Centers (CPCs) to disclose information about publicly-funded abortion services.
"This is coerced speech. They’re being forced to say something in a way that crowds out their other message. This compelled speech requirement drowns out the centers’ pro-life messages and discourages them from speaking through advertisements, because California’s voluminous required statements make ads cost prohibitive," Faris told USA Today.
The Reproductive FACT Act was passed in 2015 and centered on the state's public health after observing that some medical centers in California would either mislead women or give inadequate information about medical services like abortion. The law stipulates that Californian medical centers have two legal obligations to patients seeking help. Above all, it states that no one should ever interfere with a woman's lawful right to choose. The law's text reads,
Existing law, the Reproductive Privacy Act, provides that every individual possesses a fundamental right of privacy with respect to reproductive decisions. Existing law provides that the state shall not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, as defined, or when necessary to protect her life or health. Existing law specifies the circumstances under which the performance of an abortion is deemed unauthorized.
Firstly, under the law, the medical center must prove that it is a medically licensed practice with licensed medical staff. Secondly, the law states that these centers must educate patients on California's availability of subsidized health care and its eligibility criterion. The law's transparency tenet requires these bits of information to be placed in the waiting rooms of medical centers, in the open view of patients seeking information.
Some worry that this legal challenge to the law could negatively impact reproductive health care for women from poorer backgrounds. That's because the Reproductive FACT Act's primary goal is to let eligible women know about the services they can take advantage of without worrying about financial costs. The law requires "a licensed covered facility" to state "that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women."
California already appears to have a reproductive health care conundrum with a reported 700,000 unintended pregnancies. It certainly doesn't help, then, that CPCs in the state are often replete with misleading information about reproductive care and family planning options like abortion. In May, for instance, a Broadly report claimed that CPCs inundate patients with questionable information. Broadly's Callie Beusman, for instance, wrote that CPCs reportedly mislead women about the nature and intensity of abortions and call them "extremely" painful. They also reportedly warn patients about the psychological repercussions of getting abortion services.
The free speech case for the Supreme Court is set for early 2018. It's difficult to predict the legal fate of the case but Attorney General Xavier Becerra will be defending the disclosure law and has placed emphasis on the need for factual and clear notices about services and licenses. "Information is power," Becerra said in a statement, "and all women should have access to the information they need when making personal healthcare decisions."
