//  7/9/18  //  Commentary

This post is the third in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.

Dear Catherine, Charlotte, and Niko,

I am delighted to be part of this discussion. 

I am going to start with optimism, trying to pick up on Charlotte’s question about silver linings, but then ultimately end with pessimism, concluding that the answer to Niko’s last question is that “the Supreme Court’s invocation of the deregulatory First Amendment depends on the political implications of the cases before it[.]”

Sometimes the oncoming storm is easier to spot than the silver linings. The Supreme Court’s willingness to find that the act of contributing to a union that bargains on your behalf amounts to compelled speech (the holding in Janus v. AFSCME) does not bode well for resisting the claim that the act of baking and selling a cake amounts to compelled speech (the unresolved question in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission).

But perhaps there is a silver lining to NIFLA v. Becerra, the case that struck down California’s FACT Act. As Charlotte explained, this law was passed in response to reports of widespread deception on the part of crisis pregnancy centers (CPCs). It mandated two disclosures. First, facilities without a license or licensed medical professional were required to disclose that fact. Second, licensed facilities were required to notify their clients of the fact that California provides subsidized reproductive health care including contraception and abortion services.

In NIFLA, the Supreme Court held that the FACT Act was a content-based regulation of speech and was therefore subject to strict scrutiny. The Court further concluded that neither of the mandated disclosures satisfied this stringent level of scrutiny, which requires that the government prove its law is narrowly tailored to accomplish a compelling interest. In finding that the disclosures violated the free speech clause, NIFLA emphasized the dangers of content-based regulations, noting that “throughout history, governments have manipulated the content of doctor-patient discourse…”  Justice Kennedy’s concurrence chastised, “[I]t is not forward thinking to force individuals to be an instrument for fostering adherence to an ideological point of view they find unacceptable.”

NIFLA’s palpable hostility to content-based disclosures should carry over to other content-based disclosures. That is, NIFLA’s silver lining should be the invalidation of many mandatory abortion counseling laws. These are disclosure laws that require abortion providers to offer information that goes beyond standard informed consent. Standard informed consent, which covers the proposed medical procedure, its physical risks and benefits, and the risks and benefits of the alternatives, is required by medical ethics. Mandatory abortion counseling is not. In fact, some mandatory abortion counseling conflicts with physicians’ ethical obligations. These disclosure laws might force doctors to tell women about various child support laws and adoption services or to describe a batter of (often) spurious psychological harms of abortion. Some mandatory abortion counseling laws even compel doctors to read state-scripted messages—e.g., “The abortion will terminate the life of a whole, separate, unique, living human being.”

As Justice Breyer points out in his NIFLA dissent, “what is sauce for the goose is normally sauce for the gander.” Although Justice Breyer was arguing that both types of reproductive disclosures were constitutional, the reverse is true as well. If it violates the Free Speech Clause to force providers to tell a pregnant woman that the state subsidizes abortion services, then it should violate the Free Speech Clause to force them to tell a pregnant woman that the state offers adoption services.

Indeed, the Court’s avowed concern about government imposing its ideological viewpoint is far more clearly implicated by mandatory abortion counseling laws. At least California’s FACT Act disclosures consisted of accurate and uncontested facts. Nobody disputes whether a clinic is licensed or whether California provides reproductive health care. In contrast, mandatory abortion counseling disclosures are often more about articulating the government’s (contested) pro-life viewpoint than providing helpful factual information. The Court all but admitted as much in Planned Parenthood of Southeastern Pennsylvania v. Casey, where it held that states are free to require doctors to provide information that “expresses a preference for childbirth over abortion.”

Anticipating post-NIFLA challenges to abortion disclosures, the Court has already started to distinguish them—thus validating Charlotte’s suspicion that “the emerging First Amendment principles seem to be that the First Amendment protects anti-abortion speakers more than pro-choice ones.” The NIFLA Court seems to adopt bright-line rule: state-mandated disclosures are content-based regulations triggering the highest level of free speech scrutiny. But then the Court brazenly refuses to apply that rule to mandatory abortion counseling disclosures. Instead, the Court characterizes such disclosures as regulations of conduct—“the practice of medicine, subject to reasonable licensing and regulation by the state”—that only incidentally involves speech. Yet surely that characterization would apply equally to a California’s disclosure about licensing itself?  

To sum up: compelled disclosures are content-based regulations subject to strict scrutiny except when they are not. A law mandating disclosures about the availability of abortion to women who have taken a pregnancy test is a content-based regulation subject to strict scrutiny. A law requiring disclosures about the availability of adoption to women who have already scheduled an abortion is merely a regulation of the practice of medicine.

But perhaps this glaring inconsistency is an example of abortion exceptionalism. Perhaps silver linings can be found in First Amendment deregulation outside the abortion context. Niko suggests that the Supreme Court is gearing up to reverse Employment Division v. Smith and make it easier obtain Free Exercise Clause exemptions from social and economic regulations. This move—in religion rather than in speech—would strengthen the religious claims of those seeking exemptions from anti-discrimination laws. But it could also strengthen the religious claims of people seeking exemptions from, for example, immigration laws, such as thosearrested for providing food and water to immigrants in the desert.  Religious objectors exist across the political spectrum, and expanded religious liberty protections should in theory become available to everyone.

Of course, this assumes that in practice the Court will apply its deregulatory laws even handedly.  

Catherine, what do you think?


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