//  3/15/18  //  Commentary

The stakes will be high next week when the Supreme Court hears oral argument in NIFLA v. Becerra, a case in which the Supreme Court will be considering the constitutionality of a California law designed to ensure that women seeking reproductive health care have access to complete and accurate information.  NIFLA, the law’s challenger, claims that the California law violates the First Amendment because it compels its staff to inform women of their rights to state-funded care, including abortion.  In a term packed with huge First Amendment cases, NIFLA is one of the biggest. 

NIFLA shares a lot in common with another big First Amendment case this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In both cases, the plaintiffs—represented by Alliance Defending Freedom, which litigates frequently on behalf of conservative causes—are urging the Supreme Court to weaponize the First Amendment, offering a sweeping view of the First Amendment’s protection against compelled speech. 

The California law at issue in NIFLA requires reproductive health care clinics to post a simple notice, commonplace in the law.  If the clinic is licensed to provide medical services, it must inform women that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women” and to “contact the county social services office” to “determine whether you qualify.”  If the clinic is unlicensed, it must post a notice that it “is not licensed as a medical facility” and “has no licensed medical provider who provides or directly supervises the provision of services.”  Notices like these inform people about their legal rights and services available under the law.  They reflect the basic idea that disclosure of truthful, pertinent information will help people make decisions, and they fall well within the confines of the Supreme Court’s First Amendment precedents.  

Every day, when individuals go to doctors’ offices for medical care, they receive a government-mandated notice that tells them about their rights to medical privacy and how to exercise them.  Every day, individuals receive legally required notices from insurance companies informing them about their rights to insurance coverage and how to access benefits.  Every day, employees see at their place of business a government-required notice informing them of federal rights to be free from employment discrimination, their right to use family and medical leave to care for a loved one, and their right to safe working conditions.  As CAC’s brief on behalf of members of Congress demonstrates, these examples are just the tip of the iceberg: disclosure requirements, like those in the California law, are pervasive in the law.  They serve to ensure that statutory rights are actually enjoyed by the people they are designed to protect.

Such disclosure requirements are consistent with the First Amendment.  Indeed, in a number of different areas of the law, the Supreme Court has upheld disclosure as a form of government regulation that is friendly to the First Amendment, recognizing that as the Supreme Court put it in Citizens United v. FEC, “disclosure is a less restrictive alternative to more comprehensive regulations of speech.”  Rather than suppressing speech, disclosure requirements give people more information, not less.  They are consistent with the bedrock First Amendment principle that “more speech, not less, is the governing rule.”  This is particularly true when the government requires a service provider to provide consumers complete, truthful, and accurate information about their rights to health care.  Disclosure requirements can protect consumers, prevent deceptive and other kinds of abusive practices, and even save lives by making critically important information about legal rights and services available to people making important medical decisions.  

NIFLA, like the petitioners in Masterpiece Cakeshop, urges the Justices to radically revise the Court’s First Amendment precedents.  In its view, compelled disclosure is presumptively unconstitutional and should always be subjected to strict judicial scrutiny, the most demanding standard in constitutional law.  According to NIFLA, laws mandating disclosure of neutral, factual information—such as disclosures that inform individuals of their rights and how to exercise them—are “precisely the kind of compelled speech that the Constitution forbids.”  This unforgiving view of the First Amendment—which has never been the law and is badly out of step with decisions such as Citizens United—would gut a vast array of disclosure laws and leave consumers in the dark about critically important matters.  

NIFLA attacks disclosure as intrusive and paternalistic, insisting that the state has no basis to assume that “women are unable to make phone calls, search the internet, or ask basic questions of service providers.”  It is certainly true that some persons might succeed in learning about their rights on their own.  But disclosure laws like California’s—which apply to so many areas of American life—ensure that all persons know their rights and how to exercise them.  Under NIFLA’s argument, no disclosure regime would be safe from invalidation.   

Indeed, even the Trump administration—which has been incredibly hostile to abortion—recognized that the sweeping First Amendment arguments pressed by NIFLA go too far.  The Solicitor General, while agreeing with a part of NIFLA’s claim, told the Justices that NIFLA’s argument that “all disclosure laws requirements are subject to strict scrutiny . . . is wrong and inconsistent with Supreme Court precedent.”  The Solicitor General urged the Justices to recognize that states have the authority to ensure that service providers do not mislead the public—as many anti-abortion crisis pregnancy centers do—by requiring that consumers are informed about whether a provider is licensed to provide medical services.

The Roberts Court has been called “the strongest First Amendment Supreme Court in our history,” but even Justices, including Chief Justice John Roberts and Justice Anthony Kennedy, who broadly interpret the First Amendment’s guarantee of the freedom of speech, should be skeptical of NIFLA’s sweeping revision of free speech principles.  NIFLA ignores basic free speech precedents and turns a blind eye to the critical role disclosure plays in ensuring that consumers have access to truthful and accurate information.  It would give service providers a constitutional right to keep their consumers in the dark about their legal rights and services available to them under law. 

Disclosure laws, like California’s, further First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits.  The Supreme Court should uphold California’s law.       


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