On June 26, 2018, just two days before the end of its term, the United States Supreme Court announced its decision in National Institute of Family and Life Advocates v. Becerra. The case had been closely watched, because it would decide lingering questions about free speech in the context of the national debate over abortion. The case concerned the California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act, known as the “FACT Act”.
The FACT Act regulated pro-life pregnancy centers (described by the Court as “largely Christian belief-based”), requiring them to provide women with certain notices. Clinics that were licensed had to notify women that the State provides free or low cost services including abortion, and give them a telephone number to call. Clinics that were not licensed had to notify women that they were not licensed to provide medical services. Two pregnancy centers, one licensed and the other unlicensed, filed suit challenging the law as a violation of their First Amendment Right to Freedom of Speech.
The First Amendment protects freedom of speech. This means both that the government cannot prevent citizens from saying what they want to; and cannot compel citizens to say what they don’t want to. The question presented was whether the State could compel the pro-life centers to deliver to women that it served a message that abortions were available at little or no cost.
California contended the law was a regulation of “professional speech.” It argued that the government has the power to regulate speech by professionals when giving their expert knowledge and judgment, the way a doctor is required to get informed consent from a patient before an operation.
In a 5 – 4 decision, the Supreme Court rejected this argument and ruled that the FACT Act was an unconstitutional violation of the First Amendment. Justice Thomas, writing for the majority, expressly stated that “this Court has not recognized ‘professional speech’ as a separate category of speech” that was open to government regulation. The notices at issue had nothing to do with any medical procedures, but rather applied “to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”
Justice Thomas rejected the notion that “professional speech” may be regulated by the government – arguing that “professional speech” instead is an area where the government has the least right to impose its views: “Doctors help patients make deeply personal decisions, and their candor is critical.” If the government polices the personal decisions made in a professional environment, it could “fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”
The Court saw great danger in allowing any government regulation of “professional speech”, noting that this would give the State “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” The State could then choose those groups where it could regulate their speech and thereby have a “powerful tool to impose invidious discrimination of disfavored subjects.” In the view of the majority, that is exactly what was happening in California, to the “disfavored” pro-life message. The Court noted that facilities that provided similar services, but were not pro-life, did not have to provide the same notices or make the same disclosures, showing that viewpoint discrimination.
The Court therefore found the California statute unconstitutional, as compelling speech by pro-life pregnancy centers: “It targets speakers … and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”
I was co-counsel for the Greater Baltimore Center for Pregnancy Concerns against as similar law passed by the Baltimore City Council. The United States District Court for the District of Maryland declared the Baltimore City law unconstitutional. The City appealed and a unanimous Fourth Circuit opinion affirmed (you can read the opinion here). The City sought review at the Supreme Court. Two days after the Supreme Court issued its decision in National Institute of Family and Life Advocates v. Becerra, it refused Baltimore City’s petition, leaving the Center with a clear victory for the First Amendment.
Greater Baltimore Center for Pregnancy Concerns, et al. v. Mayor and City Council of Baltimore, et al., No. 16-2325, _____F2d.,_____ (4th Cir. 2018)).
Peter J. Basile is a principal with the law firm of Ferguson, Schetelich & Ballew, P.A.. He is a graduate of George Washington University School of Law, and has a diverse litigation practice throughout the Federal and State Courts of Maryland and the District of Columbia.