The first requires "licensed covered facilities" - facilities licensed by the state that offer certain medical services - to inform their clients that "California has public programs that provide immediate free or low-priced access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women", and to provide a phone number patients can use to connect with these services. "Under the Constitution, California is required to respect the free speech rights of all of its citizens-not just those in the abortion industry", said Farris. The court has a 5-4 conservative majority. California is free to pick a side in the public debate and to prioritize messages about abortion, and the machinations of the state provide an effective means for it to disseminate such messages.
NINA TOTENBERG, BYLINE: The California Legislature found that hundreds of crisis pregnancy centers in the state used, quote, "intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully informed, time-sensitive decisions about critical health care". It has recognized time and again that if we are to remain free to engage in open discourse on the most pressing social issues, the government can not devise laws to harm speakers on one side.
"If you have a law that's neutral on its face, but then it has a lot of insane exemptions, and when you apply all the exemptions, what you're left with is a very unusual pattern, and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics", Alito said. Justice Elena Kagan asked if it might have been rigged in a way that would have targeted pro-life groups.
"If it has been gerrymandered, that's a serious issue", Kagan said. Even Sotomayor suggested to him that this indicates the state's law goes too far. "Don't we need a trial on this?" he said at one point.
Harle believes the oral arguments bode well for her clients. It also provides contact information to learn more about abortions.
He was joined by the Trump administration's Justice Department, whose attorney, Jeffrey Wall, said the state was requiring the clinics to make disclosures about "services ... that would violate their most deeply held beliefs, without any showing by the state that it truly needs to compel speech rather than speak its own message". They challenged this in the courts and got a favorable ruling.
'Reasonable licensing' or government interference?
Both conservative and liberal justices voiced skepticism Tuesday about the "Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act" (Reproductive FACT), a law that requires pregnancy centers to tell their clients about the availability of abortion at little or no cost.
Yet it quickly became clear that, due to the specific nature of this California law, the Court may not reach the broader question of how the First Amendment should apply to abortion generally.
If the court upholds the law, it will affect only California - for now. In fact, the state hasn't pointed to anywhere else in California law where it imposes such onerous requirements.
Along with the wave of pro-life legislation at the state level in recent years, these faith-based clinics-often called crisis pregnancy centers or CPCs-represent a major force in the movement to end abortion; with more than 3,000 in the USA, they outnumber abortion clinics three to four times over. There is no similar requirement (in reverse) for abortion clinics.
"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services". Violators are liable for a civil penalty of up to $500.
Klein said this explains the exemptions to the disclosure requirements for private doctors and other facilities that typically do not offer free services.
California said its law does not force crisis pregnancy centers to refer women for abortions, nor does it prevent them from voicing their views on abortion.
Evangelicals are responsible for the majority of the pregnancy resource centers in the United States, and NIFLA's case has drawn amicus briefs in support from the two largest networks of centers, Heartbeat International and Care Net, as well as from the National Association of Evangelicals.
"The First Amendment does not bar states", from such a "carefully neutral" notice, Klein added. The clinics claim that requiring them to deliver an abortion message antithetical to their mission is unconstitutional. The FACT Act requires that the advisory appear in large font in a "conspicuous place" within the clinic. The disclaimers are created to prevent pro-life centers from even telling women that the centers exist, and the disclaimers wrongly imply that the centers should have a license - when that's just not true.
Some might ask in the interest of fairness and equality (two buzzwords the left likes to use in other situations) whether abortion clinics are required to post notices with information about alternatives to the procedure.
How the court rules could impact other laws across the country.
If the court sides with California, Harle said the consequences would be chilling. "Why isn't this also informed consent?"
"Donors are burdened with a conflict: What am I doing now if I'm supporting these centers but they're having to advertise for abortion?" She noted that some of the statements that states require those doctors to give to women have virtually nothing to do with the abortion procedure itself.