WASHINGTON (USA Today) — A California law requiring anti-abortion pregnancy centers to inform clients about state-funded abortions ran into trouble at the Supreme Court Tuesday.
The court’s conservative justices — including Anthony Kennedy, who usually determines the result in close cases — said the law appears to target only those clinics that counsel women to complete their pregnancies.
Kennedy, the lone justice from California, said for centers opposed to abortion, the law requires that “the content of the message be altered.”
Even some of the court’s liberal justices expressed concerns about the law, but they compared the requirement to Supreme Court-sanctioned laws requiring doctors performing abortions to advise women about alternatives.
“There are pro-choice states, and there are pro-life states,” Justice Stephen Breyer said. “If a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?”
California’s law, which is similar to others in Illinois and Hawaii, has two requirements. Certain licensed medical centers must inform clients 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.” The notice includes a phone number for the local social services office.
For unlicensed centers, the law requires that they tell clients they have no licensed medical providers on staff.
The Justice Department, intervening in the case, opposed the first requirement but not the second. But it appeared the justices had more problems with the rule for unlicensed centers.
If such a center would be required to post the notice simply because it had a sign in front saying “Choose Life,” Kennedy said, that would be unconstitutional. But California’s deputy solicitor general, Joshua Klein, said the sign would not trigger the requirement.
Justice Sonia Sotomayor said websites for unlicensed centers imply that they are medical facilities and provide medical advice. “How’s that different from what a doctor does?” she asked.
Michael Farris, the attorney representing the National Institute of Family and Life Advocates, which is linked with about 130 California pregnancy centers, said doctors can be required to get a patient’s “informed consent” to an abortion because of an imminent medical procedure. The same is not true for pregnancy centers, he said.
That argument didn’t please the liberal justices. “Why isn’t this also informed consent?” Justice Ruth Bader Ginsburg said of the California law.
Several justices on both sides said the case came to them without a full trial record that would turn claims into facts. Faced with the claim that 98 percent of the facilities affected by the law are anti-abortion, for instance, Klein said the state lacks firm numbers.
The state contends that many pregnancy centers deceive and misinform clients by posing as medical clinics and running ads intended to attract women in search of traditional abortion and contraception services. The state says more than half of its 700,000 pregnancies each year are unintended, and women need to know their options.
The outcome of the case could have unintended consequences. State restrictions on abortion, such as requiring ultrasounds and informing women about the growth of the fetus, could be at risk if California loses. If the state wins, however, those restrictions could be on safer ground.