By Lisa Soronen
NIFLA v. Becerra isn’t exactly an abortion case—it’s a speech case.
California law requires that licensed pregnancy-related clinics disseminate a notice stating that publicly funded family planning services, including contraception and abortion, are available. It also requires unlicensed pregnancy-related clinics to disseminate a notice they are unlicensed. The National Institute of Family and Life Advocates (NIFLA) operates 111 pregnancy centers in California. None offer abortions or abortion referrals. Only 73 are licensed.
In NIFLA v. Becerra, NIFLA claims that both requirements violate the First Amendment Free Speech Clause. The 9th U.S. Circuit Court of Appeals disagreed.
In Reed v. Town of Gilbert, Arizona (2015), the U.S. Supreme Court held that strict (usually fatal) scrutiny applies to content-based regulations on speech. The 9th Circuit concluded that both notice requirements are content-based because they require clinics to engage in speech on a particular subject matter. But according to the 9th Circuit, Reed doesn’t require courts to apply strict scrutiny in all cases or in this case in particular. The Supreme Court has not held what level of scrutiny applies to abortion-disclosure cases.
The licensed notice is professional speech and the 9th Circuit applies intermediate scrutiny to such speech. The court concluded the license notice survives intermediate scrutiny because California “has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion” and the notice “does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services.”
The 9th Circuit also held that the unlicensed notice survives any level of scrutiny including strict scrutiny. “California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state.” The unlicensed notice is narrowly tailored because it “helps ensure that women, who may be particularly vulnerable when they are searching for and using family-planning clinical services, are fully informed that the clinic they are trusting with their well-being is not subject to the traditional regulations that oversee those professionals who are licensed by the state.”
The 9th Circuit ruling in NIFLA v. Becerra conflicts with a 2nd U.S. Court of Appeals ruling in Evergreen Association v. City of New York. Among other things, the 2nd Circuit struck down a city ordinance requiring pregnancy service centers to disclose whether they provide abortions or abortion referrals.
Lisa Soronen is executive director of the State and Local Legal Center. She is a frequent contributor to the NCSL Blog on judicial issues.