Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.
In 1992, the Supreme Court upheld a Pennsylvania law that required doctors who performed abortions to provide some kinds of information to their patients. Several members of the court’s liberal wing said that the California law served similar interests.
“In law,” Justice Stephen G. Breyer said, “what is sauce for the goose is sauce for the gander.” Justice Kagan called the California law “the exact flip side” of the one sustained in the 1992 decision, Planned Parenthood v. Casey.
Michael P. Farris, a lawyer for the centers, said the law upheld in the Casey decision differed from the one in California because it concerned medical professionals.
“Pennsylvania imposed that requirement in the context of an informed consent discussion,” he said. “Informed consent is triggered by a doctor proposing to perform a particular medical intervention.”
Justice Kennedy, who joined the controlling opinion in Casey and probably holds the crucial vote in the new case, seemed hostile to the California law.
“Do you agree,” he asked a lawyer for the state, “that mandating speech that the speaker would not otherwise give — indeed, does not agree with — alters the content of the message?”
The lawyer, Joshua A. Klein, said yes. The required disclosures, he said, provided information where and when they were most valuable.
Justice Neil M. Gorsuch responded that the state had other ways to convey its message. “If you’re trying to educate a class of persons about their rights,” he said, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
The California Legislature found that the roughly 200 centers in the state used “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.”
Justice Sotomayor said she had examined one center’s website and found it misleading. She said it showed what appeared to be a nurse in front of an ultrasound device, mentioned abortion and indicated that the center complied with medical privacy laws.
“If a reasonable person could look at this website and think that you’re giving medical advice,” she asked, “would the unlicensed notice be wrong?”
Mr. Farris said unlicensed centers do not provide medical services but only advice about pregnancy.
Justice Kennedy was critical of Justice Sotomayor’s outside research. “In this case,” he said, “I didn’t go beyond the record to look on the internet because I don’t think we should do that.”
Justice Gorsuch said the state could address misleading speech more directly, through lawsuits and prosecutions. That “puts the burden on the government to prove that someone has abused their free-speech rights,” he said. The California law, by contrast, he said, “requires you to compel speech from someone else that implicates First Amendment concerns.”
“And this court,” he added, “is normally pretty jealously protective of speech.”
A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld both parts of the law.
“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,” Judge Dorothy W. Nelson wrote in an opinion upholding the requirement that licensed clinics post a notice about obtaining abortions.
“The notice informs the reader only of the existence of publicly funded family-planning services,” Judge Nelson wrote. “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”
Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options.
Jeffrey B. Wall, a lawyer for the federal government, took a middle ground. He said requiring centers not licensed by the state to say so was acceptable. But he objected to requiring licensed centers to provide information about abortion.
“What the First Amendment does not allow and what California has done is to require pregnancy centers to make disclosures about services they do not provide and 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,” he said.
The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, is in some ways similar to one argued last year concerning a Colorado baker who refused to make a custom wedding cake for a same-sex couple.
Both cases arose from religious objections but were pursued as free-speech challenges to state laws.
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