Nov 16

Nov 16 Supreme Court Will Hear Abortion Case Challenging California Law Katherine Slye

The Supreme Court just agreed to hear a case out of California that requires pro-life pregnancy centers to post information about the availability of contraception and abortion services from the state. “The law, known as the Reproductive FACT Act, says these centers must disclose whether they have a medical license and have medical professionals available. They must also post a notice in the waiting room that says: ‘California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, pre-natal care and abortion.’”

The law passed in 2015, and many pro-life pregnancy centers immediately challenged it in court on the grounds that it violated their first amendment protection of free speech. The centers claim that being required to post information about abortion services forces them “to send a message that conflicts with their aim of encouraging childbirth, not abortion.”

The Court has limited the question it will consider in the case to: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment.” So, in theory, this decision should have no bearing on the legality of abortion. However, a “loss” for the pro-choice side in this case—striking down the California law—could actually be a win.

If a Court rules that the California law oversteps and infringes upon the first amendment of the pro-life clinics, then that legal framework could be extended to current informed consent laws that require doctors to read a script and/or provide specific, often legislatively written, information to women before they can undergo an abortion. In other words, a pro-life win in the California case could strengthen the grounds upon which to challenging the current 18 mandated counseling laws across the country.

According to the Guttmacher institute’s Overview of Abortion Laws, “18 states mandate that women be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer (5 states), the ability of a fetus to feel pain (13 states) or long-term mental health consequences for the woman (8 states).”

As striking down the California law could actually be a win for the pro-choice side, an upholding of the law could equally be a loss for those who support a woman’s right to choose. If the law is upheld, which essentially says the government can place requirements on what information medial facilities/clinics must provide to patients, this could strengthen the argument for keeping the current counseling laws discussed above.

If a liberal state government like California can require pro-life clinics to post information about abortion and contraception, a conservative state government like Kansas can require an abortion clinic provide certain information regarding the dangers of abortion. However, the accuracy of the information in the latter complicates that argument (a larger discussion for another time), but an upholding of the California law could make striking down those laws a more difficult task.

Other than the overall impact on the future of restrictions and regulations surrounding abortion, this case is one to watch for other reasons. This is the first abortion case the Court will hear since President Trump took office, and is the first test on the issue for Justice Neil Gorsuch, whom refused to answer hypothetical questions about abortion during his confirmation hearings. The Justice to watch during oral argument is Justice Anthony Kennedy because the outcome will probably hinge upon his vote, very often the swing vote on the Court.

Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."

Author's Note: If you are interested in learning more about the struggles between pro-life and pro-choice clinics, I encourage you to check out the documentary 12th and Delaware, which explores the situation when a crisis pregnancy center moves in across the street from an abortion clinic.