NIFLA v. Becerra 20 Mar 2018

The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose is to make sure that state residents know their rights and what health care services are available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals. Petitioners--two crisis pregnancy centers, one licensed and one unlicensed, and an organization of crisis pregnancy centers--filed suit. They alleged that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment.
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Even if the State had presented a non-hypothetical justification, the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State's informational interest. It requires covered facilities to post California's precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services, but not those that provide, e.g., nonprescription birth control. Such speaker-based laws run the risk that "the State has left unburdened those speakers whose messages are in accord with its own views." For these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. Pp. 17-20. 839 F. 3d 823, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ROBERTS, C. J., and ALITO and GORSUCH,JJ., joined. BREYER, J., filed dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.