How the Supreme Court's First-Amendment Case Could Help Abortion Clinics

The case pits free speech rights of anti-abortion centers against California's consumer regulations, and will likely affect abortion laws in other states

The 45th Annual March for Life in Washington D.C., January 19, 2018. The annual march is held to protest the legality of abortion and is held around the anniversary of Roe v. Wade each year. Credit: Mark Peterson/Redux

When Shania went to the Hartford GYN Center for her abortion appointment, she and her mother walked up the path to the clinic where they were approached by a woman. That woman led her through a door into what Shania and her mom thought was the abortion clinic. Once inside, the woman sat Shania down and started telling her and her mother all about how sinful abortion is. As Shania later told the story to abortion counselor, who then testified about the story to the Hartford City Council: "She was saying stuff like if I get a surgical one I might not make it out alive. She said that someone had half a baby left inside her after. She was ignoring what I was saying and just kept saying all this stuff." Shania and her mother realized they were in the wrong place, so asked where her abortion appointment was. The woman told them there was no abortion clinic there.

This was an outright lie – there was an abortion clinic mere feet away from where they were. Shania and her mom were beckoned into the Hartford Women's Center – one of many so-called "crisis pregnancy centers" which specialize in talking women out of ending pregnancies, also sometimes called "fake women's health centers" or "fake clinics" by their critics – that shares a walkway with the Hartford GYN Center, a real abortion clinic. Women walking to the abortion clinic turn one way at the end of the walkway to enter the clinic, but if they turn the other way, as Shania and her mom did when the woman directed them to do so, they enter the crisis pregnancy center.

That there was no abortion clinic was just one of the lies that Shania was told. Everything she was told about abortion safety was also untrue. As confirmed in a landmark study from the National Academies of Sciences, Engineering, and Medicine last week, abortion is a safe medical procedure. Reviewing all of the literature in the field, the report concluded that no matter the type of abortion, complications are rare, and in comparison, the procedure is much safer than childbirth. In fact, the report stated that even though the procedure is incredibly safe, abortion would be even safer if states didn't create so many needless restrictions that limit women's access to abortion and delay care. That abortion is safe is not new information, as it was the basis for the Supreme Court's decision in 2016 that Texas' abortion restrictions were unconstitutional. This new report just confirms what we already knew.

Around the country, though, some women find themselves hearing otherwise at fake women's health centers, like the one that Shania and her mom went to. There is as yet no quantitative evidence that women are actually deceived into not having abortions when they go to these centers, but there is much anecdotal evidence that women who go to them are shamed and lied to.

As a result, California has passed legislation to regulate these centers. The law, passed in 2015, requires two different things: First, unlicensed pregnancy centers must post a notice that they do not have a licensed medical professional on site. Second, licensed centers must inform patients that they can get state-funded prenatal care, family planning and abortion care by calling a county health department. The National Institute of Family and Life Advocates, an umbrella organization for these pregnancy centers, challenged both parts of this law. So far, it has been upheld in the lower courts. On Tuesday, the Supreme Court will hear arguments in the case challenging this law.

The basic argument from the pregnancy centers is that they are being forced to speak in a way they don't want to, and that violates the First Amendment – one of the long-standing principles of free speech is that the government cannot compel people to speak in ways that they don't want. As the Supreme Court stated long ago, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

However, there are instances when people can be forced to speak, and the lower courts in this case sided with California in that regard. Those courts found that patients have a strong interest in truthful information and that the California requirements merely require short statements of fact and do nothing to stop the pregnancy centers from communicating their anti-abortion message.

Because there are countless laws across the country that require abortion clinics to say things that they don't want to because they are irrelevant or outright lies – about the connection between abortion and breast cancer, that medical abortions can be reversed, that there are fake clinics the patient can go to free of charge and more – this case has broad implications not only for the pregnancy centers challenging the law but also for abortion clinics as well. In fact, it's very possible both sides could claim a win (or a loss) regardless of how this case comes out.

For instance, imagine if the Supreme Court upholds California's law. Abortions rights proponents will declare a win because the Supreme Court will allow states to rein in fake clinics. But anti-abortion advocates could also claim victory, because if the Supreme Court says that giving patients all alternatives in a health care setting is a compelling interest that overrides free speech concerns, states hostile to abortion might be constitutionally permitted to require abortion clinics to inform patients about fake clinics or other information. In other words, weakening compelled speech rules for fake clinics could harm abortion clinics that are constantly trying to challenge requirements foisted upon them.

On the flip side, imagine if the Supreme Court strikes down California's law. Anti-abortion advocates will no doubt celebrate that California can't force them to advertise for services they oppose. But, abortion rights proponents could have a powerful new weapon in their fight against state mandates. After all, if a state can't require fake clinics to inform patients about alternatives they don't believe in, then a state also shouldn't be able to require abortion clinics to say things that are not supported by medical research (like a link to breast cancer or about reversing abortions) or to advertise for nearby pregnancy centers.

The key to the case, as always, is going to be Justice Anthony Kennedy. He is undoubtedly a conservative and has regularly protected the free speech rights of anti-abortion forces in the past. However, he also supports abortion rights and signed onto the 2016 decision that decried lies and false data in abortion regulation. Which category he thinks the California law falls into will decide the outcome here.