Bench Memos

Law & the Courts

Solicitor General’s Perplexing Brief in Abortion Compelled-Speech Case

In National Institute of Family and Life Advocates v. Becerra—which David French calls the “dangerous Supreme Court case nobody is talking about”—the Supreme Court will decide whether two provisions of a recently enacted California law violate the Free Speech rights of pregnancy centers that counsel against abortion.

First, the so-called Licensed Notice provision requires state-licensed medical facilities that provide pregnancy-related services* to disseminate this message to their clients:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

As David puts it:

The [provision] requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.

Second, under the Unlicensed Notice provision, a facility that is not licensed by the state (and has no licensed medical provider supervising its operations) and that provides pregnancy-related services must post at its entrance, in its client waiting area, and in all of its advertising materials this statement:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

This sign must be posted both in facilities that might plausibly be mistaken for medical offices (such as those that offer obstetric ultrasounds) and in those that would not (e.g., “pregnancy options counseling” in a church basement).

The Solicitor General has filed an amicus brief that argues that the Licensed Notice violates the Free Speech rights of pro-life pregnancy centers but that the Unlicensed Notice is okay. I think that the SG’s brief is clearly right on its conclusion on the Licensed Notice. But as David explains in this second piece of his, the brief (pp. 24-31) reaches this conclusion via a path (“heightened scrutiny” rather than strict scrutiny) that would give the government greater power to control “the non-commercial speech of nonprofit advocacy organizations that are in the very business of persuasion.”

Adding to David’s critique of the SG’s brief on the Licensed Notice, I’ll focus here on a similar and arguably worse problem in how the brief addresses the Unlicensed Notice.

On the Unlicensed Notice, the SG’s brief (pp. 13-15) invokes “a more deferential standard” of review that applies “to laws that require providers of commercial services in the marketplace to disclose factual, uncontroversial information about their own services.” (Emphasis added.) Under this “Zauderer standard,” required disclosures that are “uncontroversial” are permissible so long as they are not “unjustified” or “unduly burdensome.”

The SG’s brief (pp. 20-24) rejects a “categorical rule” that the Zauderer standard for speech related to commercial services doesn’t apply “when professionals offer their services without charge.” Such a rule would indeed seem overly broad. But it’s one thing to hold that a provider of commercial services is subject to the Zauderer standard even when that provider (to use the SG’s examples) “offers free samples as a promotion” or “offers free consultations to attract customers.” It’s something very different to maintain that a pregnancy center that provides all of its services for free is still somehow deemed to be providing “commercial services” and can have its speech regulated as “commercial speech.” Yet that is what the SG’s brief oddly does.

To put the point another way: The proposition that the Zauderer standard applies to some providers of free services—that there is, in short, no “categorical rule” to the contrary—does not mean that it applies to all such providers. The SG’s brief recognizes as much in its discussion (pp. 22-23) of NAACP v. Button (1963) and In re Primus (1978), both of which applied strict scrutiny to prohibitions that prevented civil-rights litigation organizations from soliciting pro bono clients. In a strange passage, the SG’s brief, quoting Primus, tries to cabin those two rulings on the ground that the services the organizations provided involved “expressive and associational conduct at the core of the First Amendment’s protective ambit.” But the brief never stops to address why the entirely non-commercial services provided by a pro-life pregnancy center don’t also involve core First Amendment speech.

It’s possible (I haven’t studied the matter closely) that the Unlicensed Notice might be permissible even under a higher standard of scrutiny. The larger danger of the approach taken by the SG’s brief is that it would seem to invite the extraordinary conclusion that all of the speech of pro-life pregnancy centers is commercial speech and therefore easily regulable (subject, in most instances, to only very deferential review) by every state and city in the country.

That is a conclusion that no court has reached. In fact, the Ninth Circuit panel that ruled against the pregnancy centers in this case dismissed this argument in a footnote as “unpersuasive.” It is perplexing to see the United States adopt an argument that such a liberal panel did not even consider worthy of discussion in the body of its opinion.

* In an effort to be succinct, I’ve omitted, both here and in my description of the Unlicensed Notice provision, some additional criteria that are, I think, irrelevant to the points I make in this post. The primary statutory provisions are here and here.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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