Speak for yourself

California’s deputy solicitor general Joshua Klein arrived in Washington, D.C., to pouring rain and 35-degree temperatures, and then he experienced an equally chilly reception from the U.S. Supreme Court as he attempted to defend his state’s laws regulating pro-life pregnancy centers. Justice Anthony Kennedy, the court’s swing vote, was so icy toward Klein on Tuesday that there should have been a winter weather advisory.

A broad majority of the justices looked ready to strike at least parts of California’s 2015 law, called the Reproductive FACT Act. The law lays out a host of requirements for licensed and unlicensed centers providing free pregnancy care. Unlicensed facilities must print disclaimers in 13 languages about the services they provide and post them in their waiting rooms and in any advertisements. Licensed pregnancy centers must also post information in particular-sized fonts advertising the state’s free or low-cost abortion coverage, including contact information for how to obtain abortions through the state Medi-Cal system. California, according to the Guttmacher Institute, has about 160,000 abortions a year—the highest number in the country.

A coalition of pregnancy resource centers, under the National Institute of Family and Life Advocates (NIFLA), challenged the law as a violation of free speech under the First Amendment. Several other California pregnancy centers filed their own challenges that are in lower courts pending the outcome of this case.

The arguments were messy but the pregnancy centers look likely to win in some fashion—the question is how big. Everything was a little chaotic; the opposing lawyers—California’s Klein and Alliance Defending Freedom’s CEO Michael Farris—were not sharp and couldn’t answer particular questions. Kennedy at one point chastised Justice Sonia Sotomayor for doing internet research on her own that wasn’t part of the official record. Later, Chief Justice John Roberts called out Sotomayor for interrupting. Justices Clarence Thomas and Stephen Breyer had their own private conversation for several minutes during the arguments. Justice Elena Kagan spilled her coffee and a page ran to find napkins.

But through all the mess came a few themes. The liberal justices questioned how California’s requirement was different from requirements in pro-life states that doctors make certain disclosures to women before they perform abortions. Kagan and Breyer also said the law might have been “gerrymandered,” or written in a way that unfairly targets pro-lifers.

Meanwhile, the conservative justices including Kennedy clearly saw the California law as a burden on free speech. Kennedy noted that a pregnancy center posting a billboard ad that said simply “Choose Life” would have to include all the required FACT Act disclosures.

The conservative justices including Kennedy clearly saw the California law as a burden on free speech.

“It seems to me that this is an undue burden, and this should invalidate the statute,” said Kennedy. Several liberal justices, like Kagan, joined his concern about the ad requirements. Klein said the statute wouldn’t cover a "Choose Life" ad, but then Justice Samuel Alito challenged him on the details. What if the ad was from a clinic covered by the statute? Klein admitted, yes, that ad would have to print the FACT Act disclosures in 13 languages.

At that admission, even Sotomayor said the requirement sounded “burdensome.” Klein tried to recover by saying lower courts should gather more evidence on the ads pregnancy centers run. Kennedy snapped: “Do you want me to have a remand for them to tell me what a billboard is?”

Justice Neil Gorsuch said the state was using pregnancy centers for a “free ride” to advertise the state’s abortion coverage. “It’s pretty unusual to force a private speaker to do that for you,” he said. Klein admitted as much, saying the law was designed to fill a gap of “publicity campaigns” about state abortion coverage. Gorsuch also posited that questionable pregnancy centers could be challenged for fraud under commercial laws, without the FACT Act.

In 2014, the 2nd U.S. Circuit Court of Appeals, a more liberal circuit court, ruled in a similar case that New York had violated the speech rights of pregnancy centers. The court tossed out the requirement that pregnancy centers post signs saying they do not offer abortion referrals. But the circuit court ruled that pregnancy centers must disclose whether they have medical personnel on staff. If the Supreme Court doesn’t issue a broad ruling tossing out the FACT Act entirely, it seems likely it could be headed toward that sort of mixed ruling. Either way, the pregnancy centers seem headed toward a win.

Outside the court in the cold rain stood dozens of women who run pregnancy resource centers located throughout the country. The women's signs were wet and wilted. DeLana Borja traveled from Michigan to the Supreme Court steps for the first time, representing the Crossroads Care Center. She was concerned that a ruling against the pregnancy centers would mean states could force other kinds of speech.

“We don’t tell people they can’t have an abortion,” she said about her pregnancy center. "But we don’t tell them where to get an abortion.”

Meanwhile NARAL Pro-Choice America had also brought supporters to the court steps, and they trotted out the trope that pregnancy centers try to mislead women to prevent them from having abortions, the theory on which California’s law is based.

“End the lies!” they chanted. It was an unfortunate choice for the abortion advocates. Several people asked me in horror, “Are they saying, ‘End the lives'?”