SCOTUS decision: NIFLA v. Bercera

MARY REICHARD, HOST: It’s Wednesday, the 27th of June, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Yesterday, the Supreme Court handed down two very big rulings, both of them by the narrowest margins, five justices to four.

The first one slaps down a California law that targeted pro-life crisis pregnancy centers. The law imposed special requirements about what the centers must say in advertisements.

Part of that law targets centers that do not require a state license. These centers help with prenatal care for women and help with baby necessities like diapers and formula.

California law required that billboards advertising those centers had to include a 29 word disclaimer in 13 languages that they don’t provide medical services.

Justice Clarence Thomas wrote the majority opinion, but Justice Anthony Kennedy wrote a concurring opinion that blistered California for its onerous restrictions. You can hear a foreshadowing of Kennedy’s concurrence in this comment he made during oral argument in March:

KENNEDY: What would happen in an unlicensed entity, unlicensed center, just had a billboard that said, “Choose Life.” Would they have to make the disclosure?

FARRIS: Yes, your honor…

KENNEDY: Alright. Because it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute.

Another part of the law laid requirements on pregnancy centers that are licensed for medical procedures such as ultrasounds. The state required those centers to tell women about abortion services, including a phone number to refer to Planned Parenthood.

Attorney Kristen Waggoner with Alliance Defending Freedom says the opinion offers practical advice to professionals:

WAGONNER: Look at Justice Thomas’ decision and its comments on the freedom that doctors and nurses continue to have to speak their views freely, and how the state doesn’t have the authority and what a danger it is to give them the authority to compel speech in these areas.

The ruling means the case will return to lower court for further proceedings. That’s because the question before the court was whether the case could proceed at all, as the lower courts had blocked the case.

Well, the high court’s other major decision yesterday upheld President Trump’s travel restrictions. They restrict six countries, five of which are Muslim-majority nations.

The court found the president had not exceeded his authority as chief executive.

The challenge came from the state of Hawaii and the Muslim Association of Hawaii, among others. They claimed the third iteration of the so-called travel ban from September not only exceeded presidential authority; they also said it violated the Establishment Clause that bars the government from favoring any one religion.

You can hear again Justice Kennedy hinting at the eventual ruling during arguments in April. The challenger’s lawyer had just expressed the view that President Trump should have at least put in a time limitation on the travel ban.

KENNEDY: The statute says, “for such period as he deems necessary,” and he can have continuing supervision over whether it’s still necessary…So you want the president to say, “I’m convinced that in six months we’re going to have a safe world?”

The dissent compared the travel restrictions in this case to the U-S internment of Japanese-American citizens during World War II. The reference is to a case known as Korematsu v. United States.

But the five-justice majority directly countered that: That case was about U.S. citizens forcibly relocated, an obvious wrong. This case is about suspending entry into the country for the privilege of admission. Not the same thing, the majority wrote.

The court had nothing to say about the soundness of the policy itself, only that the challengers here weren’t likely to win on their constitutional claims. That’s because the president gave adequate justification on national security grounds for the travel restriction.

This case, too, reversed the lower court and sends it back for further proceedings consistent with the opinion.

(AP Photo/J. Scott Applewhite) In this April 4, 2017 photo, the Supreme Court Building is seen in Washington. 

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