On June 26, 2018, the United States Supreme Court decided National Institute of Family and Life Advocates v. Becerra, No. 16-1140, holding that the petitioners were likely to succeed on their claim that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) violates the First Amendment.
California enacted the FACT Act to regulate “pro-life” or crisis pregnancy centers. The Act requires licensed facilities to post and disseminate a government-drafted notice that informs people of California’s free or low-cost access to “comprehensive family planning services . . . prenatal care, and abortion to eligible women.” The Act also requires unlicensed facilities to post and disseminate a government-drafted notice that informs people that the facility does not have a licensed medical provider to provide or oversee services provided.
After the FACT Act became law, licensed and unlicensed crisis pregnancy centers sued, arguing the notice requirements violate the First Amendment’s free speech protections. The district court denied a motion for a preliminary injunction, reasoning the petitioners were unlikely to succeed on the merits of their claim. The Ninth Circuit affirmed.
The Supreme Court reversed and remanded, holding that the petitioners were likely to succeed on the merits of their claims that both notice requirements violate the First Amendment. Ordinarily, content-based regulations like the FACT Act are subject to strict scrutiny. California argued that the category of “professional speech” is subject to lower scrutiny, but the Supreme Court found that California had not shown that such a category exists. The Court further held that the FACT Act was not subject to the rule of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, which applies a lower standard of review to certain required disclosures that are purely factual and uncontroversial, because its required disclosures were highly controversial.
Ultimately, however, the Court held that, even if intermediate scrutiny applied, the FACT Act failed that standard. Regarding the licensed notice requirements, the Court reasoned that the notice was not sufficiently drawn to achieve a substantial state interest, even if one existed. The licensed notice is underinclusive to achieve a goal of educating low-income women because it applies only to some facilities that low-income women might use. The requirement excepts certain clinics that are likely to serve low-income women, simply because the clinics provide the services included in the notice. California also could reach low-income women with its own advertising about services without burdening the licensed clinics with unwanted speech.
Regarding the unlicensed notice, the Court held that it failed any level of scrutiny because it was unjustified and unduly burdensome. California did not identify a justification that was more than “purely hypothetical.” Moreover, the required disclosure was unduly burdensome because it applied to all print and digital advertising, meaning that a “Choose Life” billboard, for instance, would have to include up to 13 versions of the notice in various languages, drowning out the speaker’s own message.
Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch joined. Justice Kennedy filed a concurring opinion, in which Chief Justice Roberts and Justices Alito and Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.