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National Institute of Family and Life

United States Supreme Court

June 26, 2018

NATIONAL INSTITUTE OF FAMILY AND LIFE

          Argued March 20, 2018

          CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 16-1140.

         The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) was enacted to regulate crisis pregnancy centers-pro-life centers that offer pregnancy-related services. The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose is to make sure that state residents know their rights and what health care services are available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals. Petitioners-two crisis pregnancy centers, one licensed and one unlicensed, and an organization of crisis pregnancy centers- filed suit. They alleged that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed. Holding that petitioners could not show a likelihood of success on the merits, the court concluded that the licensed notice survived a lower level of scrutiny applicable to regulations of "professional speech," and that the unlicensed notice satisfied any level of scrutiny.

         Held:

1. The licensed notice likely violates the First Amendment. Pp. 6- 17.
(a) Content-based laws "target speech based on its communicative content" and "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Reed v. Town of Gilbert, 576 __ U.S.__, . The licensed notice is a content-based regulation. By compelling petitioners to speak a particular message, it "alters the content of [their] speech." Riley v. National Federation of Blind of N. C, Inc., 487 U.S. 781, 795. For example, one of the state-sponsored services that the licensed notice requires petitioners to advertise is abortion-the very practice that petitioners are devoted to opposing. Pp. 6-7.
(b) Although the licensed notice is content-based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates "professional speech." But this Court has never recognized "professional speech" as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals. The Court has afforded less protection for professional speech in two circumstances-where a law requires professionals to disclose factual, noncontroversial information in their "commercial speech," see, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651, and where States regulate professional conduct that incidentally involves speech, see, e.g., Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456. Neither line of precedents is implicated here. Pp. 7-14.
(1) Unlike the rule in Zauderer, the licensed notice is not limited to "purely factual and uncontroversial information about the terms under which . . . services will be available," 471 __ U.S.__, at 651. California's notice requires covered clinics to disclose information about state-sponsored services-including abortion, hardly an "uncontroversial" topic. Accordingly, Zauderer has no application here. P. 9.
(2) Nor is the licensed notice a regulation of professional conduct that incidentally burdens speech. The Court's precedents have long drawn a line between speech and conduct. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, for example, the joint opinion rejected a free-speech challenge to an informed-consent law requiring physicians to "give a woman certain information as part of obtaining her consent to an abortion," id., at 884. But the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. And many other facilities providing the exact same services, such as general practice clinics, are not subject to the requirement. Pp. 10-11.
(3) Outside of these two contexts, the Court's precedents have long protected the First Amendment rights of professionals. The Court has applied strict scrutiny to content-based laws regulating the noncommercial speech of lawyers, see Reed, supra, at, professional fundraisers, see Riley, supra, at 798, and organizations providing specialized advice on international law, see Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28. And it has stressed the danger of content-based regulations "in the fields of medicine and public health, where information can save lives." Sorrell v. IMS Health Inc., 564 U.S. 552, 566. Such dangers are also present in the context of professional speech, where content-based regulation poses the same "risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information," Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 641. When the government polices the content of professional speech, it can fail to" 'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'" McCullen v. Coakley, 573 __ U.S.__, -__ Professional speech is also a difficult category to define with precision. See Brown v. Entertainment Merchants Assn., 564 U.S. 786, 791. If States could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose "invidious discrimination of disfavored subjects." Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, n. 19. Pp. 11-14.
(c) Although neither California nor the Ninth Circuit have advanced a persuasive reason to apply different rules to professional speech, the Court need not foreclose the possibility that some such reason exists because the licensed notice cannot survive even intermediate scrutiny. Assuming that California's interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it. The notice is "wildly underinclusive," Entertainment Merchants Assn., supra, at 802, because it applies only to clinics that have a "primary purpose" of "providing family planning or pregnancy-related services" while excluding several other types of clinics that also serve low-income women and could educate them about the State's services. California could also inform the women about its services "without burdening a speaker with unwanted speech," Riley, supra, at 800, most obviously through a public-information campaign. Petitioners are thus likely to succeed on the merits of their challenge. Pp. 14-17.
2. The unlicensed notice unduly burdens protected speech. It is unnecessary to decide whether Zauderer's standard applies here, for even under Zauderer, a disclosure requirement cannot be "unjustified or unduly burdensome." 471 U.S., at 651. Disclosures must remedy a harm that is "potentially real not purely hypothetical," Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136, 146, and can extend "no broader than reasonably necessary," In re R. M. J., 455 U.S. 191, 203. California has not demonstrated any justification for the unlicensed notice that is more than "purely hypothetical." The only justification put forward by the state legislature was ensuring that pregnant women know when they are receiving medical care from licensed professionals, but California denied that the justification for the law was that women did not know what kind of facility they are entering when they go to a crisis pregnancy center. Even if the State had presented a nonhypo-thetical justification, the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State's informational interest. It requires covered facilities to post California's precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services, but not those that provide, e.g., nonprescription birth control. Such speaker-based laws run the risk that "the State has left unburdened those speakers whose messages are in accord with its own views." Sorrell, supra, at 580. For these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. Pp. 17-20.

839 F.3d 823, reversed and remanded.

          THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Kennedy, J., filed a concurring opinion, in which ROBERTS, C. J., and ALITO and GORSUCH, JJ., joined. BREYER, J., filed dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

          OPINION

          Thomas Justice

         The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment.

         I

         A

         The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers-according to a report commissioned by the California State Assembly, App. 86-are "pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center." Watters et al., Pregnancy Resource Centers: Ensuring Access and Accuracy of Information 4 (2011). "[U]nfortunately," the author of the FACT Act stated, "there are nearly 200 licensed and unlicensed" crisis pregnancy centers in California. App. 84. These centers "aim to discourage and prevent women from seeking abortions." Id., at 85. The author of the FACT Act observed that crisis pregnancy centers "are commonly affiliated with, or run by organizations whose stated goal" is to oppose abortion-including "the National Institute of Family and Life Advocates," one of the petitioners here. Ibid. To address this perceived problem, the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services-one for licensed facilities and one for unlicensed facilities.

         1

         The first notice requirement applies to "licensed covered facilities]." Cal. Health & Safety Code Ann. §123471(a). To fall under the definition of "licensed covered facility," a clinic must be a licensed primary care or specialty clinic or qualify as an intermittent clinic under California law. Ibid, (citing §§1204, 1206(h)). A licensed covered facility also must have the "primary purpose" of "providing family planning or pregnancy-related services." §123471(a). And it must satisfy at least two of the following six requirements:

"(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women.
"(2) The facility provides, or offers counseling about, contraception or contraceptive methods.
"(3) The facility offers pregnancy testing or pregnancy diagnosis.
"(4) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling.
"(5) The facility offers abortion services.
"(6) The facility has staff or volunteers who collect health information from clients." Ibid.

         The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are "enrolled as a Medi-Cal provider" and participate in "the Family Planning, Access, Care, and Treatment Program" (Family PACT program). §123471(c). To participate in the Family PACT program, a clinic must provide "the full scope of family planning . . . services specified for the program," Cal. Welf. & Inst. Code Ann. §24005(c) (West 2018), including sterilization and emergency contraceptive pills, §§24007(a)(1), (2).

         If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site. Cal. Health & Safety Code Ann. § 123472(a)(1). The notice states that "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]." Ibid. This notice must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in. §123472(a)(2). The notice must be in English and any additional languages identified by state law. § 123472(a). In some counties, that means the notice must be spelled out in 13 different languages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi-Cal Population by County for Jan. 2015, pp. 4-5 (Sept. 2016) (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Cantonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic).

         The stated purpose of the FACT Act, including its licensed notice requirement, is to "ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them." 2015 Cal. Legis. Serv. Ch. 700, §2 (A. B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that "thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery." §l(b). Citing the "time sensitive" nature of pregnancy-related decisions, §l(c), the Legislature concluded that requiring licensed facilities to inform patients themselves would be "[t]he most effective" way to convey this information, §l(d).

         2

         The second notice requirement in the FACT Act applies to "unlicensed covered facilit[ies]." § 123471(b). To fall under the definition of "unlicensed covered facility," a facility must not be licensed by the State, not have a licensed medical provider on staff or under contract, and have the "primary purpose" of "providing pregnancy-related services." Ibid. An unlicensed covered facility also must satisfy at least two of the following four requirements:

"(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women.
"(2) The facility offers pregnancy testing or pregnancy diagnosis.
"(3) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. "(4) The facility has staff or volunteers who collect health information from clients." Ibid.

         Clinics operated by the United States and licensed primary care clinics enrolled in Medi-Cal and Family PACT are excluded. §123471(c).

         Unlicensed covered facilities must provide a government-drafted notice stating that "[t]his 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." Cal. Health & Safety Code Ann. §123472(b)(1). This notice must be provided on site and in all advertising materials. §§ 123472(b)(2), (3). Onsite, the notice must be posted "conspicuously" at the entrance of the facility and in at least one waiting area. § 123472(b)(2). It must be "at least 8.5 inches by 11 inches and written in no less than 48-point type." Ibid. In advertisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it. §123472(b)(3). Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law. §123471(b). Its stated purpose is to ensure "that pregnant women in California know when they are getting medical care from licensed professionals." Cal. Legis. Serv., §l(e).

         B

         After the Governor of California signed the FACT Act, petitioners-a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers-filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction.

         The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life Advocates v. Harris, 839 F.3d 823, 845 (2016). After concluding that petitioners' challenge to the FACT Act was ripe, [1] id., at 833, the Ninth Circuit held that petitioners could not show a likelihood of success on the merits. It concluded that the licensed notice survives the "lower level of scrutiny" that applies to regulations of "professional speech." Id., at 833-842. And it concluded that the unlicensed notice satisfies any level of scrutiny. See id., at 843-844.

         We granted certiorari to review the Ninth Circuit's decision. 583 U.S. (2017). We reverse with respect to both notice requirements. II We first address the licensed notice.[2]

         A

         The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations "target speech based on its communicative content." Reed v. Town of Gilbert, 576 U.S.__, __ (2015) (slip op., at 6). As a general matter, such laws "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Ibid. This stringent standard reflects the fundamental principle that governments have "'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Ibid, (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

         The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices "alte[r] the content of [their] speech." Riley v. National Federation of Blind of N. C, Inc.,487 U.S. 781, 795 (1988); accord, Turner Broadcasting System, Inc. v. FCC,512 U.S. 622, 642 (1994); Miami Herald Publishing Co. v. Tornillo,418 U.S. 241, 256 (1974). Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion-the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions-at ...


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