The Supreme Court should uphold a California law that requires that health care facilities inform women of state programs that provide free or low-cost reproductive health care services for those who economically qualify. In a case to be argued in March, National Institute of Family and Life Advocates v. Becerra, the Court should follow a long established legal principle: Health care professionals must provide information to patients so they can make informed choices.
California’s Reproductive FACT Act requires that licensed healthcare facilities post or distribute a notice that states, “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].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.
The law does nothing other than require this information be posted on a wall for patients to see. No one is required to say anything. Nor is there any requirement for providing contraception information or abortion referrals. The law is just to make sure that women know the services that the State of California makes available and whether the facility is unlicensed.
The preamble of the FACT Act explains that more than 700,000 California women become pregnant each year and that one-half of these pregnancies are unintended. The Legislature adopted the act because many women are not aware of the services available to them.
The Legislature was concerned that there are 200 “crisis pregnancy centers” in California that hinder the ability of California women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.”
Crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have falsely told pregnant women that their chances of getting breast cancer increase after an abortion.
In light of this history, the California statute is clearly constitutional. The First Amendment burden on the crisis pregnancy centers is minimal: they are just required to post a notice on their walls. Their employees need not utter any words. The notices are entirely factual, informing patients about the existence of state programs. The required signs do not advocate anything. Requiring unlicensed facilities to disclose this fact to patients is just another way of ensuring that patients have full and accurate information.
Healthcare professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. Whether the patient has a heart problem, wants plastic surgery or is considering how to handle an unintended pregnancy should make no difference. Accurate information should be provided to patients.
More generally, businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. Courts consistently have upheld such disclosure requirements and rejected claims that they violate the First Amendment.
Thus, as the Ninth Circuit concluded, “California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion.” Even if the Court finds that the required posting is compelled speech, the traditional interest in ensuring that patients receive accurate and adequate information is sufficient to justify this law. A contrary holding would put in jeopardy all informed consent laws in medicine and the countless laws that require posting of information in a myriad of contexts.
In a term filled with hard cases, this should be an easy one for the Supreme Court. The California law is clearly constitutional.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.