“It would be a very different conversation if CPCs were saying exactly who they were up front,” says Nourbese Flint, who directs the reproductive-health program at Black Women for Wellness, one of the organizations that helped pass the FACT Act. “It looks like a clinic, walks like a clinic, with people in doctor gear and uniforms on. If you were really in the business of helping women, you wouldn’t need to do all that.”
By requiring disclosure signs to be posted visibly in CPC waiting rooms, the legislature argued, the state would ensure that California women have information about “their rights and available services at the sites where they obtain care.” Ultimately, the case hinges on the theoretical women who may wander into a CPC unaware of what it does and find themselves waylaid en route to an abortion. “For a woman who is pregnant, and is interested in obtaining abortion care, having an experience where she may feel judged or shamed for considering abortion may have psychological and stigmatizing consequences,”says Katrina Kimport, an associate professor at the University of California, San Francisco, who studies CPCs. “But we don’t have evidence that it actually changes her mind.”
Lawyers for the CPCs claim that allegations about CPCs misleading women are false, and that the the California law “has an unmistakable advocacy component.” The required disclosures encourage women to get in touch with local agencies for more information about California’s subsidized abortion program, violating the core belief that motivates CPCs, they say: Abortion is wrong and should be prevented at all costs. “If telling someone how to get a free abortion does not convey a particular viewpoint on abortion, it is difficult to think of what does,” the CPCs argued in their petition to the Supreme Court.
Now, the justices will consider their argument on free-speech grounds: Does the First Amendment prevent California from forcing CPCs to post information about abortions and disclose their licensure status in print and digital advertising? One way to think about this question, says Robert Post, a Yale law professor, is to identify whose rights are being protected. When the state regulates the labels that go on food products or what a lawyer must tell a client about her rights, it is primarily concerned with the rights of the audience, or the person who is receiving the information. When the state protects protesters with signs or people making a speech in front of city hall, however, the speaker is the main concern. The two parties in the NIFLA case have literally opposite perspectives in the case: California is concerned about the rights of the women who walk into CPCs—the audience—while the pro-life centers are concerned with their own rights as speakers.
It’s not clear how the justices will see this question, however. “The court has been—let’s put it this way—careless in the way in which it describes the situation in which a state can and cannot compel speech,” Post says. “If we take the plaintiffs at their word, they’re saying, this is speech about my religion, this is relevant to my religious beliefs. … From their point of view … it’s speech about what people should think about abortion.” But California’s abortion notices aren’t necessarily political simply because they mention abortion, he argued. “Suppose that California requires you to put up a notice in your store that cigarettes cause cancer,” Post says. “That’s a matter of intense political controversy. But it doesn’t render it political speech.”