Several of the crisis-pregnancy centers pushed back. They argued that these notices would effectively require them to advocate for the very service that they exist to oppose: abortion. Many of the centers have a religious mission, and many of their employees and volunteers are drawn to their work because of their faith. California had violated First Amendment rights of these people, they said, because it compelled them to speak in violation of their consciences.
In his decision for the majority, Justice Clarence Thomas agreed that the FACT Act likely violates the First Amendment. The law “imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest,” he wrote. Because the law selectively regulated only certain kinds of facilities, Thomas said, it ran the risk of only limiting the speech of those who disagree with the state’s views on abortion.
One of the big questions in the case is whether California can regulate notices in crisis-pregnancy centers as a form of “professional speech”—a somewhat fuzzy legal category that allows states to require doctors and lawyers to disclose medical or ethical facts, for example. California argued that these crisis-pregnancy centers are licensed medical providers, and should be regulated that way; it also has an interest in making sure women aren’t confused about the nature of unlicensed facilities. Thomas, along with the rest of the conservative justices on the court, disagreed.
“The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all,” he wrote. If California wanted to make sure low-income women know about its low-cost family-planning services, he went on, this isn’t an acceptable way to do it. Instead, the state could try a public advertising campaign, Thomas suggested, or “could even post the information on public property near crisis-pregnancy centers.”
In a scathing concurring opinion, Justice Anthony Kennedy went a step further, arguing that California specifically targeted pro-life centers. “This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression,” Kennedy wrote, joined by Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch. The California legislature had noted that the FACT Act was part of its legacy of “forward thinking,” Kennedy wrote. He strongly disagreed:
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.
Pro-life advocates are celebrating the decision as a major win, both tactically and symbolically. “Today is a victory for more than just the dedicated volunteers who staff pregnancy care centers,” said Catherine Glenn Foster, the president of Americans United for Life, in a statement. “It is also a victory for the thousands of women who go to the centers seeking life-affirming care and support.”