SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1140
_________________
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, dba NIFLA, et al., PETITIONERS
v. XAVIER
BECERRA, ATTORNEY GENERAL OF CALIFORNIA, et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 26, 2018]
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
The petitioners ask us to consider whether two
sections of a California statute violate the First Amendment. The
first section requires licensed medical facilities (that provide
women with assistance involving pregnancy or family planning) to
tell those women where they might obtain help, including financial
help, with comprehensive family planning services, prenatal care,
and abortion. The second requires
unlicensed facilities
offering somewhat similar services to make clear that they are
unlicensed. In my view both statutory sections are likely
constitutional, and I dissent from the Court’s contrary
conclusions.
I
The first statutory section applies to
licensed medical facilities dealing with pregnancy and which also
provide specific services such as prenatal care, contraception
counseling, pregnancy diagnosis, or abortion-related services. Cal.
Health & Safety Code Ann. §§123471(a), 1204, 1206(h) (West
2018) (covering “primary care clinics” that serve low-income
women); Cal. Code Regs., tit. 22, §75026 (2018) (“primary care
clinics” are medical facilities that provide “services for the care
and treatment of patients for whom the clinic accepts
responsibility” with the “direction or supervision” of each
“service” undertaken “by a person licensed, certified or registered
to provide such service”).
The statute requires these facilities to post a
notice in their waiting rooms telling their patients:
“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].” §123472(a)(1).
The petitioners here, a group of covered medical
facilities that object to abortion for religious reasons, brought
this case seeking an injunction against enforcement of the
California Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act on the ground that it violates the First
Amendment on its face. The District Court denied a preliminary
injunction, and the Court of Appeals affirmed. The majority now
reverses the Court of Appeals on the ground that the petitioners
have shown a likelihood of success on the merits,
i.e., that
the statute likely violates the petitioners’ free speech rights and
is unconstitutional on its face.
A
Before turning to the specific law before us,
I focus upon the general interpretation of the First Amendment that
the majority says it applies. It applies heightened scru- tiny to
the Act because the Act, in its view, is “content based.”
Ante, at 6–7. “By compelling individuals to speak a
particular message,” it adds, “such notices ‘alte[r] the content of
[their] speech.’ ”
Ante, at 7 (quoting
Riley v.
National Federation of Blind of N. C., Inc., 487 U. S.
781, 795 (1988)) (alteration in original). “As a general matter,”
the majority concludes, such laws are “presumptively
unconstitutional” and are subject to “stringent” review.
Ante, at 6–7.
The majority recognizes exceptions to this
general rule: It excepts laws that “require professionals to
disclose factual, noncontroversial information in their ‘commercial
speech,’ ”
provided that the disclosure “relates to the
services that [the regulated entities] provide.”
Ante, at
8–9. It also excepts laws that “regulate professional conduct”
and only “incidentally burden speech.”
Ante, at
9–10.
This constitutional approach threatens to create
serious problems. Because much, perhaps most, human behavior takes
place through speech and because much, perhaps most, law regulates
that speech in terms of its content, the majority’s approach at the
least threatens considerable litigation over the constitutional
validity of much, perhaps most, government regulation. Virtually
every disclosure law could be considered “content based,” for
virtually every disclosure law requires individuals “to speak a
particular message.” See
Reed v.
Town of Gilbert, 576
U. S. ___, ___ (2015) (Breyer, J., concurring in judgment)
(slip op., at 3) (listing regulations that inevitably involve
content discrimination, ranging from securities disclosures to
signs at petting zoos). Thus, the majority’s view, if taken
literally, could radically change prior law, perhaps placing much
securities law or consumer protection law at constitutional risk,
depending on how broadly its exceptions are interpreted.
Many ordinary disclosure laws would fall outside
the majority’s exceptions for disclosures related to the
professional’s own services or conduct. These include numerous
commonly found disclosure requirements relating to the medical
profession. See,
e.g., Cal. Veh. Code Ann. §27363.5 (West
2014) (requiring hospitals to tell parents about child seat belts);
Cal. Health & Safety Code Ann. §123222.2 (requiring hospitals
to ask incoming patients if they would like the facility to give
their family information about patients’ rights and
responsibilities); N. C. Gen. Stat. Ann. §131E–79.2 (2017)
(requiring hospitals to tell parents of newborns about pertussis
disease and the available vaccine). These also include numerous
disclosure requirements found in other areas. See,
e.g.,
N. Y. C. Rules & Regs., tit. 1, §27–01 (2018)
(requiring signs by elevators showing stair locations); San
Francisco Dept. of Health, Director’s Rules & Regs., Garbage
and Refuse (July 8, 2010) (requiring property owners to inform
tenants about garbage disposal procedures).
The majority, at the end of Part II of its
opinion, perhaps recognizing this problem, adds a general
disclaimer. It says that it does not “question the legality of
health and safety warnings long considered permissible, or purely
factual and uncontroversial disclosures about commercial products.”
Ante, at 16–17. But this generally phrased disclaimer would
seem more likely to invite litigation than to provide needed
limitation and clarification. The major- ity, for example, does not
explain why the Act here, which is justified in part by health and
safety considerations, does not fall within its “health” category.
Ante, at 14; see also
Planned Parenthood of Southeastern
Pa. v.
Casey, 505 U. S. 833, 882–884 (1992) (joint
opinion of O’Connor, Kennedy, and Souter, JJ.) (reasoning that
disclosures related to fetal development and childbirth are related
to the health of a woman seeking an abortion). Nor does the
majority opinion offer any reasoned basis that might help apply its
disclaimer for distinguishing lawful from unlawful disclosures. In
the absence of a reasoned explanation of the disclaimer’s meaning
and rationale, the disclaimer is unlikely to withdraw the
invitation to litigation that the majority’s general broad
“content-based” test issues. That test invites courts around the
Nation to apply an unpredictable First Amendment to ordinary social
and economic regulation, striking down disclosure laws that judges
may disfavor, while upholding others, all without grounding their
decisions in reasoned principle.
Notably, the majority says nothing about
limiting its language to the kind of instance where the Court has
traditionally found the First Amendment wary of content-based laws,
namely, in cases of viewpoint discrimination. “Content-based laws
merit this protection because they present, albeit sometimes in a
subtler form, the same dangers as laws that regulate speech based
on viewpoint.”
Reed, 576 U. S., at ___ (Alito, J.,
concurring) (slip op., at 1). Accordingly, “[l]imiting speech based
on its ‘topic’ or ‘subject’ ” can favor “those who do not want
to disturb the status quo.”
Ibid. But the mine run of
disclosure requirements do nothing of that sort. They simply alert
the public about child seat belt laws, the location of stairways,
and the process to have their garbage collected, among other
things.
Precedent does not require a test such as the
majority’s. Rather, in saying the Act is not a longstanding health
and safety law, the Court substitutes its own approach—without a
defining standard—for an approach that was reasonably clear.
Historically, the Court has been wary of claims that regulation of
business activity, particularly health-related activity, violates
the Constitution. Ever since this Court departed from the approach
it set forth in
Lochner v.
New York, 198 U. S.
45 (1905), ordinary economic and social legislation has been
thought to raise little constitutional concern. As Justice Brandeis
wrote, typically this Court’s function in such cases “is only to
determine the reasonableness of the Legislature’s belief in the
existence of evils and in the effectiveness of the remedy
provided.”
New State Ice Co. v.
Liebmann, 285
U. S. 262, 286–287 (1932) (dissenting opinion); see
Williamson v.
Lee Optical of Okla., Inc., 348
U. S. 483, 486–488 (1955) (adopting the approach of Justice
Brandeis).
The Court has taken this same respectful
approach to economic and social legislation when a First Amendment
claim like the claim present here is at issue. See,
e.g.,
Zauderer v.
Office of Disciplinary Counsel of Supreme Court
of Ohio, 471 U. S. 626, 651 (1985) (upholding reasonable
disclosure requirements for attorneys);
Milavetz, Gallop &
Milavetz, P. A. v.
United States, 559
U. S. 229, 252–253 (2010) (same); cf.
Central Hudson Gas
& Elec. Corp. v.
Public Serv. Comm’n of N. Y.,
447 U. S. 557, 563–564 (1980) (applying intermediate scrutiny
to other restrictions on commercial speech);
In re
R. M. J., 455 U. S. 191, 203 (1982) (no
First Amendment protection for misleading or deceptive commercial
speech). But see
Sorrell v.
IMS Health Inc., 564
U. S. 552 (2011) (striking down regulation of pharmaceutical
drug-related information).
Even during the
Lochner era, when this
Court struck down numerous economic regulations concerning
industry, this Court was careful to defer to state legislative
judgments concerning the medical profession. The Court took the
view that a State may condition the practice of medicine on any
number of requirements, and physicians, in exchange for following
those reasonable requirements, could receive a license to practice
medicine from the State. Medical professionals do not, generally
speaking, have a right to use the Constitution as a weapon allowing
them rigorously to control the content of those reasonable
conditions. See,
e.g.,
Dent v.
West Virginia,
129 U. S. 114 (1889) (upholding medical licensing
requirements);
Hawker v.
New York, 170 U. S. 189
(1898) (same);
Collins v.
Texas, 223 U. S. 288,
297–298 (1912) (recognizing the “right of the State to adopt a
policy even upon medical matters concerning which there is
difference of opinion and dispute”);
Lambert v.
Yellowley, 272 U. S. 581, 596 (1926) (“[T]here is no
right to practice medicine which is not subordinate to the police
power of the States”);
Graves v.
Minnesota, 272
U. S. 425, 429 (1926) (statutes “regulating the practice of
medicine” involve “very different considerations” from those
applicable to “trades [such as] locomotive engineers and barbers”);
Semler v.
Oregon Bd. of Dental Examiners, 294
U. S. 608, 612 (1935) (upholding state regulation of dentistry
given the “vital interest of public health”). In the name of the
First Amendment, the majority today treads into territory where the
pre-New Deal, as well as the post-New Deal, Court refused to
go.
The Court, in justification, refers to widely
accepted First Amendment goals, such as the need to protect the
Nation from laws that “ ‘suppress unpopular ideas or
information’ ” or inhibit the “ ‘marketplace of ideas in
which truth will ultimately prevail.’ ”
Ante, at 12–13;
see
New York Times Co. v.
Sullivan, 376 U. S.
254, 269 (1964). The concurrence highlights similar First Amendment
interests.
Ante, at 2. I, too, value this role that the
First Amendment plays—in an appropriate case. But here, the
majority enunciates a general test that reaches far beyond the area
where this Court has examined laws closely in the service of those
goals. And, in suggesting that heightened scrutiny applies to much
economic and social legislation, the majority pays those First
Amendment goals a serious disservice through dilution. Using the
First Amendment to strike down economic and social laws that
legislatures long would have thought themselves free to enact will,
for the American public, obscure, not clarify, the true value of
protecting freedom of speech.
B
Still, what about this specific case? The
disclosure at issue here concerns speech related to abortion. It
involves health, differing moral values, and differing points of
view. Thus, rather than set forth broad, new, First Amendment
principles, I believe that we should focus more directly upon
precedent more closely related to the case at hand. This Court has
more than once considered disclosure laws relating to reproductive
health. Though those rules or holdings have changed over time, they
should govern our disposition of this case.
I begin with
Akron v.
Akron Center for
Reproductive Health, Inc., 462 U. S. 416 (1983). In that
case the Court considered a city ordinance requiring a doctor to
tell a woman contemplating an abortion about the
“status of her pregnancy, the development
of her fetus, the date of possible viability, the physical and
emotional complications that may result from an abortion, and the
availability of agencies to provide her with assistance and
information with respect to birth control, adoption, and
childbirth[, and] . . . ‘the particular risks associated
with her own pregnancy and the abortion technique to be
employed.’ ”
Id., at 442 (quoting Akron Codified
Ordinances §1870.06(C) (1978)).
The ordinance further required a doctor to tell
such a woman that “ ‘the unborn child is a human life from the
moment of conception.’ ”
Akron,
supra, at 444
(quoting Akron Codified Ordinances §1870.06(B)(3)).
The plaintiffs claimed that this ordinance
violated a woman’s constitutional right to obtain an abortion. And
this Court agreed. The Court stated that laws providing for a
woman’s “informed consent” to an abortion were normally valid, for
they helped to protect a woman’s health.
Akron, 462
U. S., at 443–444. Still, the Court held that the law at issue
went “beyond permissible limits” because “much of the information
required [was] designed not to inform the woman’s consent but
rather to persuade her to withhold it altogether.”
Id., at
444. In the Court’s view, the city had placed unreasonable
“ ‘obstacles in the path of the doctor upon whom [the woman
is] entitled to rely for advice in connection with her
decision.’ ”
Id., at 445 (quoting
Whalen v.
Roe, 429 U. S. 589, 604, n. 33 (1977)) (alteration
in original).
Several years later, in
Thornburgh v.
American College of Obstetricians and Gynecologists, 476
U. S. 747 (1986), the Court considered a Pennsylvania statute
that “prescribe[d] in detail the method for securing ‘informed
consent’ ” to an abortion.
Id., at 760. The statute
required the doctor to tell the patient about health risks
associated with abortion, possibly available benefits for prenatal
care, childbirth, and neonatal care, and agencies offering
alternatives to abortion.
Id., at 760–761. In particular it
required the doctor to give the patient printed materials that,
among other things, said:
“ ‘ “There are many public and
private agencies willing and able to help you to carry your child
to term, and to assist you and your child after your child is born,
whether you choose to keep your child or place her or him for
adoption. The Commonwealth of Pennsylvania strongly urges you to
contact them before making a final decision about abortion. The law
requires that your physician or his agent give you the opportunity
to call agencies like these before you undergo an
abortion.” ’ ”
Id., at 761 (quoting 18 Pa. Cons.
Stat. §3208(a)(1) (1982)).
The Court, as in
Akron, held that the
statute’s information requirements violated the Constitution. They
were designed “ ‘not to inform the woman’s consent but rather
to persuade her to withhold it altogether.’ ”
Thornburgh,
supra, at 762 (quoting
Akron,
supra, at 444). In the Court’s view, insistence on telling
the patient about the availability of “medical assistance benefits”
if she decided against an abortion was a “poorly disguised
elemen[t] of discouragement for the abortion decision,” and the law
was the “antithesis of informed consent.”
Thornburgh, supra,
at 763–764.
These cases, however, whatever support they may
have given to the majority’s view, are no longer good law. In
Planned Parenthood of Southeastern Pa. v.
Casey, 505
U. S. 833 (1992), the Court again considered a state law that
required doctors to provide information to a woman deciding whether
to proceed with an abortion. That law required the doctor to tell
the woman about the nature of the abortion procedure, the health
risks of abortion and of childbirth, the “ ‘probable
gestational age of the unborn child,’ ” and the availability
of printed materials describing the fetus, medical assistance for
childbirth, potential child support, and the agencies that would
provide adoption services (or other alternatives to abortion).
Id., at 881 (joint opinion of O’Connor, Kennedy, and Souter,
JJ.) (quoting 18 Pa. Cons. Stat. §3205 (1990)).
This time a joint opinion of the Court, in
judging whether the State could impose these informational
requirements, asked whether doing so imposed an “undue burden” upon
women seeking an abortion.
Casey, 505 U. S., at
882–883. It held that it did not.
Ibid. Hence the statute
was constitutional.
Id., at 874. The joint opinion stated
that the statutory requirements amounted to “reasonable measure[s]
to ensure an informed choice, one which might cause the woman to
choose childbirth over abortion.”
Id., at 883. And, it
“overruled” portions of the two cases,
Akron and
Thornburgh, that might indicate the contrary.
Id., at
882.
In respect to overruling the earlier cases, it
wrote:
“To the extent
Akron I and
Thornburgh find a constitutional violation when the
government requires, as it does here, the giving of truthful,
nonmisleading information about the nature of the procedure, the
attendant health risks and those of childbirth, and the ‘probable
gestational age’ of the fetus, those cases go too far, are
inconsistent with
Roe’s acknowledgment of an important
interest in potential life, and are overruled.”
Ibid.
The joint opinion specifically discussed the
First Amendment, the constitutional provision now directly before
us. It concluded that the statute did not violate the First
Amendment. It wrote:
“All that is left of petitioners’ argument
is an asserted First Amendment right of a physician not to provide
information about the risks of abortion, and childbirth, in a
manner mandated by the State. To be sure, the physician’s First
Amendment rights not to speak are implicated, see
Wooley v.
Maynard, 430 U. S. 705 (1977), but only as part of the
practice of medicine, subject to reasonable licensing and
regulation by the State, cf.
Whalen v.
Roe, 429
U. S. 589, 603 (1977). We see no constitutional infirmity in
the requirement that the physician provide the information mandated
by the State here.”
Casey, 505 U. S., at 884.
Thus, the Court considered the State’s statutory
requirements, including the requirement that the doctor must inform
his patient about where she could learn how to have the newborn
child adopted (if carried to term) and how she could find related
financial assistance.
Id., at 881. To repeat the point, the
Court then held that the State’s requirements did
not
violate either the Constitution’s protection of free speech or its
protection of a woman’s right to choose to have an abortion.
C
Taking
Casey as controlling, the law’s
demand for evenhandedness requires a different answer than that
perhaps suggested by
Akron and
Thornburgh. If a State
can lawfully require a doctor to tell a woman seeking an abortion
about adoption services, why should it not be able, as here, to
require a medical counselor to tell a woman seeking prenatal care
or other reproductive healthcare about childbirth and abortion
services? As the question suggests, there is no convincing reason
to distinguish between information about adoption and information
about abortion in this context. After all, the rule of law embodies
evenhandedness, and “what is sauce for the goose is normally sauce
for the gander.”
Heffernan v.
City of Paterson, 578
U. S. ___, ___ (2016) (slip op., at 6).
1
The majority tries to distinguish
Casey
as concerning a regulation of professional conduct that only
incidentally burdened speech.
Ante, at 10–11.
Casey,
in its view, applies only when obtaining “informed consent” to a
medical procedure is directly at issue.
This distinction, however, lacks moral,
practical, and legal force. The individuals at issue here are all
medical personnel engaging in activities that directly affect a
woman’s health—not significantly different from the doctors at
issue in
Casey. After all, the statute here applies only to
“primary care clinics,” which provide “services for the care and
treatment of patients for whom the clinic accepts responsibility.”
Cal. Code Regs., tit. 22, §75026(a); see Cal. Health & Safety
Code Ann. §§123471(a), 1204, 1206(h). And the persons responsible
for patients at those clinics are all persons “licensed, certified
or registered to provide” pregnancy-related medical services. Cal.
Code Regs., tit. 22, §75026(c). The petitioners have not, either
here or in the District Court, provided any example of a covered
clinic that is not operated by licensed doctors or what the statute
specifies are equivalent professionals. See,
e.g., App. to
Pet. for Cert. 92a (identifying two obstetrician/gynecologists, a
radiologist, an anesthesiologist, a certified nurse midwife, a
nurse practitioner, 10 nurses, and two registered diagnostic
medical sonographers on staff).
The Act requires these medical professionals to
disclose information about the possibility of abortion (including
potential financial help) that is as likely helpful to granting
“informed consent” as is information about the possibility of
adoption and childbirth (including potential financial help). That
is why I find it impossible to drive any meaningful legal wedge
between the law, as interpreted in
Casey, and the law as it
should be applied in this case. If the law in
Casey
regulated speech “only ‘as part of the
practice of
medicine,’ ”
ante, at 11 (quoting
Casey,
supra, at 884), so too here.
The majority contends that the disclosure here
is unrelated to a “medical procedure,” unlike that in
Casey,
and so the State has no reason to inform a woman about alternatives
to childbirth (or, presumably, the health risks of childbirth).
Ante, at 11. Really? No one doubts that choosing an abortion
is a medical procedure that involves certain health risks. See
Whole Woman’s Health v.
Hellerstedt, 579 U. S.
___, ___ (2016) (slip op., at 30) (identifying the mortality rate
in Texas as 1 in 120,000 to 144,000 abortions). But the same is
true of carrying a child to term and giving birth. That is why
prenatal care often involves testing for anemia, infections,
measles, chicken pox, genetic disorders, diabetes, pneumonia,
urinary tract infections, preeclampsia, and hosts of other medical
conditions. Childbirth itself, directly or through pain management,
risks harms of various kinds, some connected with caesarean or
surgery-related deliveries, some related to more ordinary methods
of delivery. Indeed, nationwide “childbirth is 14 times more likely
than abortion to result in” the woman’s death.
Ibid. Health
considerations do not favor disclosure of alternatives and risks
associated with the latter but not those associated with the
former.
In any case, informed consent principles apply
more broadly than only to discrete “medical procedures.”
Prescription drug labels warn patients of risks even though taking
prescription drugs may not be considered a “medical procedure.” 21
CFR §201.56 (2017). In California, clinics that screen for breast
cancer must post a sign in their offices notifying patients that,
if they are diagnosed with breast cancer, their doctor must provide
“a written summary of alternative efficacious methods of
treatment,” a notification that does not relate to the
screening procedure at issue. Cal. Health & Safety Code
Ann. §109277. If even these disclosures fall outside the majority’s
cramped view of
Casey and informed consent, it undoubtedly
would invalidate the many other disclosures that are routine in the
medical context as well.
Supra, at 3–4.
The majority also finds it “[t]ellin[g]” that
general practice clinics—
i.e., paid clinics—are not required
to provide the licensed notice.
Ante, at 11. But the
lack-of-information problem that the statute seeks to ameliorate is
a problem that the State explains is commonly found among
low-income women. See Brief for State Respondents 5–6. That those
with low income might lack the time to become fully informed and
that this circumstance might prove disproportionately correlated
with income is not intuitively surprising. Nor is it surprising
that those with low income, whatever they choose in respect to
pregnancy, might find information about financial assistance
particularly useful. There is “nothing inherently suspect” about
this distinction,
McCullen v.
Coakley, 573 U. S.
___, ___ (2014) (slip op., at 15), which is not “based on the
content of [the advocacy] each group offers,”
Turner
Broadcasting System, Inc. v.
FCC, 512 U. S. 622,
658–659 (1994), but upon the patients the group generally serves
and the needs of that population.
2
Separately, finding no First Amendment
infirmity in the licensed notice is consistent with earlier Court
rulings. For instance, in
Zauderer we upheld a requirement
that attorneys disclose in their advertisements that clients might
be liable for significant litigation costs even if their lawsuits
were unsuccessful. 471 U. S., at 650. We refused to apply
heightened scrutiny, instead asking whether the disclosure
requirements were “reasonably related to the State’s interest in
preventing deception of consumers.”
Id., at 651.
The majority concludes that
Zauderer does
not apply because the disclosure “in no way relates to the services
that licensed clinics provide.”
Ante, at 9. But information
about state resources for family planning, prenatal care, and
abortion
is related to the services that licensed clinics
provide. These clinics provide counseling about contraception
(which is a family-planning service), ultrasounds or pregnancy
testing (which is prenatal care), or abortion. Cal. Health &
Safety Code Ann. §123471(a). The required disclosure is related to
the clinic’s services because it provides information about state
resources for the very same services. A patient who knows that she
can receive free prenatal care from the State may well prefer to
forgo the prenatal care offered at one of the clinics here. And for
those interested in family planning and abortion services,
information about such alternatives is relevant information to
patients offered prenatal care, just as
Casey considered
information about adoption to be relevant to the abortion
decision.
Regardless,
Zauderer is not so limited.
Zauderer turned on the “material differences between
disclosure requirements and outright prohibitions on speech.” 471
U. S., at 650. A disclosure requirement does not prevent
speakers “from conveying information to the public,” but “only
require[s] them to provide somewhat more information than they
might otherwise be inclined to present.”
Ibid. Where a
State’s requirement to speak “purely factual and uncontroversial
information” does not attempt “to ‘prescribe what shall be orthodox
in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith
therein,’ ” it does not warrant heightened scrutiny.
Id., at 651 (quoting
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642 (1943)).
In
Zauderer, the Court emphasized the
reason that the First Amendment protects commercial speech at all:
“the value to consumers of the information such speech provides.”
471 U. S., at 651. For that reason, a professional’s
“constitutionally protected interest in
not providing any
particular factual information in his advertising is minimal.”
Ibid. But this rationale is not in any way tied to
advertisements about a professional’s own services. For instance,
it applies equally to a law that requires doctors, when discharging
a child under eight years of age, to “provide to and discuss with
the parents . . . information on the current law
requiring child passenger restraint systems, safety belts, and the
transportation of children in rear seats.” Cal. Veh. Code Ann.
§27363.5(a). Even though child seat belt laws do not directly
relate to the doctor’s own services, telling parents about such
laws does nothing to undermine the flow of factual information.
Whether the context is advertising the professional’s own services
or other commercial speech, a doctor’s First Amendment interest in
not providing factual information to patients is the same: minimal,
because his professional speech is protected precisely because of
its informational value to patients. There is no reason to subject
such laws to heightened scrutiny.
Accordingly, the majority’s reliance on cases
that prohibit rather than require speech is misplaced.
Ante,
at 12–14. I agree that “ ‘in the fields of medicine and public
heath, . . . information can save lives,’ ” but the
licensed disclosure
serves that informational interest by
requiring clinics to notify patients of the availability of state
resources for family planning services, prenatal care, and
abortion, which—unlike the majority’s examples of normative
statements,
ante, at 13—is truthful and nonmisleading
information. Abortion is a controversial topic and a source of
normative debate, but the availability of state resources is not a
normative statement or a fact of debat- able truth. The disclosure
includes information about resources available should a woman seek
to continue her pregnancy or terminate it, and it expresses no
official preference for one choice over the other. Similarly, the
majority highlights an interest that often underlies our decisions
in respect to speech prohibitions—the marketplace of ideas. But
that marketplace is fostered, not hindered, by providing
information to patients to enable them to make fully informed
medical decisions in respect to their pregnancies.
Of course, one might take the majority’s
decision to mean that speech about abortion is special, that it
involves in this case not only professional medical matters, but
also views based on deeply held religious and moral beliefs about
the nature of the practice. To that extent, arguably, the speech
here is different from that at issue in
Zauderer. But
assuming that is so, the law’s insistence upon treating like cases
alike should lead us to reject the petitioners’ arguments that I
have discussed. This insistence, the need for evenhandedness,
should prove particularly weighty in a case involving abortion
rights. That is because Americans hold strong, and differing, views
about the matter. Some Americans believe that abortion involves the
death of a live and innocent human being. Others believe that the
ability to choose an abortion is “central to personal dignity and
autonomy,”
Casey, 505 U. S., at 851, and note that the
failure to allow women to choose an abortion involves the deaths of
innocent women. We have previously noted that we cannot try to
adjudicate who is right and who is wrong in this moral debate. But
we can do our best to interpret American constitutional law so that
it applies fairly within a Nation whose citizens strongly hold
these different points of view. That is one reason why it is
particularly important to interpret the First Amendment so that it
applies evenhandedly as between those who disagree so strongly. For
this reason too a Constitution that allows States to insist that
medical providers tell women about the possibility of adoption
should also allow States similarly to insist that medical providers
tell women about the possibility of abortion.
D
It is particularly unfortunate that the
majority, through application of so broad and obscure a standard,
see
supra, at 2–7, declines to reach remaining arguments
that the Act discriminates on the basis of viewpoint.
Ante,
at 6, n. 2. The petitioners argue that it unconstitutionally
discriminates on the basis of viewpoint because it primar- ily
covers facilities with supporters, organizers, and employees who
are likely to hold strong pro-life views. They contend that the
statute does not cover facilities likely to hold neutral or
pro-choice views, because it exempts facilities that enroll
patients in publicly funded programs that include abortion. In
doing so, they say, the statute unnecessarily imposes a
disproportionate burden upon facilities with pro-life views, the
very facilities most likely to find the statute’s references to
abortion morally abhorrent. Brief for Petitioners 31–37.
The problem with this argument lies in the
record. Numerous
amicus briefs advance the argument. See,
e.g., Brief for Scharpen Foundation, Inc., et al. as
Amici Curiae 6–10; Brief for American Center for Law &
Justice et al. as
Amici Curiae 7–13. Some add that women who
use facilities that are exempt from the statute’s requirements
(because they enroll patients in two California state-run medical
programs that provide abortions) may still need the information
provided by the disclosure, Brief for CATO Institute as
Amicus
Curiae 15, a point the majority adopts in concluding that the
Act is underinclusive,
ante, at 15–16. But the key question
is whether these exempt clinics are significantly more likely than
are the pro-life clinics to tell or to have told their pregnant
patients about the existence of these programs—in the absence of
any statutory compulsion. If so, it may make sense—in terms of the
statute’s informational objective—to exempt them, namely if there
is no need to cover them. See FACT Act, §1(d) (suggesting in
general terms that this is so). But, if there are not good reasons
to exempt these clinics from coverage,
i.e., if, for
example, they too frequently do not tell their patients about the
availability of abortion services, the petitioners’ claim of
viewpoint discrimination becomes much stronger.
The petitioners, however, did not develop this
point in the record below. They simply stated in their complaint
that the Act exempts “facilities which provide abortion services,
freeing them from the Act’s disclosure requirements, while leaving
pro-life facilities subject to them.” App. to Pet. for Cert. 104a.
And in the District Court they relied solely on the allegations of
their complaint, provided no supporting declarations, and contended
that discovery was unnecessary.
Id., at 47a, 50a, 68a. The
District Court concluded that the reason for the Act’s exemptions
was that those clinics “provide the entire spectrum of services
required of the notice,” and that absent discovery, “there is no
evidence to suggest the Act burdens only” pro-life conduct.
Id., at 68a. Similarly, the petitioners pressed the claim in
the Court of Appeals.
Id., at 20a–22a. But they did not
supplement the record. Consequently, that court reached the same
conclusion. Given the absence of evidence in the record before the
lower courts, the “viewpoint discrimination” claim could not
justify the issuance of a preliminary injunction.
II
The second statutory provision covers
pregnancy-related facilities that provide women with certain
medical-type services (such as obstetric ultrasounds or sonograms,
pregnancy diagnosis, counseling about pregnancy options, or
prenatal care), are not licensed as medical facilities by the
State, and do not have a licensed medical provider on site. Cal.
Health & Safety Code Ann. §123471(b)(1). The statute says that
such a facility must disclose that it is not “licensed as a medical
facility.” §123472(b). And it must make this disclosure in a posted
notice and in advertising.
Ibid.
The majority does not question that the State’s
interest (ensuring that “pregnant women in California know when
they are getting medical care from licensed professionals”) is the
type of informational interest that
Zauderer encompasses.
Ante, at 5, 17. Nor could it. In
Riley, 487
U. S. 781, the Court noted that the First Amendment would
permit a requirement for “professional fundraisers to disclose
their professional status”—nearly identical to the unlicensed
disclosure at issue here.
Id., at 799 and n. 11; see
also
id., at 804 (Scalia, J., concurring in part and
concurring in judgment) (noting that this requirement was not aimed
at combating deception). Such informational interests have long
justified regulations in the medical context. See,
e.g.,
Dent, 129 U. S., at 122 (upholding medical licensing
requirements that “tend to secure [a State’s citizens] against the
consequences of ignorance and incapacity, as well as of deception
and fraud”);
Semler, 294 U. S., at 611 (upholding state
dentistry regulation that “afford[ed] protection against ignorance,
incapacity and imposition”).
Nevertheless, the majority concludes that the
State’s interest is “purely hypothetical” because unlicensed
clinics provide innocuous services that do not require a medical
license.
Ante, at 17–18. To do so, it applies a searching
standard of review based on our precedents that deal with speech
restrictions, not
disclosures.
Ante, at 17
(citing,
e.g., In re R. M. J.,
455 U. S., at 203;
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S.
748, 772, n. 24 (1976);
Bates v.
State Bar of Ariz.,
433 U. S. 350, 384 (1977); and
Zauderer, 471
U. S., at 649 (portion of opinion considering speech
restrictions, not disclosures)). This approach is incompatible with
Zauderer. See
Zauderer,
supra, at 651
(upholding attorney disclosure requirements where “reasonably
related to the State’s interest”);
Milavetz, 559 U. S.,
at 250–253 (same).
There is no basis for finding the State’s
interest “hypothetical.” The legislature heard that
information-related delays in qualified healthcare negatively
affect women seeking to terminate their pregnancies as well as
women carrying their pregnancies to term, with delays in qualified
prenatal care causing life-long health problems for infants.
Reproductive FACT Act: Hearing on Assembly B. 775 before the Senate
Health Committee, 2015 Cal. Leg. Sess. Even without such testimony,
it is “self-evident” that patients might think they are receiving
qualified medical care when they enter facilities that collect
health information, perform obstetric ultrasounds or sonograms,
diagnose pregnancy, and provide counseling about pregnancy options
or other prenatal care.
Milavetz,
supra, at 251. The
State’s conclusion to that effect is certainly reasonable.
The majority also suggests that the Act applies
too broadly, namely, to all unlicensed facilities “no matter what
the facilities say on site or in their advertisements.”
Ante, at 18. But the Court has long held that a law is not
unreasonable merely because it is overinclusive. For instance, in
Semler the Court upheld as reasonable a state law that
prohibited licensed dentists from advertising that their skills
were superior to those of other dentists. 294 U. S., at 609. A
dentist complained that he was, in fact, better than other
dentists.
Id., at 610. Yet the Court held that “[i]n framing
its policy, the legislature was not bound to provide for
determinations of the relative proficiency of particular
practitioners.”
Id., at 612. To the contrary, “[t]he
legislature was entitled to consider the general effects of the
practices which it described, and if these effects were injurious
in facilitating unwarranted and misleading claims, to counteract
them by a general rule, even though in particular instances there
might be no actual deception or misstatement.”
Id., at
613.
Relatedly, the majority suggests that the Act is
suspect because it covers some speakers but not others.
Ante, at 18–19. I agree that a law’s exemptions can reveal
viewpoint discrimination (although the majority does not reach this
point). “ ‘[A]n exemption from an otherwise permissible
regulation of speech may represent a governmental “attempt to give
one side of a debatable public question an advantage in expressing
its views to the people.” ’ ”
McCullen, 573
U. S., at ___ (slip op., at 15) (quoting
City of Ladue
v.
Gilleo, 512 U. S. 43, 51 (1994)). Such speaker-based
laws warrant heightened scrutiny “when they reflect the
Government’s preference for the substance of what the favored
speakers have to say (or aversion to what the disfavored speakers
have to say).”
Turner Broadcasting System, Inc., 512
U. S., at 658. Accordingly, where a law’s exemptions
“facilitate speech on only one side of the abortion debate,” there
is a “clear form of viewpoint discrimination.”
McCullen,
supra, at ___ (slip op., at 18).
There is no cause for such concern here. The Act
does not, on its face, distinguish between facilities that favor
pro-life and those that favor pro-choice points of view. Nor is
there any convincing evidence before us or in the courts below that
discrimination was the purpose or the effect of the statute.
Notably, California does not single out pregnancy-related
facilities for this type of disclosure require- ment. See,
e.g., Cal. Bus. & Prof. Code Ann. §2053.6 (West 2012)
(unlicensed providers of alternative health services must disclose
that “he or she is not a licensed physician” and “the services to
be provided are not licensed by the state”). And it is unremarkable
that the State excluded the provision of family planning and
contraceptive services as triggering conditions.
Ante, at
18–19. After all, the State was seeking to ensure that “pregnant
women in California know when they are getting medical care from
licensed professionals,” and pregnant women generally do not need
contraceptive services.
Finally, the majority concludes that the Act is
overly burdensome.
Ante, at 19. I agree that “unduly
burdensome disclosure requirements might offend the First
Amendment.”
Zauderer, 471 U. S., at 651. But these and
similar claims are claims that the statute could be applied
unconstitutionally, not that it is unconstitutional on its face.
Compare
New York State Club Assn., Inc. v.
City of New
York, 487 U. S. 1, 14 (1988) (a facial overbreadth
challenge must show “from actual fact” that a “substantial number
of instances exist in which the Law cannot be applied
constitutionally”), with
Chicago v.
Morales, 527
U. S. 41, 74 (1999) (Scalia, J., dissenting) (an as-applied
challenge asks whether “the statute is unconstitutional as applied
to
this party, in the circumstances of
this case”).
And it will be open to the petitioners to make these claims if and
when the State threatens to enforce the statute in this way. But
facial relief is inappropriate here, where the petitioners “fail”
even “to describe [these] instances of arguable overbreadth of the
contested law,”
Washington State Grange v.
Washington
State Republican Party, 552 U. S. 442, 449–450, n. 6
(2008), where “[n]o record was made in this respect,” and where the
petitioners thus have not shown “from actual fact” that a
“substantial number of instances exist in which the Law cannot be
applied constitutionally,”
New York State Club Assn.,
supra, at 14.
For instance, the majority highlights that the
statute requires facilities to write their “medical license”
disclaimers in 13 languages.
Ante, at 19. As I understand
the Act, it would require disclosure in no more than two
languages—English and Spanish—in the vast majority of California’s
58 counties. The exception is Los Angeles County, where, given the
large number of different-language speaking groups, expression in
many languages may prove necessary to communicate the message to
those whom that message will help. Whether the requirement of 13
different languages goes too far and is unnecessarily burdensome in
light of the need to secure the statutory objectives is a matter
that concerns Los Angeles County alone, and it is a proper subject
for a Los Angeles-based as applied challenge in light of whatever
facts a plaintiff finds relevant. At most, such facts might show a
need for fewer languages, not invalidation of the statute.
* * *
For these reasons I would not hold the
California statute unconstitutional on its face, I would not
require the District Court to issue a preliminary injunction
forbidding its enforcement, and I respectfully dissent from the
majority’s contrary conclusions.