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Supreme Court Takes On Case About Free Speech And Abortion

Nov 13, 2017

Does a California law violate the Constitution by requiring anti-abortion pregnancy centers to inform clients about free or low-cost abortion and contraception services? That's the question the Supreme Court is taking on, in a new case it accepted on Monday.

California's Reproductive FACT Act became law in October of 2015. It requires licensed and covered facilities to give all their clients notice that the state "has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women."

The law also gives the attorney general and other prosecutors the power "to bring an action to impose a specified civil penalty against covered facilities that fail to comply with these requirements."

Anti-abortion group NIFLA — the National Institute of Family and Life Advocates — filed a legal challenge to the Reproductive FACT Act, saying that it forces clinics to promote or advertise abortion services.

In taking the case on, the Supreme Court justices limited their participation to one question: "Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."

The California law generated lawsuits almost immediately, with several pregnancy centers suing the state and asking for the law to be struck down, as NPR's Kelly McEvers reported in the fall of 2015.

One of those suing was the Pacific Justice Institute, whose Brad Dacus spoke to Kelly about his reasoning.

"It's like telling the Alcoholics Anonymous group that they have to have a large sign saying where people can get alcohol and booze for free," Dacus said. "It's like telling a Jewish synagogue that they can have their service, and do their thing, but they have to have a large sign where people can go to pray to receive Jesus."

The Reproductive FACT Act details both the content of the clinics' message about abortion, and the method of delivery.

According to the law, the notice must read, "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]."

It adds that the information must be disclosed in one of several ways, including a public notice in a conspicuous place in the waiting area, on paper which "shall be at least 8.5 inches by 11 inches and written in no less than 22-point type."

Other options include providing printed or digital notices to all the clinics' clients.

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