National Institute of Family and Life Advocates v. Becerra

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National Institute of Family and Life Advocates v. Becerra
Seal of the United States Supreme Court.svg
Argued March 20, 2018
Full case name National Institute of Family and Life Advocates, dba NIFLA, et al., Petitioners v. Xavier Becerra, Attorney General of California, et al.
Docket nos. 16-1140
Prior history Motion for preliminary injunction denied, No. 3:15-cv-02277-JAH-DHB, 2016 U.S. Dist. LEXIS 92612 (S. D. Cal. 2016); aff'd, 839 F.3d 823 (9th Cir. 2016).
Court membership
Chief Justice
John G. Roberts
Associate Justices
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch

National Institute of Family and Life Advocates v. Becerra is a case pending before the Supreme Court of the United States addressing the constitutionality of California's FACT Act which mandates that crisis pregnancy centers provide certain disclosures.

The question presented is "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 14th Amendment."[1]


A crisis pregnancy center (CPC) is a type of nonprofit organization established to counsel pregnant women against having an abortion.[2][3][4] CPCs generally provide peer counseling related to abortion, pregnancy, and childbirth, and may also offer additional non-medical services such as financial assistance, child-rearing resources, and adoption referrals.[5] CPCs that qualify as medical clinics may also provide pregnancy testing, sonograms, and other services.[6] CPCs are typically run by pro-life Christians according to a conservative Christian philosophy, and thus typically do not recommend or refer for abortion as an option for pregnancy.[7]

CPCs had been the subject of debate across the United States. Medical professionals and abortion-rights advocates state that CPCs omit information, provide false or misleading information regarding abortion and may lead women to unsafe medical options.[8] Cities like Baltimore, Austin, and New York City passed legislation to require CPCs to disclose their status and that they did not offer abortion services, but organizations representing the CPCs have been successful in courts challenging these laws, principally on the argument that forcing the CPCs to post such language violated their First Amendment rights and constituted compelled speech.[9][10]

Based on a report prepared by NARAL Pro-Choice America which alleged that CPCs were providing misleading and inaccurate information,[11] the California Legislature passed the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act (AB-755) in October 2015. It primarily required any licensed healthcare facility that provided care services related to pregnancies to post a notice that stated "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." The law set provisions where this notice was to be posted, and established civil fines if facilities did not comply.[12] The Act also required unlicensed facilities which offered certain pregnancy-related services to post a notice stating: "This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services."[13] Whereas the previous attempts at regulating CPCs in Baltimore and other cities were based on having signage that informed the patient that the CPC did not offer abortion-related services, the FACT Act instead makes the patient aware of state-sponsored services that are available rather than what the CPCs did or did not offer.[8] The law went into effect January 1, 2016.[13]

History of the case

Shortly after its passage, CPCs and the Pacific Justice Institute filed lawsuits challenging the constitutionality of the Reproductive FACT Act. The CPCs asserted that the law's requirements constituted compelled speech in violation of their rights to freedom of speech and free exercise of religion under the First Amendment.[8] Among these was a lawsuit filed in the U.S. District Court for the Southern District of California by the National Institute of Family and Life Advocates (NIFLA) who represented over 100 CPCs in California. NIFLA sought a preliminary injunction to prevent the Reproductive FACT Act from coming into force on January 1, 2016, while the lawsuit continued. The Court denied the motion for a preliminary injunction in February 2016. NIFLA appealed from the denial of the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit in June 2016, which affirmed the judgment of the District Court in a unanimous decision authored by Judge Dorothy W. Nelson, joined by Judges A. Wallace Tashima and John B. Owens.[13]

The Ninth Circuit decision noted that the existence of a circuit split on the issue of the proper level of scrutiny to apply in cases relating to abortion-related disclosures, and agreed with the Fourth Circuit that the Supreme Court's decision in Planned Parenthood v. Casey[14] did not resolve this question. The Court held that the notice that the state required to be posted in licensed facilities constituted professional speech, subject to intermediate scrutiny, and that the notice survived intermediate scrutiny because 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" and because the notice was "narrowly drawn to achieve California's substantial interests."[13] The Court further held that the required notice for unlicensed facilities would survive any standard of review—even strict scrutiny—holding that "California has a compelling interest in informing pregnant women when they are using the medical services of a facility that has not satisfied licensing standards set by the state. And given the Legislature’s findings regarding the existence of CPCs, which often present misleading information to women about reproductive medical services, California’s interest in presenting accurate information about the licensing status of individual clinics is particularly compelling."[13] The Court also ruled that the petitioners had no likelihood of success on their claim that the law violated their rights under the Free Exercise Clause. Citing Employment Division v. Smith, the court held that the law was a "neutral law of general applicability, subject to only rational basis review."[13]

The Ninth Circuit denied a motion for rehearing en banc in December 2016.[15]

Supreme Court

NIFLA filed a petition for writ of certiorari in March 2017, asking the Supreme Court to hear the case, pointing to the circuit split identified in the Ninth Circuit's decision. NIFLA specifically asked the Court to decide the question of "Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising."[15] The Court agreed to hear the case in November 2017.[16]

NIFLA was represented by Alliance Defending Freedom.[17]

Oral arguments were held on March 20, 2018. Observers of the arguments believed the Court favored the CPCs and agreed with their arguments that the legal requirements of the Reproductive FACT Act not only burdened the free speech of the centers, but also put a burden on the centers to post the notice – for example, CPCs in Los Angeles County would be required to post the notice in 13 different languages.[18] At oral argument, a number of justices said they believed that the FACT Act was written specifically to target CPCs; Justice Elena Kagan questioned whether that the law was "gerrymandered" to impact CPCs rather than all pregnancy service providers.[19][20] The Court also considered the FACT Act in relationship to the Court's previous ruling of Planned Parenthood v. Casey, which upheld the constitutionality of a Pennsylvanian law that required doctors performing abortions to provide their clients with health information related to them.[19]


  1. ^ National Institute of Family and Life Advocates v. Becerra, SCOTUSblog.
  2. ^ Bazelon, Emily (January 21, 2007). "Is There a Post-Abortion Syndrome?". The New York Times. New York Times Company. p. cover story. Retrieved November 6, 2007. 
  3. ^ Simon, Stephanie (February 12, 2007). "Abortion foes are getting public funds". San Francisco Chronicle. 
  4. ^ Chandler, Michael Alison (September 9, 2006). "Antiabortion Centers Offer Sonograms to Further Cause". Washington Post. Washington Post. p. html. Retrieved February 24, 2008. 
  5. ^ Cooperman, Alan (February 21, 2002). "Abortion Battle: Prenatal Care or Pressure Tactics?". Washington Post. 
  6. ^ "This state just became the first to crack down on deceptive anti-abortion pregnancy centers". Mother Jones. 
  7. ^ Gibbs, Nancy (February 15, 2007). "The Grass-Roots Abortion War". Time. 
  8. ^ a b c McEvers, Kelly (November 5, 2015). "California Law Adds New Twist To Abortion, Religious Freedom Debate". All Things Considered. NPR. Retrieved March 15, 2018. 
  9. ^ Winter, Meaghan (June 15, 2015). "Why Are Crisis Pregnancy Centers Not Illegal?". Slate. Retrieved March 15, 2018. 
  10. ^ Stempel, Jonathan (January 5, 2018). "Court voids Baltimore law requiring 'no abortion' clinic disclaimers". Reuters. Retrieved March 20, 2018. 
  11. ^ Green, Emma (March 19, 2018). "Should Pro-Life Clinics Have to Post Information About Abortion?". The Atlantic. Retrieved March 19, 2018. 
  12. ^ "AB-775 Reproductive FACT Act". California State Congress. October 15, 2015. Retrieved March 15, 2018. 
  13. ^ a b c d e f National Institute of Family and Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016).
  14. ^ Planned Parenthood v. Casey, 505 U.S. 833 (1992).
  15. ^ a b [1]
  16. ^ Chapell, Bill (November 13, 2017). "Supreme Court Takes On Case About Free Speech And Abortion". NPR. Retrieved March 15, 2018. 
  17. ^ Farber, Madeline (November 16, 2017). "Supreme Court to hear anti-abortion and free speech case: A breakdown of NIFLA v. Becerra". Fox News. Retrieved January 20, 2018. 
  18. ^ Savage, David (March 20, 2018). "California disclosure law for faith-based pregnancy centers faces skeptical questions in Supreme Court". The Los Angeles Times. Retrieved March 20, 2018. 
  19. ^ a b Liptak, Adam (March 20, 2018). "Supreme Court Warily Eyes California Law Involving Abortion and Free Speech". The New York Times. Retrieved March 20, 2018. 
  20. ^ Oral argument transcript, National Institute of Family and Life Advocates v. Becerra (S. Ct. No. 16-1140): "JUSTICE KAGAN: There is a -- a sense when you read this statute ... here's at least a question that arises as to whether this statute has been gerrymandered."

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