Procedural history

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.^[9] 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.^[14]

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^[15] 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."^[14] 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."^[14] 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."^[14]

The Ninth Circuit denied a motion for rehearing en banc in December 2016.^[16]

Opinion of the Court

The Court announced judgment on June 26, 2018 in favor of the challengers. In the 5–4 decision, split between the conservative and liberal justices, the Court ruled that both notices required by the FACT Act likely violated the free speech principles of the First Amendment, reversing the Ninth Circuit's decision and remanding the case there for review.^[22] Justice Clarence Thomas wrote the majority opinion, joined by Justices Roberts, Kennedy, Alito, and Gorsuch.^[23] Thomas identified that the FACT Act targeted the speaker of the language demanded by the Act rather than the speech itself, which conflicted with the First Amendment. He wrote that the FACT Act "imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest", and because it only applied to a specific classification of facilities, it could be seen as compelled speech for those in the CPCs that disagreed with the state's stance on abortion.^[24] Thomas' opinion rejected the Ninth Circuit's conclusion that the FACT Act was equivalent to "professional speech", defined through Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) as "factual, noncontroversial information" that is less protected by the First Amendment, as the FACT Act notice dealt with the controversial topic of abortion. Instead, Thomas argued, the state could use public advertising or even post public notices near the CPCs to achieve the same message without violating the First Amendment.^[24] In regard to the notice for unlicensed centers, Thomas found that the state had not proved anything more than a "purely hypothetical" harm that the notices were to remedy, following Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136 (1994), and even if they had demonstrated such harm, the notices would still run afoul of the First Amendment challenges.

Concurrence and dissent

Justice Kennedy wrote a concurrence, which was also joined by Roberts, Alito, and Gorsuch, which further asserted that the FACT Act was specifically targeting anti-abortion centers, describing it as "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".^[24]

Justice Breyer wrote the dissenting opinion, joined by Ginsburg, Sotomayor, and Kagan. Breyer took issue with the majority's take on the First Amendment, using a heightened standard to test the First Amendment applicability as established from Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).^[25] Breyer also criticized the majority's opinion in light of the Court's decision from Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court affirmed the constitutionality of a law requiring physicians to provide women considering abortions with information related to adoption. Breyer wrote "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".^[24]