Thoughts on Becerra: Do Women Have No Right to Truth in Advertising?

I have been studiously trying not to think about the Supreme Court vacancy Trump is busy working to fill. I have also not paid the attention to a few of the last Supreme Court rulings of this session that I should have. There is just so much.

When I was in the car the other day, NPR helpfully filled in some of the details on National Institute of Family and Life Advocates v. Becerra, the crisis pregnancy center case. Prior to this, I knew only that Becerra overruled a California law requiring crisis pregnancy centers to display information directing patients on how to access abortion services.

As the NPR commentators explained, the argument turned on speech issues—requiring centers to display the information, the Court ruled, constituted forced speech. There is a certain logic to this, and it’s not hard to see why many might find the Court’s decision reasonable—but this logic extends only so far, and is only surface-level. The illusion of consistency vanished the moment an NPR commentator read a section from Justice Breyer’s dissent.

Breyer began by citing Planned Parenthood v. Casey (1991), in which the Supreme Court held that states could lawfully require physicians to provide patients with information about adoption services before performing an abortion.

He then asked this question:

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 health care 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.”

Abortion opponents have spent decades crafting dozens of requirements to be placed on abortion clinics and abortion providers—they must provide information about parenting and adoption, they must provide information about the health risks of abortion (including things that are not actually health risks), and on and on it goes. It is only logical that a blue state like California would require similar disclosures of crisis pregnancy centers.

This made me curious about the content of the notices the California law required crisis pregnancy centers to display. So I did some poking around. According to Reason, the requirements were as follows:

[A.] California law required any licensed medical facilities that had the “primary purpose” or “providing family planning or pregnancy-related services” to disseminate (by posting, distributing in print, or providing digitally) a notice that said,

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].

The rule covered facilities that did at least two of the following: (1) offering obstetric ultrasounds, obstetric sonograms, or prenatal care, (2) providing or counseling about contraception, (3) offering pregnancy testing or diagnosis, (4) advertising sonograms, pregnancy tests, or pregnancy options counseling, (5) offering abortion services, (6) or collecting health information from clients using staff or volunteers. And it exempted certain categories of clinics, such as those enrolled in a state program that required clinics to provide sterilization and emergency contraceptives.

[B.] California law also required certain facilities that were not licensed by the states to provide—both on-site and on all advertisements—a conspicous notice that said,

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 services.

This requirement applied to facilities that engaged in at least two of items 1, 3, 4, and 6 above (basically offering ultrasounds, sonograms, prenatal care, pregnancy testing, and pregnancy options counseling, and collecting health information). California doesn’t require licenses for engaging in such actions, but does require disclosure of the facility’s unlicensed status.

This seems completely reasonable.

Remember my posts last week about how crisis pregnancy centers are increasingly advertising themselves as women’s clinics? In fact, they have become so good at this deception that many women think they are walking into a licensed medical clinic, when in fact they’re walking into a facility that only offers pregnancy tests and ultrasounds as a way to bring women in and dissuade them from getting an abortion (often through a combination of false information about health risks and religious rhetoric positing that abortion is murder and cohabitation is sin).

It is reasonable for the state of California to want to ensure that women who enter such clinics know, first, that these clinics are not licensed, and, second, have access to a number to call if they want more comprehensive help offered by the state, including state-funded prenatal care. And that first requirement—ensuring that women know about state reproductive health services—applied to all clinics that dealt in family planning, not just those opposing abortion.

So let’s be clear, here—the Court ruled that requiring a crisis pregnancy center to display a notice stating that the clinic is not licensed, and a number to call for information about state-offered reproductive services, violated the center’s right to free speech. What of women’s right to truth in advertising?

In fact, it strikes me that Becerra could be used to strike down all truth-in-advertising laws. Except that it probably won’t be used that way, since it seems to merely be women who do not have the right to truth in advertising. Make a licensed doctor claim falsely that abortion leads to increased risk of breast cancer when it doesn’t? Conservatives are all for it! Make an unlicensed clinic state that it is unlicensed? Conservatives protest, and win.

I am suddenly remembering why I stayed away from most news about this case when the ruling first came down in June. This ruling is so fundamentally wrong that reading about it is depressing as hell. The only silver spot is that the case has to go back to the lower courts, but given the strong wording of the Supreme Court, findings there are unlikely to change (i.e. the process appears to be merely procedural).

This is wrong. It is injustice. And the only way to fight it is to change the Supreme Court. But—oh that’s right—we’re screwed there too. I’m not really sure what to say to my daughter’s generation other than I’m sorry.

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