National Institute of Family and Life Advocates v. Becerra

Whether California’s “Reproductive FACT Act” (FACT) violates the free speech clause of the First Amendment by compelling crisis pregnancy centers to provide information on state-funded abortions, or in the case of unlicensed facilities, to provide a disclaimer that the facility does not provide medical services.

Petitioner, National Institute of Family and Life Advocates, a non-profit organization comprised of partner organizations that operate crisis pregnancy centers seeks an injunction against California’s FACT law (FACT). FACT applies to entities that provide family planning and pregnancy related services. FACT requires licensed medical facilities provide clients with information on state-funded abortions. Under the Act, unlicensed facilities must provide notice on all of its advertising, in multiple languages and conspicuous font, that the facility does not provide medical services. FACT exempts government-operated clinics and providers of comprehensive reproductive health care from making these disclosures. These exemptions, Petitioner asserts, target the compelled speech provisions at a narrow class of speakers who oppose abortion a view allegedly disfavored by the state. Petitioners assert that the Ninth Circuit erred by concluding that though the provisions of FACT were facially content-based, they were not subject to strict scrutiny because the law itself is neutral. Petitioner asserts that because the purpose and justifications for FACT are viewpoint-based the law is not neutral. Further, Petitioner asserts that the Ninth Circuit’s application of intermediate scrutiny on the basis that FACT regulates professional speech is invalid because the centers provide pro bono, not commercial services.  Moreover, Petitioner asserts that FACT exceeds the scope of physician-mandated disclosures allowable under Planned Parenthood of Southeastern Pennsylvania v. Casey, which addresses only those disclosures required to gain informed consent for a surgical procedure. Finally, Petitioner notes that the Ninth Circuit’s failure to apply strict scrutiny conflicts with precedent in the Fourth and Eleventh Circuits.