"Crisis Pregnancy Centers" are fake abortion clinics run by religious fanatics who use online fraud to get them to the top of the search results in order to lure women seeking abortions to visiting a place they believe to be an abortion clinic, but which is really a religious mission where the people pretending to be medical professionals dispense misinformation about the medical risks of abortion, then apply high-pressure sales tactics to bully and trick women into carrying unwanted pregnancies to term.
In 2015, California introduced the Reproductive FACT Act, which limited the use of "intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care."
Under the Reproductive FACT Act, Crisis Pregnancy Centers are no longer allowed to deceive women into thinking that they are speaking to licensed medical personnel, and they must inform women who enter their premises that "the state provides free or affordable access to contraception, prenatal care, and abortion."
The National Institute of Family and Life Advocates, an industry group for these centers, is taking a First Amendment lawsuit against the law and the state of California to the Supreme Court, arguing that their free speech rights protect their ability to deceive women about the science of pregnancy and whether their counselors have medical qualifications.
NIFLA's suit is being bankrolled by Arizona's Alliance Defending Freedom, the religious group that sued for the right of cake-makers to discriminate against gay people.
Horrifyingly, there's a good chance that NIFLA could win, because they've framed their First Amendment claims in terms that are especially friendly to earlier decisions from Justice Kennedy, and they can count on Justice Neil Gorsuch (who stole Merrick Garland's Supreme Court seat with help from Donald Trump) to rubberstamp any anti-abortion move, no matter how despicable.
Volokh says the Supreme Court has made clear that "requiring people to speak" poses a First Amendment problem, but the court has also suggested that the kind of speech sought out by people looking for specialized expertise — what he refers to as "professional client speech" — may be more susceptible to regulation.
While the justices will have to weigh whether California's disclosure requirements ask too much of these anti-abortion centers, Volokh said there is "not much by the way of guideposts" to figure out how the court might rule. In Planned Parenthood v. Casey in 1992, for instance, Kennedy upheld so-called informed consent requirements, although in that case they were disclosures aimed at deterring abortion.
"Kennedy is not always 100 percent consistent, but he's in a weird place with this case," said Bagenstos. "He has narrowly supported the right to choose abortion, but he's obviously personally opposed and believes very strongly that there ought to be an opportunity to be persuaded not to choose it." Though Bagenstos sees "a really strong argument" in favor of the law's constitutionality, the plaintiffs, he says, surely recognize that these types of First Amendment arguments likely resonate with Kennedy.
THE FIRST AMENDMENT CASE THAT COULD UPEND ABORTION LAW
[Rachel M. Cohen/The Intercept]
(Image: Public Health Watch)