Court Strikes Down Abortion Notices Under First Amendment

A number of pro-life crisis pregnancy centers mounted a First Amendment challenge to a California law that required licensed medical providers to provide a notice to its patients of the availability of free or low-cost services, including abortions, and required each unlicensed pro-life medical provider to notify patients that it was not licensed. The centers requested a preliminary injunction, which was denied by the district court and affirmed by the Ninth Circuit on the basis that the centers could not show a likelihood of success on the merits because the notices were a regulation of “professional speech” that met a lower level of scrutiny than “strict scrutiny.” In National Institute of Family and Life Advocates v. Becerra, Justice Thomas wrote for a five-member majority that the notices likely violated the First Amendment, and so reversed and remanded the case. First, the Court held that the notices must be given at least intermediate scrutiny, and rejected the argument that “professional speech” was not protected by the First Amendment. The Court further held that the notices required by licensed medical providers were “wildly underinclusive” in who was required to provide the notices, and the notices required by unlicensed pro-life providers unduly burdened them compared to other unlicensed providers. Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, filed a concurrence noting that California’s law was “viewpoint discrimination” that raised serious constitutional concerns, but agreed with resolving the case under the narrower grounds of Justice Thomas’ opinion. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that both provisions should be constitutional, and the majority’s new standard was too vague to be consistently applied.