How the Grinch stole relists

How the Grinch stole relistsJohn Elwood reviews Monday’s relists, after a fashion. Every Nerd Down in Nerd-ville Liked relists a lot … But the Grinch, Who lived just south of Nerd-ville, Did NOT! The Grinch hated relists! The whole relist thingy! Now, please don’t ask why. Who can tell with that ninny? It could be his head wasn’t screwed […]

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How the Grinch stole relists

John Elwood reviews Monday’s relists, after a fashion.

Every Nerd

Down in Nerd-ville

Liked relists a lot …

But the Grinch,

Who lived just south of Nerd-ville,

Did NOT!

The Grinch hated relists! The whole relist thingy!

Now, please don’t ask why. Who can tell with that ninny?

It could be his head wasn’t screwed on just right.

It could be, perhaps, his work schedule’s too tight.

But I think what may have most rankled the rube,

Was he was sick of the search for sight gags on YouTube.

 

But,

Whatever the reason,

Billable hours or camcorders,

He hunched at his desk, just dreading the orders,

Staring down at his screen with a sour, Grinchy scowl.

He knew it’d be hours ‘fore he could throw in the towel

Because learning QPs is a trouble-filled tale

When counsel of record don’t respond to email.

 

Right then the Grinch thought, “I must stop this whole thing!

“Why, for seven long years I’ve put up with it now!

“I MUST stop these relists from coming!

… But HOW?

Then he got an idea!

An awful idea!

THE GRINCH GOT A WONDERFUL, AWFUL IDEA!

 

“I need vehicle problems …”

The Grinch looked around.

But for lots of the cases, there were none to be found.

Did that stop the old Grinch?

No! The Grinch simply said,

“If I can’t find such problems, I’ll make them instead.”

“I know just what to do!” the Grinch uttered, awed.

And then he dispatched a quick text to Geek Squad.

He chuckled, and clucked, “More great Grinchy turns!”

“I’ll hack PACER and introduce vehicle concerns!”

So he called the Geek, Max. And explained, to his terror,

“You must inject, on each docket, a confession of error.”

“No court would do anything quite so headstrong,

“As grant relief to a party that’s admitted it’s wrong.”

 

Then he slithered and slunk, with a smile disagreeable,

And returned, with a smirk, to go home in his vehicle.

“This week, and forever, there’ll be no counsel to call,

“Cause with luck, there’ll be no relists, from now on, AT ALL.”

And when next Monday came, the Nerds were not blissed

‘Cause the orders contained not a single relist.

*  *  *  *  *

Now you know that our SCOTUSblog posts are on fleek,

And it’s true: There ARE no new relists this week.

We wish to assure our readers most fearful,

Who grouse ‘cause the ending’s supposed to be cheerful

That there’s no dark conspiracy, at least not ‘bout this,

It’s just that the court’s used up all its relists.

Come next year, we’ll be sure to have relists galore.

And we’ll be able to hunt for cat videos once more.

And so let me say, ‘fore I send to the printer,

“Happy Festivus to all, and to all a good winter!”

 

And with that, we’ll get down to the mundane matter of actually listing this week’s relists. The court has not formally relisted these cases on the dockets; we’re inferring from inaction that certain cases are relisted and that certain others (not listed below) are being held for cases that are already on the merits docket.

Thanks for reading this year and we look forward to making 2018 the best year yet for saying, “Relist Watch used to be better!”

Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relists

I feel so slighted that you didn’t read the great literary work above. There aren’t any!

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1 conference; likely relisted after the December 8 conference)

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Ask the author: Justice Robert Jackson’s revealing thoughts and unpublished opinion in Brown v. Board of Education

Ask the author: Justice Robert Jackson’s revealing thoughts and unpublished opinion in <em>Brown v. Board of Education</em>The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. O’Brien’s  “Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board” (University Press of Kansas, 2017, pp. 220). David O’Brien is the Leone Reaves and George W. Spicer Professor at the University of Virginia. He was […]

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Ask the author: Justice Robert Jackson’s revealing thoughts and unpublished opinion in <em>Brown v. Board of Education</em>

The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. O’Brien’s  “Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board” (University Press of Kansas, 2017, pp. 220).

David O’Brien is the Leone Reaves and George W. Spicer Professor at the University of Virginia. He was a judicial fellow and research associate at the U.S. Supreme Court. O’Brien is the author of numerous books and over 100 articles, including “Storm Center: The Supreme Court in American Politics” (11th ed. W.W. Norton), which received the ABA’s Silver Gavel Award, and a two-volume casebook, “Constitutional Law and Politics” (10th ed., W.W. Norton 2017).

Welcome, David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book, which is quite extensive in its examination of Justice Robert Jackson’s views on Brown v. Board of Education.

* * *

However sympathetic we may be with the resentments of those who are coerced into segregation, we cannot, in considering a recasting of society by judicial fiat, ignore the claims of those who are coerced out of it….

My real difficulty is not with the conclusion [in the case], which is congenial to my own background and policy preconceptions. Justice Robert H. Jackson (1953)

Question: How did you come to write this book?

O’Brien: When researching the first edition of Storm Center I came across Jackson’s unpublished opinion and found it so prescient about debates over “originalism” and, as Jackson put it, a “living constitution.” That was about 1985 and his papers had just been processed at the Library of Congress.

Question: You devote 10 pages to reproducing the final draft of Jackson’s unpublished opinion in Brown. Your account of the various drafts of that opinion introduces us to Jackson’s view of constitutional interpretation and his evolving thoughts on matters such as “original intent” versus a “living Constitution,” along with his understanding of the role of the Supreme Court and social change. As far as you know, has the opinion ever been published before? Why is it important?

O’Brien: Excerpts of the unpublished opinion were published in every edition of my casebook, “Constitutional Law and Politics: Vol. 2 Civil Rights and Civil Liberties.” Harvard Law School professor Mark Tushnet also included an excerpt in his edited book, “I Dissent: Great Opposing Opinions in Landmark Cases” (2008). But, of course, Jackson’s opinion was never intended as a dissent.

The opinion is important because it provides insight into a justice’s thinking about the greatest decision in the 20th century, unencumbered by the input or influence of a law clerk and it reveals much about and indeed anticipates later debates over constitutional interpretation, and remains timely and instructive today.

Question: As you discuss, Jackson crafted six draft opinions in Brown. Can you give us a brief overview of the evolution of his thinking in those drafts?

O’Brien:  Jackson had no doubt about the outcome. His first draft was written two days before the second round of oral arguments and specifically refers to “the decision we decide today” — almost six months before Brown came down.

Initially, Jackson hoped Congress would resolve the matter but gave up, acknowledging that the public and the political system could not own our “hypocrisies” about race. He increasingly concentrated on thinking through (conversing with himself) a constitutional justification for the ruling because he (correctly) feared the court’s decision would be challenged as too sociological (for which it was criticized, particularly for (in)famous footnote 11). He also anticipated the difficulties of overruling a precedent (Plessy v. Ferguson) that had legitimated “a way of life,” as well as the lengthy struggle over the matter of remedies, especially in light of the foreseeable pushback in the states.

Question: In Chapter 5 of your book, you say that Jackson was “principled,” but immediately thereafter you add that “he was also a realist and pragmatist.” Are you saying that he was a principled pragmatist? If so, what might that mean?

O’Brien: Yes, Jackson was a “principled pragmatist” in the sense that he defended constitutional principles but was not slavish in doing so; he was no “absolutist” like Justices Hugo Black and William Douglas. (See and compare Jackson’s 1943 opinion in West Virginia Board of Education v. Barnette, and other cases dealing with claims by the Jehovah’s Witnesses, with his 1949 opinion in Terminello v. Chicago on the scope of First Amendment protection of freedom of speech, observing that “the Constitution is not a suicide pact.”)

Question: As you note, Jackson hoped to become chief justice (as did Black). Given the makeup of the court at the time, and had he lived longer, how effective do you think Jackson might have been as a chief justice?

O’Brien:  He would have been effective, given his wit and charm, but also would have encountered conflict (as did Chief Justice Fred Vinson) with Black and Douglas.

Question: Vinson died unexpectedly of a heart attack on September 8, 1953, before any ruling had been released in Brown. Many have speculated about whether the vote, or even the result, in the case might have been different had Vinson lived longer. Where do you come down on this matter and why?

O’Brien:  This is discussed in Chapter 2, which makes clear that the outcome would have been the same, based on a study of all the justices’ and their law clerks’ papers. Much of the history of the decision-making in Brown done in the 1970s and 1980s was misleading, incomplete or simply wrong because scholars did not have or look at all of the justices’ private papers.

Question: Why was Brown a problematic case for Jackson? Was it the history of the 14th Amendment? The Plessy v. Ferguson precedent from 1896? The result the court reached? Brown’s implementation?

O’Brien: Jackson was equally troubled  by three concerns. First, after examining the “original intent” of the 14th Amendment and finding no support for the court’s proposed ruling, he then turned “from words to deeds” as a possibly more reliable source of the original public understanding of the amendment. Having done so, he found that approach no more helpful — that period in history was simply a confused and deplorable time. He ultimately concluded that the Constitution had not changed but the country had — in terms of acknowledging interracial intimacies and recognizing the demands of public education (for both whites and blacks). Second, he questioned the justification for discarding Plessy’s 1896 “separate but equal” ruling not only because it had sanctioned a “way of life” for over half a century, but because the number of students and school districts affected by the ruling in Brown far exceeded those affected by the earlier rulings in the 1950s admitting one or two students into graduate or law school (Sweatt v. Painter and McLaurin v. Oklahoma State Regents). And third, the latter concern about the breadth of the decision in Brown deeply disturbed him, as well as other justices. There was the predictable problem of fashioning a remedial decree that would provide flexibility. While such a judicial decree would upend social taboos against interracial intimacies, it would also invite a widespread pushback to the court’s ruling in Brown – what to do?

Question: In his unpublished opinion in Brown, Jackson wrote:

It is hard to find an indication that any of the influential body of the movement that carried the Civil War Amendments had reached the point of thinking about either segregation or education of the Negro as a current problem, and harder still to find that the Amendments were designed to be a solution. If we turn from words to deeds as evidence of purpose, we find nothing to show that the Congress which submitted these Amendments understood or intended to prohibit the practice here in question.

By contrast, in his 1990 dissent in Rutan v. Republican Party of Illinois, Justice Antonin Scalia argued:

[T]he Fourteenth Amendment’s requirement of “equal protection of the laws,” combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century the principle of “separate-but-equal” had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our most historically respected Justices.

Are these two statements in opposition to one another? If so, which originalist view do you think to be the stronger one?

O’Brien: Jackson’s understanding, as is clear in the unpublished opinion, of the 14th Amendment was certainly more accurate, honest and candid than Scalia’s revisionist view of the “original public understanding” of the amendment. Jackson repeatedly stresses that Congress funded segregated schools in the District of Columbia both before and after the ratification of the 14th Amendment, as well as admitted representatives of the Confederate states who ratified the amendment and yet continued maintaining (or later embraced) racially segregated schools.

Question: How do you think Jackson would have ruled in Brown II, in which the Supreme Court ordered that desegregation be implemented “with all deliberate speed”?

O’Brien: Jackson would have signed on to the 1955 remedial decree (had he lived) because, like all of the other justices, he saw the need for flexibility in implementation; like others too, he underestimated the amount of time it would take to achieve “integration” — to move, as he put it, from one world to another — from a world of white supremacy to one of equal dignity and respect.

Question: William Rehnquist was a law clerk to Jackson during October Term 1952. In his book “The Supreme Court,” Rehnquist wrote: Jackson “requested that I come to Washington on February 1, 1952, and plan to serve as his clerk from then until June 1953. I was surprised and delighted to receive this offer, and accepted it immediately.” You have a somewhat different view of this matter. Can you say a few words about it?

O’Brien: Based on Rehnquist’s correspondences with Jackson (which are at the Hoover Institution and the Library of Congress), it is clear that he “embellished” the matter in his book and in fact doggedly pursued the clerkship, until Jackson finally relented and took him on.

Question: In his 1952 memo to Jackson concerning Brown, Rehnquist wrote:

Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction. If this Court, because its members are ‘liberal’ and dislike segregation, now chooses to strike it down, it differs from the McReynolds court only in the kind of litigants it favors and the kinds of special claims it protects.

In his 1971 confirmation hearing to become an associate justice and again at his 1986 hearing to become chief justice, Rehnquist argued that his memo represented Jackson’s views. In a 1971 letter sent to Senate Judiciary Committee Chairman James O. Eastland, Rehnquist stated: “I am satisfied that the memorandum was not designed to be a statement of my views on these cases.”

Can you briefly explain why Rehnquist claimed that the views expressed in his memo were not his but rather Jackson’s?

O’Brien: Rehnquist’s memo argued that Plessy’s holding should be reaffirmed, and at his confirmation hearings as an associate justice and then as chief justice in 1976 and 1986, he simply distorted or lied about the memo’s reflecting Jackson’s views (As indicated above, Jackson in the very first draft indicated he supported the eventual outcome in Brown.). The undeniable fact that  Rehnquist distorted or simply lied is clear from primary and secondary sources cited in Chapter 3.

Question: You write: “[W]ithout any doubt, in 1971 and 1986 Rehnquist at the very least misled and misrepresented whose views his memo represented, if not outright lied.” That is a serious charge. On what do you base it?

O’Brien: As suggested above, it is obvious from both primary sources (correspondence in Jackson’s and Rehnquist’s papers) and secondary sources — works by Richard Kluger, “Simple Justice” (2004),  and John Dean, “The Rehnquist Choice” (2002).

Question: You also discuss Rehnquist’s 1953 memo in Terry v. Adams, the state-action white-only pre-primary election case. There, the court, in an 8-1 ruling, held that the combined election procedures of the Jaybird Democratic Association and the Democratic Party deprived black citizens of the right to vote. Could you briefly describe that memo and explain why you think it sheds light on Rehnquist’s Brown memo?

O’Brien:  The Terry memo was written by Rehnquist, as was that in Brown, and expressed his distaste or lack of sympathy for desegregation and civil rights efforts. And again the memo was contrary to Jackson’s own thinking and eventual vote. University of Chicago Law School professor Dennis Hutchinson wrote an excellent article about this memo and how it further discredits Rehnquist’s testimony.

Question: You remind your readers that Judge Learned Hand criticized the Brown decision in his 1958 Oliver Wendell Holmes Lecture. In light of that, can any justice today attain greatness if he or she has contested, for whatever reasons, the outcome in Brown?

O’Brien: To borrow from Isaiah Berlin’s famous essay, Hand, like Jackson, was a “hedgehog” who believed that equal protection should apply across the board to all segregated public accommodations, unlike Justice Felix Frankfurter, a “fox” who always tried to avoid or minimize the Supreme Court’s rulings on controversial legal/political issues, like Brown.

Today, no one on the left or the right would deny the legitimacy of Brown. But what is even more remarkable is how liberal/progressive and conservative/originalist scholars now seek to justify Brown and 1967’s Loving v. Virginia (striking down miscegenation laws) on the grounds of the “original public understanding” of the 14th Amendment. They do so only by distorting the history of the amendment or by abandoning history in a quest for a higher level of generality in the application of the 14th Amendment. In doing so, both sides fail to face facts. Jackson, by contrast, held otherwise and concluded that the Constitution had not changed, but the country had in terms of interracial intimacy and public education. And that justified the court’s ruling.

So, in answer to your question, no one today — on the left or the right — would contest the canonical ruling in Brown, but that is because they — judges and scholars alike — are all Machiavellian in their reading of history and constitutional interpretation.

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Symposium: NIFLA v. Becerra — Compelling the truth in health-care delivery

Symposium: <em>NIFLA v. Becerra</em> — Compelling the truth in health-care deliveryPriscilla J. Smith is a clinical lecturer in law at Yale Law School. Don’t ask me why, but I’ve been moved of late to look for common ground with ideological opponents. Perhaps it is the aging process, a desire for a quieter life, or living with daily reminders of obnoxious (add whatever adjective here you’d […]

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Symposium: <em>NIFLA v. Becerra</em> — Compelling the truth in health-care delivery

Priscilla J. Smith is a clinical lecturer in law at Yale Law School.

Don’t ask me why, but I’ve been moved of late to look for common ground with ideological opponents. Perhaps it is the aging process, a desire for a quieter life, or living with daily reminders of obnoxious (add whatever adjective here you’d like: offensive, illegal, disgusting, or off-color, unwise, intemperate) behavior by friends and foes alike. Recently I had the pleasure (?) of testifying at a Congressional hearing involving (mostly) men yelling at each other (and at me), that ended early because of what the chair called a “lack of decency” among committee members. Indeed.

First, let’s set the stage by getting your mind off abortion for a second. Consider an advertisement posted by Christian Scientists, without affiliation, stating “Chest Pain, Blood Loss, Broken Bones? Medical Treatment at Exit 8!” and directing patients to an office where they receive only prayers for healing. Surely the government could act to prevent harm to patients before it occurs, especially if the Christian Scientists have compounded the deception by designing the office to look like a medical facility, with employees in lab coats collecting patients’ health information, suggesting that medical treatment is available, just behind the curtain. A simple disclosure on the ad and at the clinic stating that the clinic is not a licensed medical provider and has no licensed medical personnel available to provide treatment would be very little to ask. And this would be so whether or not the Christian Scientists offered their prayers or “counseling” for free. In fact, a sign saying “Free Emergency Medical Treatment Offered Here!” only increases the power of the fraud by targeting it at low-income individuals desperate for medical care.

I apologize to Christian Scientists for using them to make my point; they get enough grief as it is, and as far as I am aware they have never attempted to lure people into their reading rooms under the guise of providing Western medical care. Unfortunately, this is not the case with many “crisis pregnancy centers,” like the plaintiffs in this case. As directors of facilities in Baltimore and San Francisco admitted in depositions in other cases, appearing to be a medical clinic that provides abortion services is integral to the business model of CPCs, and using misleading advertising allows CPCs to compete with abortion providers for women seeking abortions. You can read more in a congressional committee report, and a NARAL fact sheet listing other recent studies of the issue.

To protect its citizens from this deception and the harm it has caused, California enacted a law requiring disclosures be given by each of two different types of facilities.

The first provision requires unlicensed facilities offering medical services performed by laypeople without medical supervision to disclose that they are not licensed medical providers. That’s it. They can continue to say whatever they want to say about abortion and pregnancy, continue to provide pregnancy tests and ultrasounds and take health information, they can lie about pregnancy test results and about what ultrasounds show about how far along the woman’s pregnancy is, or they can tell the truth. They can mislead women about the risks of abortion and pregnancy if they want, or they can tell the truth. They can offer to provide diapers and other financial support during the first year of a child’s life if the woman has the child, whether or not they will in fact provide these services. The law doesn’t change any of that. It is a modest requirement designed to prevent women from mistaking the untrained, unlicensed and unregulated laypeople performing ultrasounds on them or “diagnosing” their pregnancies for licensed medical providers. That the CPCs oppose this simple disclosure reveals how much they depend on deception.

The second provision requires licensed medical clinics whose “primary purpose is providing family planning or pregnancy-related services” to simply post a disclosure in their waiting rooms about the availability of publicly funded reproductive health care for eligible women and to provide the phone number of the local social-services office. This provision applies to licensed clinics whether or not they offer abortion and contraception, and regardless of their views of family-planning services. Like the first provision, it does not discriminate based on the viewpoint of the speaker. It applies equally to licensed pro-choice and licensed pro-life clinics.

The U.S. Court of Appeals for the 9th Circuit upheld both disclosure provisions. It upheld the status-disclosure provision without deciding whether the provision should be considered a regulation of commercial or professional speech and thus subject to a lower level of scrutiny. Like the U.S. Court of Appeals for the 2nd Circuit in a case challenging a similar New York City ordinance, the court of appeals held that the status disclosure survived even the strictest scrutiny because it is narrowly tailored to serve California’s “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.” The 9th Circuit also upheld the public-services disclosure, evaluating it under intermediate scrutiny as a regulation of professional speech because it occurs in a physician’s waiting room. The appeals court found the notice “narrowly drawn to achieve California’s substantial interests … in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services.”

Now let’s turn to a few propositions we might agree on. First, those who wish to dissuade women from having abortions are protected by the First Amendment. Of course, we can bicker about how obnoxious this dissuasion can be (very), whether protesters should be allowed to block a public walkway in front of or across the street from a clinic (nope), and how much room they must give a patient who wishes to walk by unassaulted (okay, let’s talk), but the general proposition holds. I applaud those who work to support pregnant women who want to carry to term but who feel they can’t afford a (or another) child. This is a form of autonomy-respecting pro-life work I respect, especially when there is real follow through.

Second, the state may target certain industries for prohibitions against fraud and other forms of deception, and an underlying political or religious motivation for speech cannot shield that speech from otherwise appropriate regulation. These appropriate speech regulations occur in the context of medical informed consent, compelled factual disclosures in the commercial context (including the commercial medical context), or laws prohibiting fraud, false advertising and the unauthorized practice of law or medicine. A physician who failed to inform a patient that without a blood transfusion she would die, for example, could be held liable under malpractice laws even if the decision not to inform the patient stemmed from religious opposition to blood transfusions. Lies and failures to inform in the medical context are different from lies in the course of political speech, as the Supreme Court reaffirmed in 2012’s United States v. Alvarez.

Third, consider this proposition: The government may compel factual disclosures in the commercial-speech context when those factual disclosures support the value of ensuring that the stream of commercial information “flows cleanly as well as freely.”  It is well established in cases from Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. to Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio that limited factual disclosures serve the state’s interest in protecting the public from misleading and deceptive commercial speech. Where is this principle more important than with respect to medical care?

This brings me to the fourth proposition, one that many won’t agree with (but still):  California has a compelling interest in informing pregnant women when they are using the medical services of facilities and staff that have not satisfied licensing standards set by the state. A one-sentence notice that, as the 9th Circuit points out, “merely states that the facility in which it appears is not licensed by California and has no state-licensed medical provider,” and “says nothing about the quality of service women may receive at these clinics, and in no way implies or suggests California’s preferences regarding unlicensed clinics,” is narrowly tailored to serve this interest. If this were anything but abortion, could anyone disagree?

Given these four principles, I wouldn’t blame you for wondering why the Supreme Court has agreed to review this case. Even the plaintiffs seem to concede the constitutionality of the status disclosure, at least in theory. In their petition, they argued that the disclosure in this case drowns out other ad copy because the law could be interpreted to require that up to 13 different translations be included, and they distinguished this law from the one in New York City because the New York ordinance did not require extensive translations. Perhaps this is the reason for the grant?  Too many languages on the sign?

Perhaps the Supreme Court has granted certiorari to clarify the professional-speech doctrine evolving in the lower courts, one that touches everything from traditional medical informed-consent requirements, to abortion mandatory information/biased counseling requirements, to pediatricians’ questions about guns and household safety. Or perhaps the court wants to weigh in on the commercial-speech issue. The CPCs argue that their speech, even outside the clinics, cannot be considered “commercial” because they don’t charge for their services. Not only does this (1) contradict precedent holding that speech may be classified as commercial even in the absence of a speaker’s “economic motivation,” and (2) ignore the evidence of economic motives that exists in these cases, it is also nonsensical. Would anyone say that false or misleading advertisements for free legal services are exempt from commercial-speech regulation because the services offered are free? Or perhaps the court plans on extending its use of the First Amendment as a deregulatory tool to shield those who lure pregnant women seeking abortions into their centers under false pretenses because they do so for ideological or religious purposes. If behavior harmful to public health that could otherwise be regulated to protect public health evades regulation because it involves speech, we are all in a lot of trouble.

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Symposium: NIFLA v. Becerra — A Supreme housecleaning continues?

Symposium: <em>NIFLA v. Becerra</em> — A Supreme housecleaning continues?Mark L. Rienzi is a professor of law at The Catholic University of America, Columbus School of Law. The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues. When the speech in question matters most, the temptation toward […]

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Symposium: <em>NIFLA v. Becerra</em> — A Supreme housecleaning continues?

Mark L. Rienzi is a professor of law at The Catholic University of America, Columbus School of Law.

The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues. When the speech in question matters most, the temptation toward government control is greatest. This is true both for the political branches the First Amendment is designed to restrain and, more dangerously, for the judges charged with its enforcement.

Thus it is no surprise that abortion-related speech cases like National Institute of Family and Life Advocates v. Becerra arrive on the Supreme Court’s docket from time to time. Too often, courts in such cases are either tempted or overwhelmed by the abortion-related aspects of a case and fail to apply straightforward First Amendment principles. That pattern is a danger to all speakers, as abortion-related First Amendment errors can distort the doctrine more broadly.

Recent history suggests that, unlike the lower courts, the justices in this case will see the First Amendment issues clearly, even though those issues relate to abortion. The Supreme Court is thus likely to reach the obvious conclusion that California cannot force pro-life pregnancy counselors to direct women to abortion providers. In the process, the court can and should continue its project of repairing First Amendment doctrine that has, over time, been warped by abortion-related speech cases.

Doctrinal distortions in abortion/speech cases

The justices are, of course, well aware that a sensitive issue like abortion can sometimes distort other areas of the law, including the First Amendment.  This case arrives as both sides of the abortion debate have tried to control the speech of their opponents. A Florida law seeks to require counselors and even clergy members who might advise a woman to have an abortion to obtain a special license from the government — a license that would not be required if the same advisor were to counsel against abortion.

A San Francisco law, on the other hand, creates special advertising restrictions that apply to speakers who counsel against abortion, but not to those who counsel for abortion. A Baltimore law forces pro-life pregnancy counselors — even when operating on church property — to post signs with the government’s chosen message about abortion; no similar requirement applies to counselors who are willing to refer for abortions.

As a matter of standard First Amendment doctrine, these should be easy cases. Such laws are classic examples of content and viewpoint discrimination, and they would only be sustainable if the relevant government body could satisfy strict scrutiny and prove that it has no less restrictive way to serve a compelling government interest.

But at times courts have warped First Amendment doctrine to allow a favored side of the abortion debate to control the speech of its adversaries. The U.S. Court of Appeals for the 9th Circuit in the San Francisco case (First Resort v. Herrera), for example, actually claimed that nonprofit pregnancy counselors — who do not charge their clients a penny — were somehow engaged in commercial speech, because the nonprofit separately engages in fund-raising. This standard would turn every nonprofit in the country into a commercial speaker and give the government enormous power to regulate the speech of every nonprofit, from the Sierra Club to the Catholic Church. The panel also found that singling out pro-life counselors was viewpoint-neutral, because speakers might have reasons for refusing to refer for abortion other than being pro-life.

Perhaps the most infamous example of a court allowing the abortion context to trump standard First Amendment analysis is the Supreme Court’s 2000 decision in Hill v. Colorado. There, the court badly distorted the content-neutrality inquiry by holding that a law that restricted “counseling, education, or protest” near the entrance to a health-care facility was content-neutral. Even though such a law is obviously content-based — its application depends directly on the content of someone’s speech — the court found it content-neutral because it was allegedly enacted, not because of disagreement with speech, but to protect “the right to be let alone” or a “right to privacy” on public sidewalks.

Justices Antonin Scalia and Clarence Thomas accused the majority of applying special rules because the case involved abortion, using an approach that is “in stark contradiction of the constitutional principles we apply in all other contexts.” The outrage was not limited to opponents of Roe v. Wade and Casey. Professor Laurence Tribe called Hill “slam-dunk simple and slam-dunk wrong.” Justice Anthony Kennedy (a member of the Casey plurality) said the analysis “contradict[ed] more than a half century of well-established First Amendment principles.” Hill became a widely cited precedent for nearly 15 years, used by many lower courts as the standard for content analysis.

McCullen and Reed: Recent efforts to repair the damage

Recently, the Supreme Court has begun taking steps to clean up the damage done to First Amendment doctrine by these types of cases. First, in 2014, the court decided McCullen v. Coakley, which involved a Massachusetts abortion-clinic buffer-zone law. For 13 years, the lower federal courts in McCullen and its predecessor cases had found the buffer-zone law constitutional because of Hill. But the justices unanimously reversed, finding that the state’s attempt to criminalize even peaceful speech on public sidewalks outside abortion clinics violated the First Amendment.

The McCullen court did not expressly overrule Hill, but it did restate the content-neutrality analysis in a way that was utterly irreconcilable with Hill: A law is content-based if enforcement authorities need to “examine the content of the message that is conveyed to determine whether a violation has occurred.” Further, concern about a listener’s reaction to speech — even if it “caused offense or made listeners uncomfortable” — is not neutral. Under that analysis, the law at issue in Hill is plainly content-based.

The day after deciding McCullen, the Supreme Court granted review in Reed v. Town of Gilbert. Although Reed did not directly concern abortion, it involved the 9th Circuit’s heavy reliance on Hill to find a restriction on the size and placement of signs to be content-neutral, even though application of the law depended entirely on the words placed on the sign. Reversing, and repeatedly relying on the dissenting opinions from Hill, the court made clear that a law is content-based if its application depends on the words spoken, and a benign purpose cannot save an otherwise content-based statute. And Reed emphasized that content-based laws must pass strict scrutiny to survive. Again, under this analysis, the law at issue in Hill is plainly content-based and unconstitutional.

The cleanup continues with NIFLA v. Becerra

NIFLA appears to be part of a similar doctrinal housecleaning for cases involving abortion-related speech restrictions. In this case, the 9th Circuit acknowledged that California’s regulation of pregnancy-related speech was content-based, but chose not to apply strict scrutiny, because the law regulated the speakers’ “professional speech.” Indeed, the appeals court openly acknowledged that it was deviating from Reed in applying only intermediate scrutiny. The court reasoned that strict scrutiny was only required if the law engaged in viewpoint discrimination and found that, although the law requires pro-life providers to provide information about where to obtain abortions, it was viewpoint-neutral.

That reasoning makes no sense, either on its face or in light of Reed and McCullen. California’s law is designed to target speakers who oppose abortion, and it forces them to provide messages that convey the government’s viewpoint, including directing clients where to call to get an abortion. If the law did not concern abortion, no court would have difficulty knowing that strict scrutiny applies.

NIFLA presents the court with intriguing possibilities for how broadly to approach cleaning up First Amendment doctrine. A narrow ruling would dispose of this case but provide little guidance for pregnancy-counseling-regulation cases pending in the lower courts. For example, the court could hold that because the 9th Circuit found the law is content-based, strict scrutiny is necessary, and could remand the case for that analysis.

Alternatively, the court may want to rule more broadly so as to standardize First Amendment doctrine in the pregnancy-center cases throughout the circuits. Such a ruling would require two additional components. First, the court would need to announce (yet again) its clear standard for determining whether a law is viewpoint-based. Some of the lower courts — chiefly the 9th Circuit in First Resort and the en banc U.S. Court of Appeals for the 4th Circuit in an earlier round of litigation in Greater Baltimore Pregnancy Center v. Mayor and City Counsel of Baltimore — have deviated from proper viewpoint analysis by allowing speculation about a speaker’s particular motives for speech to lead them to treat an obviously viewpoint-based government policy as viewpoint-neutral. Reed and McCullen corrected the lower courts’ Hill-inspired overemphasis on government motive; surely the court did not intend that new clarity to be replaced with judicial guesswork about a speaker’s individual motive for having spoken from a certain viewpoint.

Second, the court could clearly announce that the speech of nonprofit pregnancy counselors is not commercial speech. Again, the 9th and 4th Circuits have suggested otherwise. That approach cannot be reconciled with the court’s own commercial-speech cases. Because California has argued that the regulations in this case regulate commercial speech, the court would certainly have grounds to reach this issue.

Whether the justices will use this case quite so broadly is difficult to predict. If they choose not to, they should have one ready vehicle waiting for them by June (the certiorari petition in First Resort is due on February 1) and possibly others soon after. A narrower ruling in this case, followed closely by an additional correction in one of the other cases, would match the cleanup pattern set by McCullen and Reed.

However the court approaches the task, NIFLA is likely to be part of the court’s effort to ensure that the First Amendment protects speakers on all sides of important debates, and continues to apply even on the most sensitive and controversial issue of our time.

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Symposium: The First Amendment cannot justify lying to women

Symposium: The First Amendment cannot justify lying to womenJulie Rikelman is the senior director of litigation at the Center for Reproductive Rights. Is there a First Amendment right to deceive the public about the services that a business provides, simply because those services involve reproductive health care? That is the central question in National Institute of Family and Life Advocates v. Becerra, a […]

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Symposium: The First Amendment cannot justify lying to women

Julie Rikelman is the senior director of litigation at the Center for Reproductive Rights.

Is there a First Amendment right to deceive the public about the services that a business provides, simply because those services involve reproductive health care? That is the central question in National Institute of Family and Life Advocates v. Becerra, a case about provisions in the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act.

California’s FACT Act ensures that women who are seeking time-sensitive reproductive health care services and end up at a crisis pregnancy center can quickly determine whether they have, quite literally, come to the wrong place. CPCs are a multi-million-dollar industry and exist in every state throughout the country; there are thousands of CPCs nationwide and approximately 200 CPCs in California alone. Further, many CPCs are affiliated with national umbrella organizations that provide administrative, strategic and technical support. NIFLA is one such organization. Specifically, NIFLA assists CPCs with undergoing “medical conversions,” as well as with legal advice on avoiding tort liability. Other umbrella organizations, such as Care Net, Heartbeat and the Vitae Foundation, provide a range of advertising support. As NIFLA acknowledges in its cert petition to the Supreme Court, its centers “operate according to their religious views” on reproductive decisions, including on contraception, single parenthood and abortion. No one contends that the CPCs and their staff lack First Amendment protection for their views or that they cannot seek to persuade others to share those views through lawful means.

The problem, however, is that many CPCs purposefully mislead women about their mission. In every way possible, from their advertising, to their physical appearance, to the uniforms of their staff, CPCs are designed to look like medical clinics, not religious ministries. As discovery in other pending cases and federal legislative reports has demonstrated, CPCs engage in deceptive and “purposely vague” advertising to lure women inside their doors under false pretenses, and then encourage staff to further mislead and even obstruct women once they are on a CPC’s premises. The CPCs disseminate print and online advertising that includes phrases such as “abortion counseling” and “abortion options.” The print advertising is often concentrated in areas where there are higher populations of students, women of color or low-income women. As part of this purposely vague advertising, CPCs regularly choose names that are confusingly similar to names of nearby abortion clinics; indeed, CPCs often locate themselves next to or across the street from an abortion clinic to add to the confusion. Once a woman enters a CPC, even one that is unlicensed and has no medical personnel, the staff may be wearing white lab coats, continuing the deception. Dressed in the guise of health-care professionals, CPC staff may provide medically inaccurate information. For example, women who have mistakenly entered a CPC seeking medical care to end a pregnancy have been told that they are too early in their pregnancies to have an ultrasound (even if they are not) and asked to return weeks later, substantially delaying needed medical care.

What does this mean for women who are seeking an abortion, access to contraception or prenatal care? It means that women are manipulated and shamed. It also means that women suffer concrete harms to their health, including exposure to the risk of sexually transmitted disease if they do not receive timely contraception, delays in ending a pregnancy that increase health risks and costs, and inability to obtain the prenatal care they need at the time they need it.

To protect the public health and address this consumer confusion, California enacted the FACT Act. As the U.S. Court of Appeals for the 9th Circuit noted in the opinion below, the California legislature found that CPCs use “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.” Further, the legislature found that CPCs “pose as full-service women’s health clinics” in order to lure women to their locations so that they can engage in further misdirection. The act covers both licensed and unlicensed centers providing pregnancy-related care. For licensed centers, which do provide some medical services, the act requires a written notice, either posted in the waiting room or provided to women directly in writing or digitally when they arrive at the CPC. The notice informs those who have come to the CPC that California has public programs that provide free or low-cost access to comprehensive family-planning services including contraception, prenatal care and abortion for eligible women, and provides a number to call to determine eligibility. For unlicensed centers, the act requires a notice on site and in any print or digital advertising stating that the CPC is not licensed as a medical facility by the state and that it “has no licensed medical provider who provides or directly supervises the provision of services.” Both disclosures are simple and accurate.

Under ordinary First Amendment principles, these provisions of the FACT Act are constitutional. Context is key in determining the appropriate level of review for compelled speech — the “level of scrutiny to apply to a compelled statement” turns on “the nature of the speech taken as a whole and the effect of the compelled statement thereon,” as the Supreme Court wrote in 1988 in Riley v. National Federation of the Blind of North Carolina. The U.S. Court of Appeals for the 4th Circuit cited Riley in 2014 in Stuart v. Camnitz and relied on a context-specific analysis to strike down a North Carolina law that required a physician providing abortion services to display ultrasound images to a patient, and then recite, in his or her own voice, specific information about the images dictated by the state. The law required the physician to do all of this during the course of the ultrasound itself and while the patient was partially disrobed on an examination table, regardless of whether the patient wanted to see the images or hear the information. A context-specific analysis here supports the holding below.

The 9th Circuit rightly concluded that the provision requiring licensed CPCs, which do provide some medical services, to post a sign in their waiting rooms about the availability of low-cost or free comprehensive reproductive health services is likely to survive intermediate scrutiny. Under intermediate-scrutiny analysis, remedying consumer deception and protecting the public health are certainly important state interests. And the provision is not more intrusive than necessary – it does not force staff at the CPC to speak the information in the notice in their own voices, for example. It is also effective for combating the problem at hand: Because of CPCs’ deceptive practices designed to make women believe they have come to a comprehensive reproductive health care clinic, and the misdirection that continues on site, women are delayed in receiving the care they need. The notice provides women who have been subjected to this deception with timely, factually accurate information about how to obtain that care, reducing any additional delays and therefore any additional harms to their health.

The notice required of unlicensed centers is equally constitutional. To the extent unlicensed centers must include disclosures about the scope of their services in advertising, such disclosures should be subject to rational basis review under well-settled law. And the notice such unlicensed centers are required to provide in their waiting rooms would survive under any level of scrutiny. Again, because of CPCs’ purposeful pattern of misdirection and deceptive advertising, some women who enter their doors do not realize that they have literally come to the wrong place. The notice informs women who are seeking medical services that such services are not actually available on site.

Finally, there is no basis for the CPCs’ claims of viewpoint discrimination. The FACT Act has the viewpoint-neutral goal of reducing consumer deception and protecting the public health. It discriminates among speakers based not on their viewpoints, but on the likelihood of consumer confusion. That the act may have a disproportionate impact on certain types of pregnancy-related centers is irrelevant for First Amendment purposes. That is what the Supreme Court recently held in McCullen v. Coakley, in which the court also stated that it is appropriate for legislatures to enact a limited solution to a specific problem, and that, indeed, legislatures should be encouraged to choose solutions that restrict less speech rather than more. In other cases, such as Christian Legal Society v. Martinez, the court has recognized that simply because speakers have a viewpoint-based objection to a law does not make the law itself discriminatory. It was not viewpoint discrimination for California to conclude that pregnancy-related medical centers that do provide free or low-cost access to comprehensive family planning services, prenatal care or abortion need not provide the notices specified in the act. The act simply targets the problem that it was designed to solve: misleading women.

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Symposium: “Hey California, stop telling us what to say at work!”

Symposium: “Hey California, stop telling us what to say at work!”Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the cert petition in NIFLA v. Becerra, on which this essay is based, and will be doing so again at the merits stage. Based on opposition to “crisis […]

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Symposium: “Hey California, stop telling us what to say at work!”

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the cert petition in NIFLA v. Becerra, on which this essay is based, and will be doing so again at the merits stage.

Based on opposition to “crisis pregnancy centers” — which provide pregnancy-related services with the goal of helping women make choices other than abortion — the California legislature passed a law that burdens the centers’ speech. Specifically, the new law requires licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “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.”

The law has an exception for clinics that actually enroll clients in these public programs, so it targets only businesses that decline to participate in what is supposed to be a voluntary state program.

Several crisis pregnancy centers sued to block the law, arguing that it violates their First Amendment rights by forcing them to express a message to which they are opposed. But the U.S. Court of Appeals for the 9th Circuit rejected their challenge, holding that the statute regulates only “professional speech” and therefore should be reviewed under intermediate First Amendment scrutiny, a relatively deferential standard.

That lower level of scrutiny may well have been outcome-determinative. The 9th Circuit didn’t reach the factual question of whether California could have distributed this message itself, but admitted that “even if it were true that the state could disseminate this information through other means, it need not prove that the Act is the least restrictive means possible” in order to satisfy intermediate scrutiny. Yet First Amendment restrictions are typically evaluated under the more rigorous “strict scrutiny” standard of review, with only certain narrow (and controversial) exceptions, such as for “commercial” speech.

Accordingly, in National Institute of Family and Life Advocates v. Becerra, the Supreme Court will decide whether licensed professionals can have their speech “commandeered” to advertise services that the government wishes to promote. The definition of professional speech that the lower court applied so it wouldn’t have to hold California’s feet to the full constitutional fire is dangerously overbroad and requires the court’s correction.

No one disputes that the speech of licensed professionals can be legitimately regulated in some circumstances. As relevant here, regulation of patient-physician speech is justified by the notion that when doctors speak to their patients, they assume a special obligation to communicate their expertise fully and truthfully. These regulations protect patients, who can’t be expected to have the same specialized knowledge as their medical providers. Medical doctors can be liable for malpractice if they fail to convey a diagnosis to a patient, for example, or if they fail to obtain informed consent before performing surgery. But such regulations can’t be extended beyond that bright line of specialized knowledge: If a state can require its doctors to read a pre-written advertisement to their patients, it can force them to say anything the state wants.

Some courts and scholars have argued that speech regulations of this type deserve their own doctrinal category — applicable to professional speech — and that a lower level of scrutiny should be applied to such regulations. Others have argued that no new doctrinal tier is necessary, because the compelling need for malpractice enforcement and informed-consent laws means that laws regulating professional speech would pass strict scrutiny. Rodney A. Smolla, the former dean of the University of Richmond and Washington and Lee Law Schools, argued in the West Virginia Law Review last year that “properly applied First Amendment principles would sustain the power of regulators to regulate professional speech in these instances. These are the very regulations that would typically be upheld even under application of the ‘strict scrutiny’ test.”

I tend to agree with Smolla, but that doctrinal debate need not be resolved to decide this case. That’s because the quality of true professional speech that justifies those limited regulations — namely, an asymmetry of expert knowledge as to diagnosis, treatment and risks — is entirely absent here. For that reason, the compulsory speech that California has mandated neither qualifies for intermediate scrutiny nor overcomes strict scrutiny.

Translated from legalese to English: (1) There’s nothing particularly “professional,” in the sense of “special-knowledge-demanding,” about the “California offers family-planning programs that include abortion” message that justifies the government’s forcing people to communicate it, and (2) even if the message is really, really important, there are other ways of conveying it.

Moreover, the 9th Circuit’s test ignores the threat posed by compulsory transmission of government-selected facts. Under that test, a state can compel unwilling physicians to recite any fact that may be relevant to “the health of [the state’s] citizens,” a definition broad enough to encompass essentially any statement the government chooses. If left to stand, the decision below would allow states to force professionals of all kinds to promote products and services they morally oppose. And, of course, the list of “professionals” would expand over time so that eventually states could claim power to compel any employer (or employee) to say anything in their employment capacity.

Compelling people to speak the government’s message at work is dangerous for precisely the reasons that compelled speech is always dangerous. Most importantly, it allows the government to put its thumb on the scale in a social debate, by conscripting individuals to help spread a particular message. (Tellingly, California has no equivalent law forcing clinics to advertise adoption agencies or other options for pregnant women.)

Lower courts have struggled for guidance in formulating the boundaries and definitions of true professional speech. This is the Supreme Court’s opportunity to prevent those definitions from being dangerously expanded to the point at which doctors effectively lose their First Amendment rights the moment they walk into their clinics.

Fundamentally, California’s law burdens speakers’ consciences by forcing them to promote programs that they morally oppose. That’s precisely the invasion of “the sphere of intellect and spirit” that Justice Robert Jackson warned of nearly 75 years ago in the first Supreme Court case to strike down a compelled-speech law, West Virginia Board of Education v. Barnette. The Supreme Court should reject the 9th Circuit’s dangerous professional speech doctrine and apply Barnette’s lesson to strike down this noxious law.

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Symposium: Ensuring accurate information for patients does not violate the First Amendment

Symposium: Ensuring accurate information for patients does not violate the First AmendmentErwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law. Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health care services does not violate the First Amendment. In many different ways, health-care professionals are already […]

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Symposium: Ensuring accurate information for patients does not violate the First Amendment

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health care services does not violate the First Amendment. In many different ways, health-care professionals are already required by law to provide information to patients so they can make informed choices. The California statute at issue in National Institute of Family and Life Advocates v. Becerra is no different.

The Reproductive FACT Act is quite straightforward. Licensed health-care facilities must post or distribute a notice that states, “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].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.

That’s all the FACT Act does. No doctor, other health-care professional or facility is required to provide contraceptives or abortions, or even provide referrals for these services. The new law simply ensures that clinics expose their patients to accurate information about the existence of state programs.

The FACT Act was created for the stated purpose of ensuring that “[a]ll California women, regardless of income, … have access to reproductive health services.” In the preamble to the bill, the legislature noted that more than 700,000 California women become pregnant each year and that one-half of these pregnancies are unintended. The legislature adopted the act because many women are not aware of the services available to them — and if they happen into a “crisis pregnancy center,” they’ll exit none the wiser.

The California legislature was concerned that there are 200 crisis pregnancy centers in California that hinder the ability of California women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.” The legislature found that crisis pregnancy centers, which include unlicensed and licensed clinics, employ “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.”

Crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have told pregnant women that their chances of getting breast cancer increase after an abortion. They have also warned clients that abortions are high-risk procedures that could well result in infection and death. Neither of these claims is true.

In light of this history, the California statute is clearly constitutional. The First Amendment burden on the crisis pregnancy centers is minimal: They are just required to post a notice. Their employees need not utter any words. The notices are entirely factual, informing patients about the existence of state programs. The required signs do not advocate anything. Requiring unlicensed facilities to disclose these facts to patients is just another way of ensuring that patients have full and accurate information.

Health-care professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. Whether the patient has a heart problem, wants plastic surgery or is considering how to handle an unintended pregnancy should make no difference. There is a constitutional right to abortion, after all.

More generally, businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. Courts consistently have upheld such disclosure requirements and rejected claims that they violate the First Amendment.

Thus, as the U.S. Court of Appeals for the 9th Circuit concluded, “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.” Even if the Supreme Court finds that the required posting is compelled speech, the traditional interest in ensuring that patients receive accurate and adequate information is sufficient to justify this law. A contrary holding would put in jeopardy all informed-consent laws in medicine and the countless laws that require posting of information in a myriad of contexts.

It is notable that the Supreme Court granted review only on the question of whether the California statute violates the speech clause of the First Amendment. The challengers to the law also raised in the federal district court and the 9th Circuit the issue of whether the law violates their free exercise of religion. Both lower courts rejected the religion claim based on the Employment Division v. Smith, which held that the free exercise clause of the First Amendment cannot be used to create an exception from a general law. In that case, Native Americans argued that an Oregon law prohibiting consumption of peyote infringed their free exercise of religion in that their religion required use of the hallucinogenic substance. The Supreme Court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and held that the free exercise clause could not be used to challenge the Oregon law because it was neutral, in that it was not motivated by a desire to interfere with religion, and because it applied to everyone in the state. Likewise, California’s Reproductive FACT Act is a neutral law of general applicability.

This also explains why NIFLA is distinguishable from Burwell v. Hobby Lobby Stores Inc. In Hobby Lobby, the Supreme Court held that it violated the Religious Freedom Restoration Act to require that a family-owned business provide contraceptive coverage for employees when doing so violates the owner’s religious beliefs. But there is no religion issue before the court in this case. Moreover, RFRA applies only to the federal government; it was declared unconstitutional as to state and local governments.

Most importantly, though, the California statute requires no more than that a notice be posted informing women of services that may be available to them from the government. This should be an easy case and the Supreme Court should uphold the California law.

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Symposium: If Justice Kennedy thought Colorado was “neither tolerant nor respectful” of a baker’s religious beliefs, how will he feel about California’s attack on pro-life pregnancy centers?

Symposium: If Justice Kennedy thought Colorado was “neither tolerant nor respectful” of a baker’s religious beliefs, how will he feel about California’s attack on pro-life pregnancy centers?John J. Bursch is the founder of Bursch Law PLLC, a Michigan-based appellate boutique. He submitted an amicus brief in support of the crisis pregnancy centers’ cert petition in National Institute of Family and Life Advocates v. Becerra. The Supreme Court is taking an unusually hard look at government-compelled speech this term. The recent oral […]

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Symposium: If Justice Kennedy thought Colorado was “neither tolerant nor respectful” of a baker’s religious beliefs, how will he feel about California’s attack on pro-life pregnancy centers?

John J. Bursch is the founder of Bursch Law PLLC, a Michigan-based appellate boutique. He submitted an amicus brief in support of the crisis pregnancy centers’ cert petition in National Institute of Family and Life Advocates v. Becerra.

The Supreme Court is taking an unusually hard look at government-compelled speech this term. The recent oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was our first window into what the justices are thinking, and how they might view National Institute of Family and Life Advocates v. Becerra, the upcoming argument involving California’s Reproductive FACT Act.

For those who have taken a long sabbatical from all legal news, the Masterpiece case involves cakeshop owner Jack Phillips, who sketches, sculpts and paints cakes as art. Phillips serves all customers, but because of his faith, he cannot express every customer’s message. He will not create cakes with vulgar language or slurs. He will not create cakes with Halloween themes. And he will not create custom-made cakes to celebrate a same-sex wedding ceremony, because he believes that God ordained marriage between one man and one woman.

The case began when a same-sex couple entered Phillips’ shop and asked him to create a cake for their wedding ceremony. Phillips told the couple that he would sell them any pre-made cake he had in his cooler; he would also sell them cupcakes or cookies or brownies or anything else on his shelf. But he could not custom-design a cake for their ceremony because of his religious beliefs. The declination resulted in a government order that compelled Phillips to make the cake, undergo sensitivity training with his employees — many are family members — and report regularly to the commission regarding his compliance.

At oral argument, in response to Colorado’s argument that Phillips had engaged in discrimination, Justice Anthony Kennedy gave a rather stern civics lecture about the importance of tolerance:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.

It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

Kennedy’s rebuke of Colorado brings us to NIFLA and California’s Reproductive FACT Act. The act targets non-medical, unlicensed pro-life organizations that provide emotional and financial support to pregnant mothers who elect to keep their babies rather than abort them. The act requires these organizations to provide extensive, written disclaimers stating that they are not licensed medical organizations, and it requires licensed medical centers that do not provide abortion to provide written notice to all clients about how the clients can obtain a state-funded abortion. These obligations are not imposed on any other organizations and are only targeted at those committed to fostering life from conception.

The act is one of numerous pro-choice laws California has enacted. California clinics and healthcare providers are prohibited from giving parents any information about their children’s medi­cal treatment, questions or prescriptions for contracep­tion unless the child consents. Minors can also obtain an abortion without notifying their parents or any other adult. If a minor is unable to pay, California will provide the funding. California has enacted statutes that “protect” pregnant mothers from pro-life counselors who seek to communicate truthful information about the conse­quences of abortion. And a 2014 California law dramatically expanded the supply of abortion providers in California by authorizing nurse practitioners, certified nurse midwives and physician assistants to perform first-trimester abortions through “vacuum aspiration,” a procedure in which a suction catheter is inserted in utero to extract a preborn baby. In the words of the National Abortion Federation’s president, this law cements California’s reputation as “the gold standard” for access to abortion.

In thinking about California’s compelled-speech law for pregnancy resource centers and Kennedy’s lecture to Colorado in the Masterpiece case, one can’t help but be reminded of the Supreme Court’s poetic 1943 statement in West Virginia Board. of Education. v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, national­ism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”

It seems likely, then, that Kennedy will conclude that such orthodoxy is precisely what California politicians prescribed with the Reproductive FACT Act. The act was passed with the admitted purpose of targeting pro-life pregnancy resource centers — whose views often flow from their religious faith — based on the centers’ viewpoint that “discour­age[s] abortion.” The act forces the centers to be spokespersons for the abortion industry via compelled speech — specifically, the posting of notices directing women how to obtain a state-funded abortion, and the required utterance of the obvious fact that the centers do not provide medical treatment. The second provision is a command to dissuade clients; the first is anathema to organizations whose religiously motivated speech and conduct are intended to save lives, not to take them.

In 2013, in Agency for International Development v. Alliance for Open Society International, the Supreme Court said that the government could not condition funding on a recipient’s promise to express a message; had such a policy been enacted as a direct speech regulation, it would “plainly violate the First Amendment,” because “freedom of speech prohibits the govern­ment from telling people what they must say.” Yet telling pregnancy resource centers what they must say is the Reproductive FACT Act’s entire purpose.

Perhaps the most famous of the Supreme Court’s decisions involving government-compelled speech is Wooley v. Maynard, the 1977 citizen challenge to New Hampshire’s statute making it a crime to obscure the words “Live Free or Die” on the state’s license plates. As it struck down the New Hampshire statute, the court recognized that a “system which secures the right to proselytize religious, politi­cal and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” In other words, the “right to speak and the right to refrain from speak­ing are complementary components of the broader concept of ‘individual freedom of mind.’”

Describing New Hampshire’s requirement, the Supreme Court noted that it had the effect of “requir[ing] [state citizens to] use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.” Such coercive conduct is unconstitutional: “The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

The Wooley court acknowledged New Hampshire’s professed interest in requiring the license-plate speech — promoting appreciation of history, individual­ism and state pride — but did not find the interest sufficiently compelling to justify the regulation. “[W]here the State’s interest is to disseminate an ideol­ogy, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.”

It is difficult to escape the conclusion that, notwithstanding California’s protestations that pregnancy resource centers engage in misleading advertising, the Reproductive FACT Act was motivated by an interest in disseminating a pro-choice ideology. As a result, California can expect tough sledding at the argument, which will likely take place in late February. You can almost hear Kennedy: “It seems to me that California has been neither tolerant nor respectful of these centers’ religious beliefs. Did you not hear what I said on this topic in Masterpiece?!”

Assuming NIFLA prevails, the aftermath may actually be more interesting. Some commentators have suggested that if California cannot force pregnancy resource centers to proclaim how to procure a government-paid abortion, then pro-life states cannot force abortion clinics to conduct ultrasounds and provide truthful information about the growing baby at its particular gestational age. There is some intuitive appeal to that suggestion, but it fades with a little more consideration. Abortion clinics engage in surgical medical procedures. If the government cannot force doctors and surgeons to disclose truthful, relevant information about a medical procedure so the patient can make an informed decision, then we all have big problems. In contrast, the entire purpose of a pregnancy resource center is to support a mother in her choice not to undergo a medical procedure. Hence the difference in what the government can require.

Regardless, the Reproductive FACT Act is unlikely to stand.

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Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

Justices take on First Amendment challenge to state abortion disclosure laws: In Plain EnglishIn 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with […]

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Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

The centers went to court, arguing that the law violates the First Amendment. First, they contended, requiring medical centers to post signs containing a phone number for information about low- or no-cost abortions is at odds with the anti-abortion message they want to convey. Moreover, they said, the law requires only groups that are opposed to abortion to relay the message, singling them out based on their views. Second, they asserted, the disclosures required for centers that are not licensed to provide medical services have two undesirable effects: The disclosures are so extensive and burdensome “that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media”; and those centers are compelled to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”

A federal district court rejected the centers’ arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. But last month the Supreme Court agreed to decide whether the disclosures required by the law violate the First Amendment’s free speech clause; it declined to weigh in on whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.

The centers are represented by lawyers for the Alliance Defending Freedom, which also played key roles in (among others) two recent high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs; and Zubik v. Burwell, a challenge by religious nonprofits to the workarounds offered to those who objected to the Affordable Care Act’s birth-control mandate. They argue that the 9th Circuit should have used the most stringent test – known as “strict scrutiny” – to review the Reproductive FACT Act’s constitutionality because the law is based on the content of the centers’ speech and discriminates based on their viewpoint.

When that standard is used, the centers contend, the law cannot survive. It places enormous burdens on the centers, even though California has not provided any evidence suggesting that the centers are actually causing any harm, and it applies to all pregnancy centers, even if they are not doing anything misleading. If the state were truly concerned that pregnant women aren’t getting information about state-funded options, the centers conclude, it could publicize that information itself.

California counters that the act targets two problems: Women who can’t afford medical care aren’t aware of the publicly funded options available to them, and when they go to these centers they are often confused about whether they are getting care and advice from medical professionals. The notices that the medical centers are required to provide, the state argues, fall “well within the First Amendment’s tolerance for the regulation of the practice-related speech of licensed professionals.” And the notices that the unlicensed centers must provide, the state continues, are permissible to prevent confusion about the nature of their care.

The justices are expected to hear oral argument in the case early next year, with a decision by the end of June. Their ruling could have ripple effects well beyond California: As Dahlia Lithwick and Mark Joseph Stern have observed at Slate, over a dozen states have laws that are intended to discourage women from having abortions by requiring abortion providers to tell their patients, for example, that there is a link between abortion and breast cancer or that abortion increases the risk of suicide. It is not clear what a ruling for the centers in this case would mean for those laws, but the potential parallels mean that a lot of people will be watching this case closely.

This post was originally published at Howe on the Court.

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No new grants today

No new grants todayAfter adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring […]

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No new grants today

After adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring employment discrimination “because of … sex” applies to discrimination based on sexual orientation.

The question arose in the case of Jameka Evans, who left her job as a security officer at a Georgia hospital, claiming that she had been harassed and passed over for a promotion because she is gay. The lower courts ruled that her case could not go forward because Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination based on sexual orientation. The U.S. Court of Appeals for the 11th Circuit also ruled, however, that Evans could bring a claim alleging that she had been a victim of discrimination because she did not conform to gender stereotypes.

Evans then went to the Supreme Court, urging it to take up her case to resolve conflicting rules among the federal courts of appeals. Although the justices denied review after considering the case at just one conference, a procedural quirk in the case may have contributed to the decision to deny certiorari: The hospital where Evans worked (as well as the individual employees named in the lawsuit) told the justices that it had not participated in the case in the lower courts and would not do so in the Supreme Court even if review were granted. Evans and her lawyers responded that the hospital’s lack of participation should not thwart Supreme Court review, but the justices may have opted to wait for the issue to come to them again in a case with fewer complications.

The justices did not act on the case of Abel Hidalgo, the Arizona death-row inmate (represented by Neal Katyal, the former acting U.S. solicitor general) who has asked the Supreme Court to weigh in on the constitutionality of the death penalty. After considering Hidalgo’s cert petition at their December 1 conference, the justices asked the Arizona courts to send them the record in the case – which can be a sign either that at least one justice is looking at the case more closely or (especially in death-penalty cases) that someone is writing an opinion in the case. The most likely scenario seems to be that Justice Stephen Breyer, who in the past few years has repeatedly suggested that the Supreme Court should tackle the question now presented by Hidalgo’s case, is writing an opinion regarding the denial of review, but Hidalgo and we will almost certainly have to wait until the new year for an answer.

The justices’ next regularly scheduled conference is January 5, 2018.

This post was originally published at Howe on the Court.

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