Why the First Amendment Protects Fake Medical Clinics But Not Physicians

Here’s an irony for you. According to the Supreme Court’s recent decision in NIFLA v. Becerra, the government is allowed to tell doctors—who have completed years of postgraduate education and training–exactly what information they have to provide to pregnant women in their care. By contrast, crisis pregnancy centers—which are religiously-run “clinics” that may look like doctors’ offices but really exist only to dissuade women from choosing abortion—are allowed to provide incomplete or inaccurate information to women about medical matters. Under the Supreme Court’s understanding of the First Amendment, the government cannot force those clinics to let women know that comprehensive reproductive health services are available elsewhere—or even that they are not actually licensed medical clinics. Indeed, this is precisely what the state of California had tried—and failed—to require with a state law called the FACT Act.

How can the United States Constitution possibly be understood to require such a lopsided and counterintuitive set of rules? As Justice Clarence Thomas explained in his NIFLA opinion, there is nothing wrong with requiring doctors to get informed consent before performing a medical procedure. In the Court’s view, the words spoken by doctors in the course of getting informed consent are only “incidental” to the procedure itself. Therefore, it’s as if the state is really regulating conduct (medical treatment), rather than speech. Indeed, as I explain in a recent law review article, many of the disclosures that states require doctors to give to patients seeking abortions are outright false or at the very least misleading, yet courts have mostly upheld them against legal challenges.

But since crisis pregnancy centers do not, in the Court’s view, provide medical services, their speech is pure speech. As such, it has the highest degree of protection under the First Amendment—meaning the government can’t ban that speech, restrict its content, or even compel particular factual statements. What makes the California disclosures particularly troublesome, Justice Thomas claimed, is that they are on a controversial topic.

Justice Thomas’s logic is fundamental flawed, however. First, as Justice Breyer pointed out in his dissent, the disclosures that California was seeking to require involve only factual information, not controversial or ideological statements. Second, and more importantly, crisis pregnancy centers are, in fact, providing medical services. Some of them are licensed health care clinics. Others are unlicensed but still provide pregnancy testing, ultrasounds, and information and advice about whether to continue a pregnancy.

How could Justice Thomas have ignored such an obvious fact? How could he assert, as he does in his opinion, that informing pregnant women about the availability of comprehensive health care services is not a “health and safety” regulation, or that it is not “factual and uncontroversial”?

Perhaps Justice Thomas is relying on an unspoken assumption that abortion is a controversial, medical intervention, but pregnancy is non-medical and a natural state of affairs for women. This is a viewpoint that goes back to at least the nineteenth century, when anti-abortion activists argued that abortion is harmful because it undermines women’s duty to procreate. As Reva Siegel explained in a 1992 law review article, now considered a classic, nineteenth-century anti-abortion crusaders claimed that, due to women’s God-given capacity to reproduce, it was a “physiological sin” either to prevent or to interrupt a pregnancy.

Later, in the 1980s, Kristin Luker published a seminal study of the abortion debate, in which she identified a similar (if more modern) line of thinking by anti-abortion activists in the twentieth century. According to Luker, many individuals who oppose abortion derive that opposition from their belief that motherhood is the primary role and responsibility of women, and that pregnancy and parenting should take precedence over a woman’s other goals, such as having a career or getting an education.

Justice Thomas’s opinion in NIFLA, by suggesting that only abortion is a medical procedure requiring fully informed consent, appears to pick up on this traditional line of anti-abortion thinking. It assumes, as Justice Breyer noted, that while abortion requires fully informed consent, there is no need for crisis pregnancy centers to inform a woman about alternatives to, or health risks of, pregnancy and child bearing. Rather, they are natural, assumed conditions for women. This, despite the fact that pregnancy carries significantly more health risks than abortion, as study after study has shown.

The Supreme Court’s decision in NIFLA thus creates an odd asymmetry between how licensed medical professionals are treated and how fake pregnancy clinics are treated under the First Amendment. Underlying that asymmetry is a set of ideologically charged, antifeminist beliefs about pregnancy and abortion. They have no place in First Amendment decision-making, and they should, at long last, be put to rest.

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Jessie Hill is the Ben C. Green Professor of Law and Associate Dean for Academic Affairs at the Case Western Reserve University School of Law. She specializes in reproductive rights law.

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