Commentary: Kennedy’s Supreme Court departure a death knell for Roe v. Wade

The Supreme Court’s headline-grabbing ruling to uphold President Trump’s travel ban on citizens of several Muslim-majority countries in the face of overwhelming evidence that it was motivated by religious prejudice has overshadowed another Supreme Court decision that also deserves attention – especially now that Justice Anthony Kennedy is retiring from the bench.

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Kennedy is often the pivotal vote on a nine-member court that already is fundamentally hostile to the abortion rights guaranteed in the landmark case of Roe v. Wade. His departure will enable Trump to nominate a conservative replacement, skewing the court to the right for decades as the remaining justices serve out their lifetime tenures.

Kennedy ruled with the majority in the court’s 5-4 Tuesday decision in NIFLA v. Becerra, agreeing that Christian-based pregnancy centers do not have to notify clients of the availability of state-funded abortions – a decision hailed as a victory by anti-abortion activists. However, the NIFLA case was argued on the basis of free speech, and Kennedy has been instrumental in protecting abortion and gay rights in his three decades on the bench.

The court’s decision in NIFLA v. Becerra is instructive in that it could have wide-ranging implications for reasonable regulations passed by state and local governments trying to provide important information to patients, consumers and workers on issues beyond abortion. On another level, it could also mark the start of more aggressive litigation by abortion opponents hoping to get cases to be heard by a post-Kennedy Supreme Court.

The NIFLA decision concerns a California law passed in response to “crisis pregnancy centers” that could be mistaken for licensed medical clinics. If they are not licensed medical clinics, the statute requires them to make this clear in multiple languages in advertisements for the clinic. If the centers are licensed medical clinics, they are required to post the information that “free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women” might be available. The centers challenged both provisions as violating their First Amendment rights to free speech.

It does not violate the First Amendment per se for the state to require businesses or clinics to provide information to their customers or patients. The state can require restaurants to inform customers on their menus that food not fully cooked creates a risk of illness, for example. And doctors and other professionals are required by state and local regulations to make any number of disclosures. In the 1985 Zauderer ruling, the Supreme Court held that a lawyer could be sanctioned for not providing pertinent information in an advertisement, contrary to state regulations.

A majority of the court, however, held that these particular disclosure requirements were unconstitutional. According to Justice Clarence Thomas, the regulation of licensed clinics is unconstitutional because it is regulates speech based on content. Regulations that require the expression of a specific message or that treat speech differently because of its content are presumptively unconstitutional. According to the majority ruling, because requiring the crisis pregnancy centers to inform women about the availability of subsidized family planning services “alters the content” of their speech, it is a regulation based on viewpoint and hence should be presumed to be unconstitutional on its face.

With respect to the disclosure requirements for unlicensed clinics, the court held that they were unconstitutional even if they are considered under the less demanding Zauderer standard, because they were “unduly burdensome” on the centers in that the level of detail would make some advertisements difficult or impossible. (In Thomas’ example, a two-word “choose life” billboard would require 29 words of disclosure.) Thomas also expressed concern that crisis pregnancy centers were singled out as presenting First Amendment concerns.

These holdings may seem plausible on their face, but are problematic in context. As Justice Stephen Breyer’s dissent argues, the opinion is likely to produce a flood of litigation. Virtually all requirements to disclose information potentially alter the speech of professionals or businesses in some way. The court’s new test, as Breyer observes, “invites courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic regulation” without setting clear standards.

But the decision becomes even more problematic when it comes to abortion.

According to the court, doctors can be forced to read anti-abortion messages they are unlikely to agree with in the guise of presenting medical information, and women can be forced to listen before being allowed to obtain a medical procedure they desire. But merely requiring crisis pregnancy centers to post information about the availability of family planning services is unconstitutional.

How does the court explain this glaring contradiction? According to Thomas, the California requirements are different because they are not related to a “medical procedure.” “Really?” responded a seemingly incredulous Breyer in his dissent. Maintaining a pregnancy to term and childbirth both entail substantial health risks and generally require significant medical care and testing, and indeed childbirth is 14 times more likely to be fatal for a woman than obtaining an abortion. “Health considerations,” Breyer concludes, “do not favor disclosure of alternatives and risks associated with the latter but not those associated with the former.”

The decision, in other words, cannot be defended on the basis of the five judges’ support for the principles of the First Amendment – it simply places pro-life speech in a favored position. In the name of content-neutrality – the obligation not to favor one viewpoint over another –  the court is being anything but neutral.

Combined with the court’s recent refusal to review a draconian Arkansas abortion law that would force two of the state’s three abortion clinics to close – perhaps because the liberal justices themselves feared the case being supported by a more conservative bench – this decision is bad news for supporters of reproductive freedom. Kennedy’s departure makes the news even worse.

About the Author

Scott Lemieux is a lecturer in the Department of Political Science at the University of Washington. @LemieuxLGM

The views expressed in this article are not those of Reuters News.