Commentary on National Institute of Family and Life Advocates v. Becerra

National Institute of Family and Life Advocates (“NIFLA”) v. Becerra involved a free speech challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act). This law mandated disclosures designed to facilitate women’s timely access to pregnancy-related services, including abortion, and was enacted in response to concerns that pregnant women were not being informed about where and how they could get this care. This has been a particular problem for women seeking care at facilities commonly known as Crisis Pregnancy Centers (CPCs) – licensed or unlicensed facilities that provide only a limited scope of pregnancy-related care and counseling with the goal of discouraging abortion. Many CPCs employ techniques that undermine women’s reproductive freedom and health: projecting misleading images as comprehensive reproductive health providers to lure women who are in crisis because of an unintended pregnancy and want an abortion, for the sole purpose of changing their minds; giving inaccurate or misleading information about abortion risks to make women fearful; and using language and other fetal information to try to elicit an emotional rejection of abortion. Not only is this unethical because it creates a coercive environment that constrains reproductive choice, it can have serious health consequences if it causes women to delay care until it becomes more dangerous or difficult to get. This exacerbates harm experienced by women already vulnerable to informational and access barriers due to poverty, education level, age, geographic and social isolation, lack of regular provider, health status, and discrimination—the very women targeted by CPCs. This Commentary first provides background explaining how the FACT Act was the latest step by California to advance reproductive justice by actively working to eliminate the informational and other structural barriers faced by women vulnerable to systemic oppression and subordination. The background section also frames the interests that were at stake in NIFLA: Not only would the outcome shape women’s health care encounters in California and states with similar laws; NIFLA was also closely watched because of its implications for government speech as a tool of reproductive regulation more broadly. Next, this Commentary describes the reasoning of the original majority opinion of the Supreme Court, authored by Justice Clarence Thomas, finding that the FACT Act likely violated the First Amendment. Paradoxically, Justice Thomas invalidated California’s ideologically neutral information law designed to protect women’s access to the full scope of reproductive health care, while taking the opportunity to solidify a First Amendment exception for ideological laws that force providers to deliver anti-abortion messaging. In the process, Justice Thomas virtually erased women’s interest from the analysis, despite the fact that women’s reproductive health, equity, and autonomy interests were at the heart of this dispute. This made NIFLA ripe for a reconceptualization of the constitutional question from a feminist perspective, and the final parts of this Commentary analyze the feminist rewrite by Professor Sonia Suter, as Justice Suter. In contrast to the original opinion, Suter’s rewrite makes visible the significant health and reproductive interests justifying the state’s disclosure requirements, while exposing the abortion exceptionalism and sex stereotyping that seemed to animate Justice Thomas’s opinion. By centering the lived experiences of the women the FACT Act was designed to support, Suter foregrounds principles of reproductive justice and gender equity that should inform the constitutional balancing in this case. In the process, Suter also provides a more coherent and principled test for free speech challenges to government regulation of health providers generally.