NIFLA v. Becerra: SCOTUS Fails to Protect Women from the Deceptive Practices of Anti-Abortion Counseling Centers

Photo credit: Lorie Shaull

On Tuesday, the Supreme Court issued a damaging and extremely disappointing 5-4 decision in NIFLA v. Becerra.

We should all be able to agree that pregnant women deserve timely and accurate information about their pregnancies and the full range of options available to them, but instead, the Court struck down a California law which did just that. The Reproductive FACT Act is a straightforward consumer protection law, which requires licensed anti-abortion counseling centers to provide disclosures that inform women about comprehensive reproductive health care services, including prenatal care, birth control, and abortion, offered by the state of California. The law also requires unlicensed anti-abortion counseling centers to disclose whether they are medical professionals. It was passed to counteract the deceptive practices of these centers, which mislead women, lie about medical facts, and delay access to comprehensive reproductive or prenatal care – all of which harm women.

 Justice Thomas authored the infuriating majority opinion, which creates a double standard for anti-abortion counseling centers and real medical professionals that provide abortion. Justice Thomas tried to draw a distinction between the First Amendment protections that are available to anti-abortion counseling centers and those afforded to abortion providers, essentially because anti-abortion counseling centers are not performing medical procedures, but abortion clinics are providing medical procedures as legitimate medical facilities.
In the words of Justice Breyer: “Really?”

As Justice Breyer noted in his dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan, this nonsensical distinction is total hypocrisy since the Court has upheld state laws that require scripts for doctors counseling patients prior to abortion. Justice Breyer wrote, “[i]f a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context.” “No one doubts that choosing an abortion is a medical procedure that involves certain health risks…[b]ut the same is true of carrying a child to term and giving birth.”

The majority opinion also states that California’s interest in creating the disclosure requirement for unlicensed anti-abortion counseling centers is “purely hypothetical” because their services don’t require a medical license.

Justice Breyer was skeptical of this rationale in his dissent, writing that “[t]here is no basis for finding the State’s interest ‘hypothetical.’” I agree, particularly given that this case was really about the deceptive practices of anti-abortion counseling centers and the harm that they cause women. The services provided by unlicensed anti-abortion counseling centers are not innocuous, as Justice Thomas would have you believe. The only reason why the the FACT Act was necessary is because the actions of both licensed and unlicensed anti-abortion counseling centers can cause harm. That’s why the National Women’s Law Center, along with 50 other reproductive rights, civil rights, and social justice organizations, filed an amicus brief that highlights the deceptive practices of anti-abortion counseling centers and shares the stories of women who faced real harm as the result of visiting such centers.

It’s also important to note that Justice Thomas’ majority opinion was joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. Not only will this decision negatively impact women seeking pregnancy-related information and services, it’s a telling reminder as to what it means to have a Trump appointee on the most powerful court in the nation. With Justice Kennedy retiring this summer, reproductive rights advocates won’t just be fighting the false information disseminated by anti-abortion counseling centers, but likely a slew of other battles to protect access to reproductive rights. But regardless of Tuesday’s decision and future, NWLC and other reproductive rights advocates will continue to fight.