Symposium: NIFLA v. Becerra — 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.

Posted in: Symposium before the oral argument in NIFLA v. Becerra, Featured

CLICK HERE FOR FULL VERSION OF THIS STORY