Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the cert petition in NIFLA v. Becerra, on which this essay is based, and will be doing so again at the merits stage.

Based on opposition to “crisis pregnancy centers” — which provide pregnancy-related services with the goal of helping women make choices other than abortion — the California legislature passed a law that burdens the centers’ speech. Specifically, the new law requires licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.”

The law has an exception for clinics that actually enroll clients in these public programs, so it targets only businesses that decline to participate in what is supposed to be a voluntary state program.

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Wednesday round-up

By on Dec 13, 2017 at 7:10 am


  • At Sports Handle, Ryan Rodenberg recounts his experience attending oral argument last week in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting.
  • The National Law Journal’s (subscription or registration required) continuing coverage and analysis of its research on Supreme Court clerks includes Karen Sloan’s profile of “four unlikely SCOTUS clerks” here and Tony Mauro’s report on Jones Day’s success in recruiting departing clerks here.
  • To mark yesterday’s anniversary of the Supreme Court’s 2000 decision in Bush v. Gore, Subscript offers a graphic explainer for the case, highlighting parallels between Bush v. Gore and Gill v. Whitford, a pending partisan-gerrymandering case in which “[t]he biggest issue … is whether the Court will rule the case nonjusticiable.”
  • At Law360 (subscription required), Vidya Kauri analyzes the oral argument in Marinello v. United States, in which the justices will consider the limits of tax-law obstruction charges, noting that several justices “appeared to take the position that the government’s interpretation of the so-called omnibus clause in Section 7212(a) of the Internal Revenue Code may be too far-reaching.”
  • At Justia’s Verdict blog, Michael Dorf weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[t]rading off liberty for equality … can be difficult in some cases, [b]ut Masterpiece Cakeshop is not one of those cases.”

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Petition of the day

By on Dec 12, 2017 at 10:35 pm

The petition of the day is:


Issues: (1) Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit’s three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson’s appeal, where the appeal sought review of the district court’s determination that a reasonable jury could find that Dr. Johnson violated respondent’s right to due process.

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health care services does not violate the First Amendment. In many different ways, health-care professionals are already required by law to provide information to patients so they can make informed choices. The California statute at issue in National Institute of Family and Life Advocates v. Becerra is no different.

The Reproductive FACT Act is quite straightforward. Licensed health-care facilities must post or distribute a notice that states, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.

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John J. Bursch is the founder of Bursch Law PLLC, a Michigan-based appellate boutique. He submitted an amicus brief in support of the crisis pregnancy centers’ cert petition in National Institute of Family and Life Advocates v. Becerra.

The Supreme Court is taking an unusually hard look at government-compelled speech this term. The recent oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was our first window into what the justices are thinking, and how they might view National Institute of Family and Life Advocates v. Becerra, the upcoming argument involving California’s Reproductive FACT Act.

For those who have taken a long sabbatical from all legal news, the Masterpiece case involves cakeshop owner Jack Phillips, who sketches, sculpts and paints cakes as art. Phillips serves all customers, but because of his faith, he cannot express every customer’s message. He will not create cakes with vulgar language or slurs. He will not create cakes with Halloween themes. And he will not create custom-made cakes to celebrate a same-sex wedding ceremony, because he believes that God ordained marriage between one man and one woman.

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Tuesday round-up

By on Dec 12, 2017 at 7:19 am

Yesterday the court issued additional orders from its December 8 conference; the justices did not add any cases to their docket, and they declined to review a case asking whether federal law prohibits employment discrimination on the basis of sexual orientation. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage of the cert denial in Evans v. Georgia Regional Hospital comes from Greg Stohr at Bloomberg, Andrew Chung at Reuters, Adam Liptak for The New York Times, Richard Wolf for USA Today, Lyle Denniston at his eponymous blog, and Robert Barnes for The Washington Post, who reports that “the case at hand … had procedural problems that some argued made it a troublesome test case for the issue.” Commentary comes from Ross Runkel at his eponymous blog.

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Posted in Round-up

Petition of the day

By on Dec 11, 2017 at 8:16 pm

The petition of the day is:


Issues: (1) Whether the two-part standard of reviewing expert-admissibility rulings employed by the U.S. Court of Appeals for the 9th Circuit, along with the U.S. Courts of Appeals for the 3rd and 7th Circuits, improperly empowers these courts to reverse district court decisions to exclude evidence without “the deference that is the hallmark of abuse-of-discretion review”; and (2) whether an expert’s qualifications and mere invocation of a scientific methodology can be sufficient to require admission of his testimony, as the U.S. Court of Appeals for the 9th Circuit concluded, or whether Federal Rule of Evidence 702 requires that a witness, no matter how qualified, must also satisfy the court that his methodology was “reliably applied to the facts of the case,” as several other circuits have held.

In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

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No new grants today

By on Dec 11, 2017 at 11:03 am

After adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring employment discrimination “because of … sex” applies to discrimination based on sexual orientation.

The question arose in the case of Jameka Evans, who left her job as a security officer at a Georgia hospital, claiming that she had been harassed and passed over for a promotion because she is gay. The lower courts ruled that her case could not go forward because Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination based on sexual orientation. The U.S. Court of Appeals for the 11th Circuit also ruled, however, that Evans could bring a claim alleging that she had been a victim of discrimination because she did not conform to gender stereotypes.

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OT2017 #9: “Peak SG”

By on Dec 11, 2017 at 10:41 am

The exciting December sitting may be over, but we’re still here to let you know what you missed. We catch you up on the oral argument in Masterpiece Cakeshop, everybody’s favorite cake-flavored battle between religious liberty and gay rights. We’ll answer your burning questions: Did Justice Anthony Kennedy tip his hand as to which side he’s on? Does Justice Elena Kagan think there’s a constitutional difference between cake artists and makeup artists? Can the chief justice figure out a way to let the cake shop win without undermining protections against racial discrimination? Most importantly, does Justice Stephen Breyer realize that mole and guacamole aren’t the same thing?

We’re also joined by recurring guest contributor Nina Totenberg of NPR, who tells us what she noticed in the courtroom these past two weeks—and what she talked about with New Jersey Governor Chris Christie, who was in the audience for Christie v. National Collegiate Athletic Association. And if that’s not enough, we also discuss the American Civil Liberties Union’s response to the government’s controversial cert petition in Hargan v. Garza, the heated abortion-plus-undocumented-immigration dispute in which the solicitor general asked the Supreme Court to consider imposing sanctions on opposing counsel. And as always, we answer some calls from the hotline. It’s an action-packed episode worthy of an action-packed sitting of the court!

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