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Pro-life and pro-choice activists gather at the Supreme Court for the National March for Life rally in Washington January 27, 2017. REUTERS/Aaron P. Bernstein - RC18896B8B20

Analysis: In the Supreme Court this month, abortion is the elephant in the (court)room

Abortion-related issues never seem far from the U.S. Supreme Court’s docket. This month, in a First Amendment free speech challenge, abortion is the elephant in the courtroom.

Most of the recent abortion cases reaching the justices have involved state restrictions on abortion clinics and the women seeking abortions. But this case, National Institute of Family and Life Advocates v. Becerra, is different. A group of anti-abortion crisis pregnancy centers is challenging a California law that requires them to notify their clients of publicly-funded services available to income eligible women — including family planning, contraceptives, prenatal care and abortions.

The case, known by its acronym, NIFLA, is one of two biggest challenges in the justices’ two-week session beginning March 19. Here’s what we’re watching.


In 2015, California lawmakers passed the FACT Act, shorthand for its much longer, official title: California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (whew!). The lawmakers reportedly sought to address two problems.

First, millions of women in the state needed publicly funded family planning services, contraceptive services and education, abortion services and prenatal care. But thousands of those women, when they became pregnant, were unaware of the public programs offering those services, according to legislative findings.

Second, the legislature heard that some crisis pregnancy centers were interfering with the ability of California women to get accurate information. Some centers “pose as full-service women’s health clinics but aim to discourage and prevent women from seeking abortion,” according to the legislative history, and some use “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-formed, time-sensitive decisions about critical health care.”

The FACT Act requires unlicensed centers to display a notice saying that the facility is not a state licensed medical facility and has no licensed medical provider who supervises or directly provides services. Licensed centers must post and disseminate notices to clients that the state has public programs providing free or low-cost comprehensive family planning services, prenatal care and abortion for eligible women.

The centers argue that the notices compel them to disseminate information that violates their chosen message of encouraging birth and discouraging abortion. They argue that because the notices are compelled speech and are not content or viewpoint neutral, the justices should apply “strict scrutiny” to the state law. And under that test — the Constitution’s toughest test — they say the law must be struck down.

But California is arguing that the court has a lesser standard of review for regulations of commercial and professional speech — which is exactly what these notices are, the state says. The law passes muster under these standards, California says. The unlicensed facility notice is a neutral disclosure statement of fact, according to the state. And the requirement to provide information about public services is also neutral and targeted to reach women in need, it says.

Why it matters: The case is scheduled for March 20. The Trump Administration’s Justice Department has filed a brief in which it argues that the unlicensed facility disclosure is constitutional but the licensed facility disclosure, requiring centers to notify their clients of free or low-cost public services, is not.

The Roberts Court is a very strong pro-First Amendment court on speech issues. The licensed disclosure statement may present the tougher question for the justices, particularly for the strongest speech advocates: Justice Anthony Kennedy and Chief Justice John Roberts. They likely will be pressing lawyers on each side on what impacts these notices have on the centers.

Benisek v. Lamone

The second closely-watched case this month — Benisek v. Lamone — takes the justices back to a topic that has been dominating much of their work this term: redistricting and partisan gerrymanders.

Most court watchers expected the partisan gerrymander challenge to Wisconsin’s redistricting of its state legislative seats to be the big partisan gerrymander case of the term. The Republican-controlled legislature virtually cemented its political control in the state for more than a decade longer, even when Democrats captured a majority of voters. The case was argued back in October and no decision has been issued yet.

But the justices surprised everyone by adding the Benisek case, which will be argued March 28. In this case, Democrats are the alleged “bad guys” for redrawing Maryland’s 6th congressional district to shift political control from Republicans to Democrats.

Those challenging the new district sought an injunction blocking the redrawn lines. They claimed that the redistricting violated their First Amendment right of political association. A three-judge district court refused to block the use of the map because, it said, the challengers failed to show that the new lines would continue to dictate the outcome of elections. But the court put the case on hold until the Supreme Court acts on the other partisan gerrymander challenge — the Wisconsin case.

Why it matters: The Supreme Court has never been able to find a way to measure when partisan politics goes too far in redistricting, which occurs after each census. That’s why the Wisconsin and Maryland cases are viewed as so important, not just to the political parties, but also to voters, who have a right to have their votes count, and remain undiluted by unconstitutional gerrymanders.

A look ahead:The March argument cycle is the second-to-last of the term. After arguments in April, the justices enter an intense period of drafting, sharing and issuing opinions in the argued cases. They have been behind the average recent pace of issuing decisions, so June could be a very big month.

Spring will also trigger the usual rumors about justices’ retirements. Expect lots of rumors about Justice Anthony Kennedy, as there were last year. But remember: The only person who knows for sure whether he will retire is Justice Kennedy.