Truth in advertising or free speech burden? California law on ‘crisis pregnancy centers’ tested at high court

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• Hari Sreenivasan:

  But first, abortion and free speech collide at the Supreme Court today.

  William Brangham takes a look at arguments made before the nine justices this morning.

• William Brangham:

  The case before the court involves so-called crisis pregnancy centers — these are clinics run by anti-abortion groups — and whether a California law can require those centers to more fully disclose what they are and what services they do and don't offer.

  Marcia Coyle was in the courtroom for today's arguments. She is chief Washington correspondent of "The National Law Journal."

  Hi.

• Marcia Coyle:

  Hi. How are you?

• William Brangham:

  Great.

  So, tell us. Tell us a little bit more. What is this case all about?

• Marcia Coyle:

  This is a First Amendment claim that was brought by an organization that represents many of these crisis pregnancy centers.

  And they are contending that, under the First Amendment, these notices are — amount to compelled speech, that they are being compelled to speak a message that is against their religious beliefs or their beliefs, period, about abortion.

  The law itself provides notice — would require them to provide notices of a range of services, not just abortion, family planning, contraception, prenatal care, and abortion services. They raised their challenge in the lower federal courts.

  They lost. And they are the — one of the challengers who brought the case to the Supreme Court today for the oral arguments.

• William Brangham:

  The law in California said that if someone walks into a crisis pregnancy center, which have been accused of sometimes misleading people…

• Marcia Coyle:

  Yes.

• William Brangham:

  … into thinking you might be getting birth control or abortion-related services, the law says you have to say to people, we don't have medical doctors here, or you have to tell them, if you do want an abortion, there are services provided by the state of California.

  And that's what they object to.

• Marcia Coyle:

  There are really two types of notices, one for unlicensed centers. They simply have to say that they are not licensed medical facilities, and they have no licensed medical provider on the premises to supervise what they're doing.

  If you are a licensed center, then you have to provide a notice that says there are low-cost, free family planning, abortion, prenatal care, contraception services available, and include a phone number that would allow the woman to access those services.

• William Brangham:

  So the state of California is saying this is just, in essence, truth in advertising, that if you walk into a center, you should know what you're getting when you walk into that place.

• Marcia Coyle:

  Absolutely.

  In fact, the state feels that it's filling an information gap. The state has been expanding its health care services, and claims that there are a large number of low-income pregnant women who aren't aware of the services that they can get for free or at low cost if they're eligible.

  They don't see this as targeting crisis pregnancy centers, although the centers feel that they are being targeted.

• William Brangham:

  And what was your sense from listening to the arguments today how the justices came down on this?

• Marcia Coyle:

  My sense was that many of the justices seem to be leaning against the law. Almost all of them voiced some concern, some more substantial than others.

  For example, Justice Alito said that the law has so many exemptions, that when you finally put aside all the exemptions, the only ones who seem, suspiciously, to be targeted are these anti-abortion centers.

  Justices Sotomayor and Kennedy raised some concerns about even the unlicensed center notice, that if you advertise as an unlicensed center, you have to put in large print that you are not a licensed medical facility, and you have to put that in 13 different languages.

  At the same time, Justice Sotomayor said that she had gone on the Web to look at some of these centers to see how they advertise. And even though these unlicensed centers claim they do not provide medical services, she said some of them are showing women in nurses' uniforms in front of ultrasound machines in an examining room, which could be quite misleading.

  On the other hand, Justice Kagan point out what California's law here is doing is almost the flip side of what the Supreme Court has said states can require doctors who perform abortions to say to their clients. She noted that some of the statements that states require those doctors to give to women have virtually nothing to do with the abortion procedure itself.

  Picking up on that, Justice Breyer said, well, you know, in the law, what is sauce for the goose is sauce for the gander.

• William Brangham:

  In other legal news today, a defamation suit that was brought by a former contestant of "The Apprentice" — this was Donald Trump's former show — has tried to sue the president for defamation.

  A court in New York ruled that because he is president doesn't mean he doesn't get out of this potential case. Explain what happened.

• Marcia Coyle:

  Well, it seems to me what happened here is the president's lawyers were relying on a Supreme Court decision, Clinton v. Jones.

• William Brangham:

  The famous Clinton v. Jones.

• Marcia Coyle:

  Yes, and, oddly enough, that case would really seem to work against the president, because the Supreme Court held that President Clinton could be sued for sexual harassment claimed by Paula Jones.

  But the court didn't — well, the court explicitly said that it wasn't deciding whether a suit in state court could go forward. It was only addressing — this was a suit against President Clinton that was brought in federal court. And so I think the Trump administration is — or President Trump's lawyers are relying on that opening in that decision to carry forward and probably with an appeal.

  But the New York state court ruling today was basically on the supremacy clause, saying that nobody is above the law, and so this suit could go forward in state court. So we will have to see what happens next.

• William Brangham:

  Marcia Coyle, as always, thank you so much.

• Marcia Coyle:

  My pleasure.