The US Supreme Court [official website] heard oral argument [text, PDF] on Tuesday concerning the constitutional validity of California’s Reproductive Fact Act [text, PDF], which has been challenged on First and Fourteenth Amendment [GPO backgrounders, PDF] grounds.

The Act requires licensed clinics that list their primary purpose as providing family planning or pregnancy-related services to notify and inform all clients concerning the availability of free or low-cost access to comprehensive family planning services, prenatal care and abortion for eligible women. The Act further requires unlicensed clinics to notify and inform all clients, among other things, that the facility is “not licensed as a medical facility by the State of California.”

The National Institute of Family and Life Advocates (NIFLA) [advocacy website] has challenged [question presented, PDF] the Act, stating that the law “burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise.” NIFLA additionally claims that the First Amendment “prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.”

The US Court of Appeals for the Ninth Circuit [official website] ruled against NIFLA, and the case ultimately found its way to the Supreme Court. NIFLA claims that the Ninth Circuit’s decision conflicts with those of the US Courts of Appeals for the Second, Fourth and Eleventh [official websites] Circuits.

At oral argument NIFLA argued that the statute only regulates “clinics that are licensed under Section 1204 of the California code,” which are primarily limited to nonprofit community clinics while “doctors in private practice are out of the statute to begin with, and the state admits this in its brief.” Additionally, NIFLA pointed out that among the nonprofit clinics, clinics in general practice are exempted out even though they serve pregnant women.

The state argued that the increased disclosure promotes choice by a patient:

More specifically, it allows—it empowers the woman by explaining that her financial circumstance does not make her unable to access alternative and supplemental care, including full prenatal and delivery care that [NIFLA] do not themselves supply. And it gives her that knowledge in time to be useful, because pregnancy and medical care is extraordinarily time-critical. … the goal of the statute is to identify women who are seeking pregnancy care and appear unable to pay for it themselves or through insurance or public coverage they already have. That’s why it’s targeted at free clinics. Now there was a reference to exemptions, and the exemption, leaving aside the exemption for federal clinics, which I think is obvious, the exemption for Medi-Cal F-PACT providers reflects that a notice would serve little purpose at a provider which already provides care under those programs and which have the incentive to help women enroll.

Additional arguments against the Act were made by Deputy Solicitor General Jeffrey Wall of the Department of Justice on behalf of the federal government, as amicus curiae, who challenged the Act on First Amendment and religious freedom grounds.