NIFLA v. Becerra Breakdown: The Bad, the Ugly, and the Downright Despicable

Woah. This was a big one. And, sadly but not surprisingly, it did not go our way. Regardless of the Court’s decision, we’re gonna stay angry and stay dedicated to exposing these fakes. But to fight against the anti-abortion activists screaming “free speech” as they skip through the street torching our repro rights, we all need to know what happened in this decision-- and why it’s bullshit. So let’s break it down.

On Tuesday, the Supreme Court ruled in favor of the National Institute of Family and Life Advocates (NIFLA) in their challenge to California's FACT Act - an act which would have required fake clinics with a medical license to post signs detailing where women could receive affordable medical care, including abortions. The act would also have required unlicensed fake clinics to say that they were - wait for it - unlicensed. These crazy California liberals and their truth!

Now everybody put on your scuba gear, because we’re about to go deep.

Points from the Majority Opinion by Justice Thomas, backed up by Gorsuch, Kennedy, Alito, Chief Justice Roberts, and the ghost of Antonin Scalia (probably):

  • The regulation for licensed clinics “likely violates the First Amendment” because it is a “content-based regulation” -- by making fake clinics post notices that “advertise” abortion, it is changing the content of their speech.
  • And the reason it is content-based is because it is NOT “purely factual and uncontroversial” and thus not infringing on free speech because abortion is “hardly an ‘uncontroversial’ topic”.

  • These regulations are different than making abortion providers give options about adoption because that’s right before a medical procedure, and thus regulating conduct. These regulate speech for speech's sake.

  • Plus, the regulations on abortion providers are about “informed consent”-- they apply to a medical procedure and are just about making sure the patient is informed!

  • This regulation for licensed clinics is actually too “underinclusive”-- it only applies to fake clinics and not other general clinics that serve low-income women

  • And if we’re talking about unlicensed clinics, the regulation is “unduly burdensome”* -- for example, if you had a billboard that said Choose Life, you’d have to surround it with a 29 word statement from the government telling the viewer that this clinic is unlicensed in up to 13 different languages

*Vocab quiz break! An undue burden is often cited as the point at which a law’s entire purpose is to place obstacles in front of our constitutional rights. For example, in Planned Parenthood v. Casey, the Court ruled that forcing a woman to notify her husband before getting an abortion was unduly burdensome, but that mandatory waiting periods and counseling were not.

Points from the Dissent (aka clapback) by Justice Breyer, backed up by Sotomayor, Kagan, and everyone’s #WCW Ruth Bader Ginsburg:

  • The court is going waaaaay past precedent in applying strict scrutiny to the first amendment rights of medical professionals-- suggesting that heightened scrutiny applies to much of social and economic legislature rather than leaving it to state legislatures will “obscure, not clarify, the true value of protecting freedom of speech”

  • Maybe abortion is controversial, “but the availability of state resources is not a normative statement or a fact of debatable truth”

  • The “informed consent” argument lacks moral and logical validity-- Claiming that these disclosures are unrelated to a medical procedure is ridiculous.

  • Because abortion is a more divisive issue, it’s even more important to interpret the first amendment evenhandedly, and give pro-choice clinics the same rights as fake ones.

  • NIFLA’s claim of underinclusivity isn’t developed enough to deduce whether the exempted clinics are exempted for a legitimate reason-- for example, maybe real clinics are exempted because they already provide their patients with this information and so do not need to be required to!

  • Onto unlicensed clinics-- “it is ‘self evident’ that patients might think they are receiving qualified medical care when they enter facilities that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care.” (DUH.)

  • The whole billboard hypothetical shows that the act could be applied unconstitutionally, not that it is unconstitutional in of itself. Cut the part about all 13 languages, don’t nix the whole act.

To save the best for last: Why should medical professionals who provide abortion have to give information about adoption if counselors promoting adoption don’t need to give information about abortion?

And again: “There is no convincing reason to distinguish between information about adoption and information about abortion in this context.”

One more time for the people in the back: “A Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.”

Justice Breyer, though not quite at the boss-ass-bitch status of RBG, says it better than we ever could.

This decision fucking sucks, and anyone who thinks simply saying that abortion EXISTS is controversial fucking sucks too. But in the spirit of the dearly departed FACT act, we gotta stay informed. It’s more important now than ever to expose these fake clinics, because the government sure as hell isn’t going to.