Skip to main content

tv   NIFLA v. Becerra Oral Argument  CSPAN  April 24, 2018 2:31am-3:34am EDT

2:31 am
today we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy events aroundington, d.c., and the country. c-span c-span bus 50 capital to. gary herbert about our guest on the bus starting 9:30 eastern. next, supreme court oral argument on the constitutionality of a california law requiring crisis pregnancy centers to offer abortions as an available option. the pro-life national institute of family and life advocates argues the law is a violation of free speech under the first amendment. this whole argument is an hour. your argument in case number 161140, the national institution of life and advocates versus
2:32 am
becerra. mr. faris. >> mr. chief justice. california took -- by come pelling license centers to point the way to abortion in imposing advertising rules who do not provide ultimate that sountd or any other services. the state provide exemptions for other medical providers who serve pregnant women. it is directed at disfavored speakers with disfavored viewpoints. >> this situation as -- if the state law were that all women's health provided that perform abortions would have to tell the patience, if you would like to carry the pregnancy to term, you will have access to a clinic that will assist them, provide
2:33 am
adoption facilities or provide intersection on how to care for infants. suppose that were the statute, would that be unconstitutional? >> no you honor, this court's decided a very similar case in the kasie decision from pennsylvania. pennsylvania imposed that requirement in the context of any formed consent discussion. formed consent is triggered by a doctor proposing to perform a typical medical intervention. medical intervention are surgeries, abortions, medical intervention. in that case, medical intervention is required discussions of the benefit of the procedure, the risk of the procedure -- >> but why isn't these also informed consent? >> you honor. >> so that the patient will know what are the available services to her? >> you honor, the services provided by our license centers
2:34 am
are not medical interventions. perhaps the best explanations if planned parenthood center in pennsylvania did pregnancy tests and ultrasound but did not perform net planned parenthood center talked been abortions and encouraged abortions -- >> maybe the justice can protect her on questions. her questions are hypothetical case. the hypothetical case is doctors who are offering abortion services have to say that if the presidency is carried to a full term, his assistance? >> you honor that would be -- >> it's a hypothetical case. >> i understand, you honor. if the the state anchors that. it would be considered under the casey legal principles. in casey this court recognizes that -- >> doesn't anchor under any,
2:35 am
that's what the law is what it says. if you are an abortion provider you have to tell patients that if they want to carry the pregnancy to term, they can have assistants, call this number. >> you honor, yes, that is in the context of proposing a medical intervention describing the alternative. this court in harris versus mccray and in casey indicates the state has an additional interest in the woman in advancing the life of the unborn child to a degree, can't do too far -- >> you're saying if it is a nonmedical facility, i don't want to put words in your mouth, this is a question. if there is a nonmedical facility, the state has reason to think is -- telling women about only one set of options and not another set of options but here, the case would be they're only telling women about abortion providers, and they're not telling women about other
2:36 am
ways to they may be able to complete their pregnancy. that the state could not impose a requirement that that facility post a notice saying in fact there are many kinds of facilities in a world and some are abortion providers, some of crisis pregnancy centers and some are something else, that that would not be per admissible? >> you honor, that would be -- it's an unlicensed facility that requirement is being framed up. that would be judged under scrutiny and i don't believe it would be required. if in the licensed context how far it would statement be the same framework but the analysis would be difference. >> you are suggesting that everything turned on whether a medical procedure was going to be performed. in my hypothetical was designed to take out the medical procedure, in other words this is just a facility that refers women. but it refers women only to
2:37 am
abortion providers. and the state decides we don't want facilities that prefer women only to abortion providers. we want facility that would tell women about the full range of their options. and so, the question is, would a requirement that such a facility post a notice saying there are actually are a lot of options and here how you can access them. would that be unconstitutional? >> yes, you honor because under your hypothetical it's a targeted law, it's aimed at particular people and not given the all doctors who diagnosis and defer pregnancies. >> what if it wasn't a target. what if there was a state law that was required. every doctor or facility that provide medical treatment for pregnant women to post a notice setting out the full range of options available to those women and where they might obtain services at no cost if those -- if those are available.
2:38 am
would there be anything wrong with a law like that? >> well, you honor if it's done in a manner similar to what's being done here in california, to require pro-life doctors, either clinic or otherwise to point the way into adoration facility, would the constitutional -- >> what if it did -- what if this notice provided for set out all of the options and applied to everybody, so it would apply to pro-life facilities but it would also apply to clinics that perform abortions? >> i understand. >> and provide no other form of assistance for pregnant women? >> you honor, i think the outcome would still be the same. perhaps it would arise -- >> i'm sorry the outcome would still be the same -- >> in my prior answer you honor? >> and that was what? >> in a reinstitution to -- but this case is different, because, not only is the requirements of
2:39 am
which doctors have to give the notice, gerrymander, the notice itself is gerrymander, it's not giving women all the options. the notification required says the state will pay for abortion services but does not tell california women it will pay for pregnancy -- >> there are a lot of different things, the simple basic thing if you can say it as simply as possible. in law as you well know, what is sauce for the goose is sauce for the gander. i think what's bothering from these questions, people is it bothers me. there are pro-choice states and pro-life states. if a pro-life state can dell a doctor, you have to tell people about adoption, why can't a pro-choice state tell a doctor, a facility of whatever it is, you have the tell people about abortion? that's simple.
2:40 am
the one we've said, you can make a doctor whose very prolife teller about abortion? get it? why don't we have to say the cause is the same? you're a pro-choice state and you can make these people tell them about abortion? >> yes or no if it's a simple demark case about abortion that will be unconstitutional in any state. the law being upheld are doctors who are going to perform abortions -- >> you want to draw line to whether it's it's a doctor treatment or medical institution about to do it? >> yes. >> okay i've got it. >> my other question. you have a different line in which you are attacking this, you say this statute picks out 60 to 70 really pro-life
2:41 am
facilities and say, you have to post these signs but nobody else does? right? >> that's correct you honor. >> okay. now, that sounds like you have a point there if that's correct. if it doesn't have to be a trial on that, what are you argue to -- this is just a preliminary inadjudication, don't you have to have a trial or present some evidence, i don't know what your evidence is, i don't know what the evidence is on the other side. can we decide that out knowing the evidence? >> well, you honor the gerrymandering of the statute is evidence from the face of the statute, the way the statute works -- it's rimmed -- ten you
2:42 am
talk the class, among those that are different preg su services, if you are willing to sign up for the family program which requires you to avoid efficient drugs then you're out of the program as well. clever sere res of gerrymandering -- there's some
2:43 am
evidence in the brief that may be a 9,$000 a month tax for advertisement. what do we do about the lack of evidence and if we should weight for the lack of evidence? >> you honor, this faces a case where there was a detailed disclosure required to certain financial profession. this indicate didn't have a financial record, didn't have a financial record in the miami herald case either. the rule is the font must be larger than the main body of the ad or the same size of the main body of the ad with special fonts and colors. if that's the case, think of a chevrolet ad with disclaimers about financing had to be as big or bigger than the word chevrolet, that is not an effort to inform people, but an effort to cluter the ad and driver out the message of the ad. >> we don't know what kind of
2:44 am
adjustments might have been made because this case went off without an evident area hearing as was pointed out. but to test what your position is, suppose the law had been simply, the people who don't provide abortions or continue that acceptive services would have to say we don't perform abortions and we don't provide contraception services, period. then that would be -- everybody would know what's being offered. would that be constitutionally? >> not if it's in a nontargeted flag. if doctors in california who treat pregnant women, would utter the same requirements but when the same -- upon a targeted group of people because they don't like the compensatory
2:45 am
damages kpemgs /* /- -- exception of abortion -- >> counsel can you explain to me the difference of a license and unlicensing term of the services? >> certainly. >> and then i have a question based on that. but you seem to be basing your argument on the point that it's the unlicensed people in not providing procedures, correct? >> that are not providing any medical services -- >> they are advertising themselves, i looked at a few of them and exempt rare the full president resource center website. it's unfairly sophisticated. it's a woman on a home page with a uniform that looks like a nurse's uniform in front of an ultrasound machine. it shows an exam room, the text of the page says abortion, full booklet will educate clients
2:46 am
about different abortion methods available, and describe in terms different procedures. the booklet says clients will be evaluated by nurses and they follow all hippa regulations. if they're not a medical provider they don't have to follow i wahippa. if a registasonable person can at there website and think you're leaving legal advice, would the unlicensed notice be wrong? >> you honor to answer the first part of your question, our unlicense facilities do not provide medical services being defined as -- >> but they do provide medical advice. >> well they provide the topic upon abortion. >> well, how is that different from what a doctor does when you go in for a pregnancy, you see the doctor and the doctor will describe, hopefully, the
2:47 am
benefits of the pregnancy and perhaps its risk? because depending on, not all pregnancies are without complications. so, this is consulting about a medical condition. how is that any different than casey? you come in to talk to a doctor about abortion, the state says you have to tell the person the alternatives. so, if you're going to close to talk to people about, if you're unlicensed facility, about pregnancy, why shouldn't you tell people you're not a doctor? >> well, you honor in casey again, the doctors that were being regulated were the ones performing abortion, the court made note in casey it upheld that requirement because it was
2:48 am
parallel in the consent. unlicensed facilities that talk to women say they can use parenthood or adoption. >> so, is it okay for -- is it wrong for state to tell agencies who give advice on immigration rights -- states like this -- who say if you're going to give advice on immigration matters, you better tell people you are not a lawyer? those are uninstitutional? >> no you honor, new york statute that does that, gives those immigration people who are required to give notices, they're inability to gave cases in matters. that would be -- where natural paths and other alternatives providers are clearly otherwise engaged in the practice of medicine are allowed to do so -- >> and you're redefining medicine, medicine is defined by the license to practice medicine. >> true. >> so if you're giving people advice about pregnancy when
2:49 am
you're not a licensed facility, please explain to me what is both misleading, incorrect, or suggestive in any way that a person has to do something like go to the doctor. how it is doing anything other than telling people that despite how the picture looks on the website, this is not a medical facility. >> you'r honor, it's illegal to practice medicine in california without a license. it's illegal to pretend to practice without a license. if that's what's going on here, surely california would have found a way to do that before. >> in this case, i didn't go beyond the record to look on the internet. i don't think we should do. that i do have a hypothetical. what would happen if an unlicensed entity, unlicensed center just had a billboard that said choose life? would they have to make the
2:50 am
disclosure? >> yes, your honor. >> all right. so they'd have to make a 20-line or 20 words? >> it is 29 words in the same size fonlt as choose life and a number of languages, whatever is required by that county. >> we can ask the state of california, will the state of california disagree with that? do you think? you don't know? >> i don't think they'll disagree. >> it seems to me that means that this is an undue burden in that instance and that should suffice to invalidate the statute. >> that is our position. >> can i ask, you've been pinning a lot when you tried to distinguish casey on the idea of informed consent. and certainly some of the requirements in casey are informed consent in the way we understand talking about the risks of various procedures, all the things that we want doctors to talk about when we go to them and seek medical care. there were definitely requirements and n. casey that don't have much to do with
2:51 am
informed con sent as i've ever understood it. you know, the doctor having to inform patients about the medical assistance benefits mable available for childbirth and neo-natal care, inform women that the father would be liable to pay child support. so those kinds of requirements, they just don't seem to have much to do about informed consent. and they are and this goes back to justice breyer's sauce for the goose point, really the exact flip side of the requirements in this case. so how am i supposed to think about that? >> you're honor, the -- they are triggered by a medical intervention rather than in this case triggered by a discussion. >> i realize that's a factual difference that there is a doctor in the room and one case there is not. built these are not informed con sent requirements. >> your honor, this court held they were in casey because they were components of informing women about the alternatives to the abortion process.
2:52 am
i see that my time has got to the point i'd like to reserve the balance for rebuttal. >> thank you, counsel. >> mr. wall? >> mr. chief justice, may it please the court. the first amendment allows states to require truthful fact ual disclosures about goods and services. what the first amendment does not allow is require pregnancy centers to make i did closures about service this is he do not provide and violate the most deeply held beliefs without any showing by the state that it truly needs to kpuls speech rather than speak its own message. >> what about if they all were instead if you are providing women's health services, you have to list all the services that you provide. that would apply to everybody. it would apply to facilities
2:53 am
that provide abortion and contraceptive services and it would apply to the natal care everyone like on food. you have to install the ingredients. >> i think if california said to all providers across the board in the state you have to put a notice on the wall that lists the services you provide that, looks to the united states like truthful information about what you're doing. that seems like, you know, pretty close to the core. i think the concern here is the license notice in california and similar statutes in two states are really different from the vast bulk of disclosure requirements like that one. >> i didn't understand the question to be along the lines that you answered. its no the simply a requirement of whether or not the facility must list the services they provide. the question is can they be required to list service that's they don't provide? but that maybe provided -- >> my question was does everyone
2:54 am
in the women's health care business, if the state decides, we want you to tell the public what you provide. what you provide. that's all. >> i may have misunderstood the question. to the extent that notice is about your own services, we think that is permissible. it's a truthful disclosure about your own services. as you move away from that and the way that three states have done, then i think you're triggering heightened scrutiny. >> family planning clinics do not have to tell any woman about adoption. >> i think it depend on whether it's time -- force. >> they don't provide adoption. it's not their service. >> we're saying if it is just a center that counsels people on abortion and a general sense, no. >> it doesn't. it's a center that helps women plan their families. that's what it is. now it's not -- they don't have doctors who are performing abortions there. i'm just saying it's a family planning center. okay? that's an information center.
2:55 am
my point is this the same. there are millions of people in this country who have views on this subject that are absolutely opposed, one to the other. so that to me suggests the law should keep it as simple as possible. and that's why sauce for the goose, sauce for the gander. i mean, we if the law is permissible, it says doctor, you must tell the woman about adoption then why shouldn't the law say family planning center, you must tell the woman about abortion. sounds even handed. sounds as if everybody in the same business is of the same rules. you, the government and the nifla are trying to make a distinction there. i need to know if you're right. the only dwifrpgstiistinction i
2:56 am
far is one has a doctor and the other is awe counsellor. >> that is the crucial zirn differencetion. what the plurality opinion in casey says is this is page 83 -- >> it was about doctors, i agree with that. >> that's right. >> but i think for most people you think family planning. you know? family planning. that's the category. and the woman will make a decision and then the state can tell them some things they have to say. and we know they can tell them about adoption. they can make them tell them about adoption. so why can't they make them tell them about abortion? >> because justice breyer, when you're going in to have a procedure and you've got to make certain disclosures, that's a disclosure related to -- >> please let him finish the answer, please. >> that's a disclosure related
2:57 am
to the service you're providing. and then it's a question of how much you have to disclose. casey drew that broadly. >> but why should -- go ahead. >> you have to make an informed choice. we're not saying goose for the gander. we agree. the more you get away from that kind of a disclosure, that's about what you're doing with that patient or customer or client, the more scrutiny it ought to get under the first amendment. >> i think the question is why shouldn't there be -- a state says, you know, what this is the regime we want. we want to say to family planning clinics that they should put up a poster saying we do family planning. we do not do adoption. and we want to say to price's pregnancy centers along the lines of petitioners here. we do adoption. we do not do family planning or abortion. and the state thinks that would be a good system. because when a woman goes in to either one of these kinds of
2:58 am
places, they'll know what's there and they'll know what's not there. and why would that be problematic? >> well, i think because once it's no longer tied to the specific goods or services that the clinic or center or whom environmenter is providing, then the more we ought to be worried that there making you just advertise what other people are doing. and this case is even one step beyond your hypotheticala. it's saying, look, we want people to know about service that's the state provides. >> how is that different than casey? in casey we require doctors to hand out state created materials, telling the women about what services the state and others provided.
2:59 am
i think they're not doing procedures. but i don't know what an ultrasound is if not a procedure. i don't know what a pregnancy test is if not a procedure. i don't know how counseling on the pregnancy state is not part of medical advice in the same way a doctor gives it when he's considering an abortion procedure. i don't understand the difference. so both of them are doing medical related procedures. and both are being asked, there is a dirvestinction in providin the services y is there a difference here? >> i agree with everything you said in the back half there. faen california were coming in and saying before you license clinic perform an ultra sound, you have to provide certain information to make sure that's
3:00 am
an informed choice by that woman to get the ultrasound in the face of risks and alternatives. then it's like casey and the question is just how much disclosure do you have to provide? and casey i think gives us important guidance on that. california is not doing that, at least on the license side. on the license side, it's not helping the women who come into the clinic make an informed choice to opt into one of the medical procedures. i'm not disputing that ultra sounds and the rest are procedures that could trigger those disclosure requirements. it's saying we have a generalized interest in having them know we provide some low and free cost services. and if that's their generalized interest, that is tailor made to an obvious alternative which is let the state do what pregnancy centers do and tell people about the services they provide. >> can i ask you something about your brief that troubles me? and that is the government's request that we recognize a new category of speech called professional speech which is subject to a lesser standard of review. i mean this case is very
3:01 am
important in itself. but adopting this new category of speech would have far reaching consequences. and i would like you to explain why that is consistent with stephens and other cases where the court has recently said we're not going to recognize any new categories of unprotected speech. and how you would define the boundaries of professional speech and there have been a lot of cases -- there have been some cases on this in the lower courts. but just take a couple of examples. journalists are professionals. would they be subject to this standard? how about economists? how about climate scientists? how about a fortune teller? a fortune teller is a professional. how about somebody who writes an advice column for parents? wouldn't we be getting into very dangerous territory if we do this? >> so justice, there is a lot there. i want to make a few points.
3:02 am
i think the third second's opinion does a nice job of this. the court already talked about professional speech. now it's often talked about it in the context of commercial speech and lumped them together in cases like zouder. but what we tried to do in our brief is say there are similar doctrines. this he overlap. but they have different origins and historically there are certain professions regulate that's wouldn't include fortune tellers or journalists. it would include doctors and lorz and maybe accountants. and so we do think that there is some room for the states historically in that area. what we tried to say is whether it is zouter or some equivalent or professional speech, if it's a disclosure about what you're doing that, is a low level of strut y scrutiny. the more we shift away from that, we may not get to strict scrutiny, and they can satisfy it. if the court goes all watt toy strut scrutiny, every disclosure they make about some product that it put out in the public
3:03 am
that has a risk, i think what gets scrutiny and our concern is that's going do dilute the scrutiny and that is going to undermine first amendment. >> thank you, mr. wall. >> thank you. >> mr. kline? >> mr. chief justice and may it please the court. the interests served by the license disclosure is very much like of that the disclosure in casey promoting informed choice by a patient. more specifically, it allows -- it empowered 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 petitioners do not themselves supply. and it gives her that knowledge in time to be useful because pregnancy and medical care is extraordinarily time critical. >> there is a sense when you read this statute, mr. kline, there is at least a question that arises as to whether the
3:04 am
statute has been jergerrymander. would you speak to that? if it has been gerrymandered, that is a serious issue. in other words, if it's like we have the general disclosure requirements but we don't really want to apply them generally. we just want to apply them to some speakers who's speech we don't much like. >> your honor, the disclosure is targeted at women who seek free care for preyignancy. and clinics that by their very licensing status provide free or sliding scale low cost pregnancy care are the ones where those women are going to be found and where this information is immediately useful to them. >> if you have a law that says neutral on its face but then it has a lot of crazy exemptions and when you apply all the exemptions, what you're left with is a very strange pattern.
3:05 am
and, gee, it turns out that just about the only clinic that's are covered by this are pro-life clinics. you think it's possible to inform intentional discrimination in that situation? >> yes. th that kind of hypothetical can support -- >> let me ask you about the exemptions which are hard to understand. why does this apply only to clinics whose primary function is providing service to pregnant women. you could have a small clinic and let's say it has 30 pregnant women come in a month. built that's the primary thing it does. then you could have a big clinic that has 100 pregnant women come in a month. it does a the love other things that pregnancy is not the primary concern. why does the law apply to one and not the other? >> that serves the purpose of having the disclosure most live made in the context in which it is useful as opposed to being made in a the love context where
3:06 am
it's not. and this court has said that legislatures should be encouraged to apply speech requirements more narrowly when they can. >> i don't understand that. how -- why does it apply almost only to four -- to nonprofits and not for profits? if the purpose is to get this information out to poor women, don't you think there are examples of poor women who stumble in to a for profit facility? wouldn't it be beneficial for them to know that they could get treatment at no cost through the state? why are most for profits exempted? >> you're honor, as a category, for profit clinics do not seem to treat primarily women who need free and sliding cost care in the same way. now i will say it's always possible to imagine a new boundary for the law. but under interimmediate scrutiny, a law does not need to be perfect and a legislature can
3:07 am
concentrate its effort that's where the need for the law is. >> what about individual doctors? why are they exempt? >> your honor, individual doctors specialize as a category in treating bhoem have a way to pay for care whether they're already enrolled in medicaid or health insurance or whether they just have the finances. free clinics are not on the same page. >> when you put this all together, you get a very suspicious pattern. and i don't know that we need to go into statistics about what the percentage of covered clinics are pro-life and whether or not. but we have a brief from a party in the state court case where the state court held that this law is unconstitutional. and according to their statistics, 98.5% of the covered clinics are pro-life clinics. >> your honor -- >> did you get that? >> yes. i understand we're speaking outside of the record here.
3:08 am
but that evidence in the state court did not -- was off by i think a factor of ten in terms of how many covered non -- i mean it differed by a factor of ten when it told the state court how many covered nonanti-abortions? >> so what is your position on that? what is the percentage? >> the state does not have firm numbers on this. we have done a preliminary assessment which found a significant number of nonanti-abortion covered facilities. however, i will also say that deriving this from purely state data bases is very tricky because they rely on september report clg is hard to interpret as to who really does primary care pregnancy care. >> could you say a few words about how the boundaries came about? and what was the state thinking, i mean, you know, i realize that the state, there are lots of
3:09 am
people thinking different things. but is there a -- give me a little bit more about your theory of the case even as to why these exemptions xiflt and why these lines are drawn. you've been saying well we go where the problem is. but tell me how you knew where the problem was. tell me how -- and what you thought the problem actually was. what were you doing? what were you trying to do? >> let me start with the question of what the problem s the problem is that the state has overseen an expansion of public medical care in california. but as experienced that publicity campaignses leave a gap that was highly keconcernin to them because of the severe s timi time constraints. so the goal of the statute is identify women who are seeking pregnancy care and appear unable to pay for it themselves or through insurance or public
3:10 am
conference 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 exempt for the providers reflects that a knots would serve little purpose at a provider which already provides care under the programs in which has the incentive to help women enroll in them. >> one way to think about how a statute like this gets enacted is to say, you know, we're really concerned that there are low income women don't have a lot of access to information, don't realize what all their options are. want to make sure in general and across the board that they get the best information that's available to them. another way to think about how a statute like this comes about is more targeted. its to say that there are the crisis preying noncy centers all over california and we know that women just go into them and they don't realize what they are.
3:11 am
and they're being subject to being misled and we think that this is a terrible problem. and it might be. the state could legitimately view that as a problem. it's a much more targeted problem whether it's a problem or not, it's much more targeted than the first. is this the second or first kind of statute? >> the first. and the verbatim statements -- >> if it's the first kind of statute, then why shouldn't this court take cognizance of the state's other available means to provide messages? if it's about just ensuring that everyone has full information about their options, why should the state free ride on a limited number of clinics to provide that information? >> your honor, the legislature is aware of the shortcomings of other methods as evidenced by the gap that has remained despite the efforts to
3:12 am
publicize. now what you describe is as free writing, i respectfully submit is a permissible speech requirement in the professional context. it is hard to do that under the first amendment. >> i don't think it's unusual to require a professional to explain alternatives as or additional option that's are available as in casey and the laws cited in our brief. >> maybe you could finish your answer to justice kagan's question. >> what is the part of justice kagan's question? >> i don't know which is the first statute and the second. but i was saying a state could really be responding to generalized feeling that in general poor women don't have access to information or a state could be responding to a feeling
3:13 am
that there are a particular kind of center that is misleading women as to what they do and don't provide. and i can see this statute arising in either of those two ways wasn'ted you to tell me why you thought it arose in the first way and not in the second. >> right. let me say i don't think they're exclusive. the primary issue is women not knowing where they can get the free care they need for all of their options including caring a healthy pregnancy to term and having a healthy baby. but obviously, the informational problem is going to be especially concerning where there are cases of deception and so forth. and legislature had some awareness of this. but they didn't draw a statute with that as the primary -- >> i don't know. i came away from these briefs and i think i got the impression that there are about six or so
3:14 am
centers, maybe 70, that are really pro-life. for religious reasons of different kinds. right? they don't want to talk about abortions. and then it seems to me maybe there are thousands of centers altogether in california or several hundred. i really did end up wondering well are all those centers, do the poor women really get the information about free abortions? i have no idea. i mean the fact that they may have doesn't mean they tell everybody about it. i don't know what they're like. so this is my question. don't we need a trial on this? i'm just telling you right now i have no idea and your answers don't tell me. they're not empirical. you haven't told me women who don't go to the 67 centers but do go to 700 are all informed whether the center is a member of the cal medical program or
3:15 am
not. i don't know whether they're all informed. and i suspect that you don't either. and therefore, i think trial, that's what they're for. what's the answer to that? >> your honor, we agree. >> you agree with that? >> the record at the preliminary injunction states which is all the concerns is not sufficient to support injunction at a merit stage there are presumably be a great deal of evidence on both sides. >> can we go back to the questions just kennedy asked the other side? which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement this is not a medical facility but a 48.5 fonlt? >> i don't think so, you're honor, unless the facility was -- i mean what subjects a
3:16 am
facility to the law if it's unlicensed is -- this is on page 79-a of the petitioner's appendix, things offering ultrasounds, sonograms. >> what if it weren't? what if you had an organization that simply provided adoption services and advertised there san alternative to abortion. try adoption. could the state make them include the disclosure requirement that you have with respect to license facilities? because that's that's an alternative to pregnancy. i'd say you want to make all the abortion alternatives fully available and make the low income women aware of those. you could impose that requirement on that facility? >> i don't think so, your honor. such a requirement wouldn't be serving the same interests. let me explain why. the license facilities provide mechanic care, page 91, their
3:17 am
compliant describes medical care they provide to pregnant women. so women go there -- >> so what additional what, ultra souns or discussion of family planning, what more would it take to require the adoption center to be covered? any one of the ones that you have listed for license centers? >> in other words, what would make it subjective to the same requirements as a license senter? >> yeah. at what point, you know, you say let's say that ultra sounds are out of it. d disclosure still required for that facility? >> i don't think the ultra sound's per se make the difference. what would make the difference as a constitutional matter is that licensed as a medical facility that -- and does it provide medical care to people who -- >> like preying noncy testing if the adoption center also provided pregnancy testing, you could cover snem. >> if they provided it as a licensed medical service through licensed medical providers, then
3:18 am
the state would have to justify the sufficiently important interests with the -- >> what's your answer though? it provides two services ashgs dopgs and preyi services, adoption and pregnancy testing. >> i think it's difficult to justify. >> that's why i'm asking the question. i'm trying to figure out -- i'm trying to figure out the limits of your argument. i mean the centers here have a variety of services they provide and you saw because of that we can impose the requirement on them before. we can say yes or no, i would like to know the limits of it. so a facility that provides adoption services and pregnancy testing, can they be covered by your law? >> through a licensed provider, yes. they could. >> that's all they do. i don't know what you mean. that's all they do. they counsel on adoption and they provide preyignancy testin.
3:19 am
could you say there are other options you might want to disclose here are facilities where you get other options? >> i think on reflection, probably not. here's the difference. because they're providing so much more limited set of medical services that it may be less -- >> mr. kline, can we go back to my question? i have read the law with respect to facility and it requires a facility to do one of two of four things before it qualifies under the law. abortion, awe pear right that they have to, one, offer ultrasounds, sonogramors prenatal care. or pregnancy testing or diagnosis or three, prenatal
3:20 am
monday o mono gram testing but they have to do two more things. let's go back to the question that justice kennedy asked. one of the medical care facilities says pro-life and their name. are they required to post a notice? you started by answering the quaen i don't think you finished. >> the answer is no. they're not required to. >> because they're not any advertising? >> right. they're not doing to -- >> no. show me where that is in the statute. if it's a covered facility, then any ad that they put out including one that just says choose life has to include this discla disclaimer. >> it had as to do two or more -- >> yes, it has to do the things. they offer pregnancy testing and they advertise that they do pregnancy testing.
3:21 am
they put up and it says choose life. they have to put in the disclaimer. >> yes. in that circumstance, they may be required to do that. and -- >> do you agree that mandating speech that the speaker would not otherwise give indeed does not agree with alters the content of the message? >> yes. >> all right, so you're saying that state can require that the content of the message be altered even though they're not providing medical services? >> yes, your honor. the criteria are zinld not to see who is providing medical services, that is taking care of by our unpractice law. it is designed to address instances where the services that are offered and provided could make a woman believe that she's going to have -- be accessing medical services and xemding her time and resources to do that and is unable to evaluate what she has. >> if we uphold your argument, we agree with your argument,
3:22 am
could the state then amend the statute and say that any evangelical group that has a seven day rally for pro-life has to give required information of this sort? >> no, your honor. >> why not? >> even putting aside the free exercise targeting, the -- >> so religion is not a part of this calculus in the case that you have? >> will with, your honor, your hypothetical statute did target at envan gellical groups. that is on its face unconstitutional. i'm assume he with want toy that out. >> it included it. i didn't target it. >> i think the statute is reasonably read and applied in recognition of its purposes which are the purpose to prevent women from making their decisions about where to go based on this taken confusion about what is offered. that is hay classic purpose. >> may i ask you, there was a
3:23 am
question raised about 13 different languages and what a burden that would be. i don't know what the state's answer is to that. it's one thing to say we're not a licensed medical provider. but if you have to say thosentes in 13 different languages, it can be burden so many. >> your honor, if the statute -- if an application to a kind of ad that the centers otherwise have been running and would run, if it makes it too burdensome to place the adds, it would be unconstitutional. >> what is the situation for los angeles county? this is california law. you should know the answer. somebody is going to put up an ad. a covered unlicensed facility posts an ad in los angeles county in how many languages must they print the disclosure, the disclaimer? >> it would be 13. and it would be -- if a
3:24 am
plaintiff showed standings and made a record of the kind of add that they used to run and it would be impossible to run it. that way it is unconstitutional. but that requires actual standing and -- >> what kind of an ad -- what kind of an ad would -- as to what type of ad would that not be unconstitutional? >> there is nothing in the record about what ads these plaintiffs do in fact run. so we don't know. we do know this doesn't apply to tv and radio ads, for instance. i want to make sure if i may to address one -- >> so you want me to have a reman to tell the court what a billboard is? there are a lot of things we don't know but i think we know what a billboard is. >> we don't know what ads these petitions run. it's no the in the complaint. and for a preliminary injunction, the court was not -- the language issue was not raised at all on preliminary injunction. they did not abuse its discretion with respect to that.
3:25 am
>> what about what did i just say to findings about false and misleading representations? has california ever brought charges against any of these places for false and misleading advertising? >> i'm not aware that state has. i believe that the it is yan county of san francisco has, for instance. but in any case, that doesn't address such a procedure would not be superior. first that, kind of policing that kind of issue would not necessarily be more speech protective since it may involving undercover pace patients, site visits and the rest. >> it could apply evenly to all pernsz and all industries. and a tlau is very familiar. i meanant any fraud provision ndz commercial speech are well known. and they don't pose any of the problems we've been discussing to day. so why wouldn't that be a
3:26 am
superior mechanism for adrezing concerns. if we're talking about a narrower set of concerns. >> right. >> so the narrower concerns which are not the only ones here, it could be significantly more or at least it's an open question about whether it would be as or more speech intrusive to be really getting into information that the petitioners are saying to assess it. they need to give a notice because it gives women the information to pro ekt tekt themselves and make informed decisions they have by making the notice to call the government what fit requires you to give a speech by someone else? the second is put the burden on the government to prove that someone has abused their free speech rights. and this court is normally jealously protective of speech. why isn't that latter approach
3:27 am
preferable? >> it was a necessary step in casey. in the relation of professional speech, the government, given the close and relinlt relationship can rish a certain amount of speech to make sure the patient makes informed decisions about very important matters. the main issue with casey is the flexibility in how it can be delivered. and because it's only gifving a phone number for the patient to call and get information from the government rather than requiring the physician to herself hand over a complete state written pamphlet which is what the decision in casey required. >> would it be fair to say -- and i still don't have a full answer to my question -- all right. pro-life, nothing elimination. an unlicensed facility, it meets all of the cry tear yachlt it has an ad that is just pro-life.
3:28 am
does it have to give the notice, yes or no. >> yes, fit meets the other criteria. >> that seems to me more burdensome and wrong. because it's not tied to an advertisement that is promoting medical services. >> may i continue? it's possible that that kind of challenge would result in invalidating that application. but as in this case, they address particular problems. >> thank you. thank you counsel. >> thank you mr. chief justice. i'd like to first address justice kagan's concern about the gerrymandering issue. on page five of our reply brief, we point out the state's website where the state tells low income women how they can go to private doctors and get sfervices for
3:29 am
pregnancy. yet they're all exempt from this act as are all nonprofit clin thakz have then in kind of practice that justice alito's question described. as for the burden, the aheartbeat international on page 24 of their brief gave a mock-up of what an ad would look like when you have simply pregnancy, have questions and a phone number. and all the language is required in los angeles county, that's what it would look like. and it's clearly burden so many and the unlicensed and i think the last answer from california was correct is it would be triggered if they were otherwise man dated by the law. >> the answer was this was not brought up in this case until now. and it should be aired. >> your honor, that's not correct. it was raised below as our reply brief sets out. it's in the complaint much it's in the briefing and the district court. it's in the oral argument in the district court much it's the
3:30 am
briefing and oral argument in the court of appeals. all the details are on footnote five of our reply brief. the good for the goose, good for gander thought. the pro-life state is going to find out there is no difference anymore between people who perform abortions and those who counsel about it. who talk about it. if merely talking about abortion is sufficient to require you to give pro-life information, we have taken a big step in the wrong direction of politicizing the practice of medicine if everyone who recommends abortion can give these kind of -- >> i mean that's -- it's you have to be a carefulal group giving advice in a professional way. its not, i don't think the goose and gander has to do with everybody in the world. and there are things called family planning clinics, et cetera. >> certainly, your honor. the narrow construction, as i
3:31 am
understood your hypotheticala, this is a family planning center that did all the services. i think it's unconstitutional in a pro-life state to require that center to give a pro-life kind of disclaimer that was required in pennsylvania because they're not doing anything that relates to practice of medicine in that context. taking the broader construction if we're not going to gerrymander this and say all doctors who treat preg nonthe women have to give all the options. if that's the case, doctors who advise to deliver and doctors who advise to get abortions are going to be swept into this requirement. and the political ramifications of that are enormous. we should not politicize the practice of medicine in that way. and the line that casey drew between performing abortions versus advising about abortions is a constitutionally appropriate line. thank you, your honor. >> thank you, counsel. the case is submitted.
3:32 am
>> next monday on landmark cases, "new york times" v. united states better known as the pentagon papers case. in 1971, "the new york times" and "washington post" fought the nixon administration to publish a classified history of u.s. military activity in vietnam. the supreme court's decision restricted the government's power over the press and broadened journalists first amendment protections. our guest to discuss this land make case are floyd abrams, one of the nation's top first amendment and media litigateors. he remented "the new york times" in its case against the nixon administration and ted olson, former u.s. solicitor general. watch "landmark cases" next monday at 9:00 eastern on c-span and join the conversation. our hash tag is land mark cases and follow us on c-span. we have resources and the land merrick cases companion book, a link to the constitutional tenlter's interactive constitution and the landmark
3:33 am
indications podcast at mark cases. tuesday, tuesday, our live coverage of the he visit for the french president begins with the eye rival ceremony at the white house. 9:00 a.m. eastern live coverage on c-span2. continuing tuesday, the joint news conference 11:45 a.m. eastern live on c-span 3. and the first state dinner of the trump administration is 6:30 p.m. eastern live on c-span3. wednesday, president macron will be on capitol hill to address a joint he meeting of congress at 11:00 a.m. eastern and live on c-span. snechlt next, a look at the role that congress has in providing oversight of the justice department and the fbi. gerald nabler on the house judiciary


info Stream Only

Uploaded by TV Archive on