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tv   NIFLA v. Becerra Oral Argument  CSPAN  April 23, 2018 3:53pm-5:11pm EDT

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>> tuesday, president donald trump welcomes french president emmanuel macron to the white house for an official state visit. our live visit -- covered begins tuesday at the white house and welcoming remarks by the two heads of state. then, live coverage of president trump's friend's state dinner starting at six: 30 pm eastern with guest arrivals and dinner toasts. the official state visit of french president emmanuel macron live starting tuesday morning on c-span. and on the free c-span radio app. >> up next on c-span, supreme court oral argument and the case dealing with the first amendment and abortion rights. the case follows the california law that requires pregnancy centers to tell clients that abortions are an available option. hour.s about one
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>> we will hear argument this morning in case number 161140, the national institute of family and life advocates versus -- >> mr. chief justice and may it please the court, california took aim at pro-life pregnancy centers by compelling license centers to point the way to abortion and enforcing onerous advertising rules on unlicensed centers that do not provide ultrasounds or any other medical services. the state then provided exemptions for all the medical providers who served and women. particulargets a topic of discussion, employs compelled speech and is directed at favorite speeches with disparate viewpoints. >> if the state law were that health provided that perform abortions would have to s, if you wouldt'
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like to carry dependency to to a you would have access clinic which will assist them and provide adaptive facilities or provide antact instruction on how to care for suppose that were the statute, would that be unconstitutional? >> no, your honor. in ay similar case decision from pennsylvania. pennsylvania imposed the requirement in the context of the context of informed consent discussion. it is triggered by a doctor performing a particular medical intervention. it requires the discussion of the benefits of the procedure and risk of procedure. >> why isn't this also informed
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, so they will know what are the array of services available to her? >> the sources provided -- the nexthe best in for nation the planned parenthood center in pennsylvania did pregnancy tests and ultrasounds but did not perform abortions, required -- they talked about abortion, encouraged abortion, and that would be unconstitutional to compel them. i was interested, her question is a hypothetical case. doctors offering abortion services have to say if a pregnancy is carried to full term, there is assistance. in a hypothetical case. >> i understand, your honor. the state anchors that in the informed consent framework, it will be considered under legal
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principles because the court recognizes -- >> the law is what it says. if you are an abortion provider, s thatve to tell patient' if they want in return, they can call this number. is in the context of describing alternatives, indicated that the state has an of advancingterest the life of the unborn child. >> i don't want to put words in your mouth but this is a question. if a state has reason to think -- is telling women about only one set of options and not another set of options, but here
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the case would be they're only telling women about abortion providers, and they're not telling women about other ways that 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 the world, and some are abortion providers and some are crisis pregnancy centers, and some are something else, that that would not be permissible? >> your honor, that would be -- since it's in an unlicensed facility that the requirement is being framed up, that would be judged under strict judicial scrutiny, and i don't believe it would be required. if in the license context, however, it would still be the same framework, but the analysis would be slightly different. because it's here --
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>> i guess i'm not sure licensed, unlicensed. you were suggesting that everything turned on whether a medical procedure was going to be performed. and my hypothetical was designed to take out the medical procedure. in other words, this is a facility that just refers women. but it refers women only to abortion providers. and the state decides we don't want facilities that refer women only to abortion providers, we want facilities that will 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 actually are a lot of options and here's how you can access them, would that be unconstitutional? >> yes, your honor, because under your hypothetical it's a targeted law. it's aimed at particular people and not given to all doctors who diagnose and confirm pregnancies. >> what if it wasn't targeted? what if there were a state law that required every doctor or facility that provides medical treatment for pregnant women to post a notice setting out the full range of options available
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to those women and where they might obtain services at no cost if those, if those are available? would there be anything wrong with a law like that? >> well, your honor, to require to require pro-life doctors in a inic or others to facilitate an abortion would be constitutionally problematic. >> what if this notice provided all of the options and applied to everybody and applied to pro-life facilities and to clinics that perform abortions? >> i understand -- >> provide no other form of assistance for pregnant women? >> your honor, the outcome would be the same? as my prior answer. it would be unconstitutional to require that statement to a
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doctor who is pro-life because of the free exercise issues. this case is different because not only is the requirement is which doctors have to give a notice, the notice itself is gerrymandered. and not giving women all the answers. the state will pay for abortion services but does not tell california women -- >> there are a lot of different things. f you could say it is simply possible. what is sauce for the goose is sauce for the gander. i think what is bothering from these questions as it bothers me, there are pro-choice states and pro-life states. you a pro-life state says have to tell people about adoption, why can't a pro-choice
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state tell a doctor, a facility, whatever it is, you have to tell people about abortion? that's simple. the one we said you can make a doctor who is very pro-life tell her about abortion and why don't we have to say to keep sauces the same and if you are a pro-choice state, you can make these people being told about abortions. >> there is a line of demarcation. but the laws that have been upheld are doctors who are going to perform abortions. >> you want to draw a line as to whether it's a doctor is about to do it. >> yes. >> and my other question, you have a totally different line which you are attacking this and that is you say, which is certainly a point that this
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60 to 70 ks out pro-life facilities and says you have to post these signs, but nobody else does? >> that's correct. >> that sounds like you have a point there if that's correct. it doesn't have to be a trial on that. this is a preliminary injunction. don't you have to have a trial or present some evidence? i don't know what your evidence is and i don't know what the evidence is on the other side. and can we decide that without knowing the evidence? >> your honor, the gerry mannedering of the statutes is evidence of the statute. it begins by only regulating clinics that are licensed under section 1204 in the california code. that is limited to nonprofit community clinics. all doctors in private practice
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is out of that. additionally, among those nonprofit clinics, the clinics that are in general practice are exempted out even though they serve pregnant women. then you take the last gerrymandering in the statute and among those who are giving pregnancy services and sign up for the family program which requires to dispense drugs, then you are out of the program. there are a legislative series of gerrymandering and resulted with nonprofit pro-life pregnancy centers are required to post the notice and the notice is biased. >> with respect to the adequacy of the record we have for unlicensed clinics. we don't know the nature of the burden that would be imposed by
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the 48 fund requirement. there is some evidence in the briefs that it might be a $39,000 a month tax for advertisements, but what do we do for a lack of the record here and wait for it? faced honor, this court a similar situation. and this court didn't have a financial record and didn't have a financial record in the "miami herald" case. in the advertising context, the rule is that the font must be larger than the main body of the ad or the same size as the main body of the ad with special fonts and colors. think of a chevy ad about disclaimers of financing had to be as big or bigger than the
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word chevrolet. that is an effort to clutter the record. >> we don't know what kind of adjustments might have been made because this case went off without any sort of evidentiary hearing. but to test what your position is, suppose the law has been simply the people who don't provide abortions or contraceptive services would have to say we don't perform ortions and we don't provide contraceptive services. then everybody would know what is being offered. would that be constitutional? >> not if it is being done in a targeted fashion. if all doctors who treat pregnant women under the same requirements, the imposition upon a targeted group of people.
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because they don't like the abortion this court outlawed it. >> counsel, can you please explain to me what the difference between a licensed and unlicensed in terms of the services and then i have a question based on that. you seem to be basing your argument on the point that at least the unlicensed people are not providing procedures, correct? >> they are not providing any medical services. >> they are advertising themselves -- i looked at a few resource d there is a enter website and i'm fairly sophisticated. there is a woman on the home page with a uniform that looks like a nurse's uniform in front of an ultrasound machine. it hows an exam room, the
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says it will educate clients about different abortion methods available and describe in medical terms different abortion procedures. the web site also say clients will be evaluated by nurses and that they follow all hipa regulations. if a reasonable person could look at this website and think that you are giving medical unlicensed the notice be wrong? >> to answer the first part of your question, our unlicensed facilities do not provide any medical services being defined as -- >> but they do provide medical advice. >> they provide advice on the topic of pregnancy. >> how is that different from what a doctor does on when you
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are going for a pregnancy and you see the doctor and the doctor will describe hopefully the benefits of a pregnancy and perhaps its risks because depending -- not all pregnancies are without complications. this is consulting about a mel 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 choose to talk to people if you are an unlicensed facility about pregnancy, why shouldn't you tell people you are not a doctor? >> in casey again, the doctors that were being regulated were the ones performing abortions.
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the court made note that it upheld that requirement because it was parallel to the general practice of informed consent. unlicensed people who talk to women and say you could choose parent hood or adoption, they talk about the issue of pregnancy. >> is it ok -- is it wrong for a state to tell agencies who give advice on immigration rights, who says if you are going to give advice on immigration matters, you better tell you are not a lawyer? >> those immigration people are give people the ability to intervene. that would be the practice of law. that is similar to a statute where natural paths and alternative providers are engaged in the practice of medicine are allowed to do so. >> you are redefining medicine.
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you need a license to practice medicine. >> true. >> if you are giving people advice about pregnancy when you are not a licensed facility, please explain to me what is oth misleading, incorrect or suggest i have in any way that a person has to do something like go to a doctor. how is it doing anything by telling people despite the picture on the website, this is not a medical facility. >> it is illegal in california to practice medicine without a license. if that's what is going on here, surely california would have found a way to do that. >> in this case, i didn't go beyond the record on look on the internet because i don't think we should do that, but i have a hypothetical.
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what would happen if an unlicensed center just had a billboard that said choose life, would they have to make the disclosure? >> yes, your honor. >> they have to make a 20-word -- >> it would be 29 words in the same size font in 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? >> i don't think they will disagree. >> it seems to me that this was an undue burden in that instance and that should suffice to invalidate the statute. >> that is our position. >> you have been pening a lot trying to distinguish consent and certainly some of the requirements in casey. talking about the risk of
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procedures. but there were requirements in casey that don't have much to do with informed consent as i have ever understood it. the doctor having to inform patients about the medical benefits that may be available for childbirth and neonatal care and that the father would be liable to pay child support. so those kind of requirements, they just don't seem to have much to do about informed consent and this goes back to just tries breyer's sauce for the goose point, this is the flip side of the requirements. how am i supposed to think about that? >> your honor, they are triggered by a medical intervention. >> there is a fack will tall difference between a doctor in the room and if there is not.
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>> the court held they were in casey and informing women to alternatives. i see my time has got to like to eserve for rebuttal. >> mr. chief justice and may it please the court, first amendment allows states to require truthful factual disclosures for goods and services. and what california has done is require pregnancy centers to make disclosures about services they do not provide without any showing by the state that it needs to compel speech. were about if if you
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providing women's health services, you have to list all the services that you provide. and that would apply to everybody. it would apply to facilities that provide abortion and contraceptive services and would -- to the legal care everyone like on food, you have to list all the ingredients. >> if california said to our providers, you have to put a notice up on the wall that list the services that you provide, that is truthful and factual information about what you are doing. and i think the concern here is that the license notice in california and similar statutes in two states, hawaii and illinois are different from the vast bulk of disclosure. >> i didn't understand the question to be along the lines that you've answered. it's not a requirement of
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whether or not the facility must list the services they provide but can they be required to list services that they don't provide. >> does everyone in the women's health care business if the state decides we want you to tell the public what you provide. that's all. >> to the extent that notice is about your own services, we think that is permissible. it is full disclosure about your wn services.
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>> there are millions of people in this country who have views on this subject that are opposed one to the other. that to me suggests the law should keep it as simple as possible and sauce for the goose, sauce for the gander. we have the law is permissible, 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 have the same rules. you, the government and nifla are trying to make a distinction
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there. and i need to know if you're right. the only distinction i hear so far is about a doctor about to perform and the other has a counselor. >> i agree with you the sauce for the goose and gander. when you are performing a medical procedure and making 80. closures, page >> i agree. but i think for most people, you would think family planning. you know, family planning. that's the category. and the woman will make a decision and the state can tell them some things they have to say. and we know they can tell them about adoption and make them tell them about adoption, why can't they tell them about abortion? >> when you are going in to have
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a pour and you have to make certain disscloshe sure. >> can you let him finish the answer. >> that is a disclosure to the service you are providing and casey drew that pretty broadly. you have to make an informed choice. what we are saying, the more you get away from that kind of disclosure about what you are doing with that patient or customer or client, the more scrutiny -- >> why shouldn't there be -- a state says, 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 and do not do adoption and say to crisis pregnancy centers, we do adoption, we do not do family
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planning and abortion. the state thinks that would be a good system, because when a woman goes in to either one of these kinds of places, they'll know what's there and what is not there. why would that be problematic? >> once it's no longer tied to the specific goods and services that the clinic or center whom ever is providing. think are making you advertise what other people are doing. and this is one step beyond your hypothetical. say what you do and don't do. it's saying, we want people to know about services -- >> how is that different than casey? in casey we required doctors to hand out state-created materials telling the women about what services the state and others provided. adoption centers and fathers had
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to pay things. you keep repeating it. these centers, i assume the licensed and unlbsed ones are 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. on 't know how counseling the pregnancy state is not part of medical advice in the same way a doctor gives it when he is considering an abortion procedure. i don't understand the difference. medical related procedures and both are being asked, said there is a distinction in not advising someone else's services but in casey, we permitted it. explain to me why there is a difference. >> i agree with everything you said in the back half there and
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if california were coming in and saying before you licensed clinic perform an ultrasound, you have to provide certain information to make sure there is an informed choice in the face of risks and alternatives and then it's like casey and the question is how much disclosure do you have to provide and casey has given us guidance. on the licensed side, it's not helping the women who come into the clinic and make an informed choice to opt into a medical an dure and it is we have interest in having them know we provide low and free-cost service. that is tailor made and let the center do and tell people what it provides. >> could i ask something about your brofe that troubles me and that is the government's request that we recognize a new category
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of speech called professional speech which is subject to a lesser standard of review. i mean this case is very 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 stevens and other cases where the court has said we are 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 lower courts. but take a couple of examples. journalists are professionals, so would they be subject to this standard? how about economists? how about scientists? how about a fortune teller. the fourth circuit court said a fortune teller is a
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professional. how about someone who writes advice column? aren't we going into dangerous territory? >> the third circuit pib's in king the court has talked about professional speech and in the contact of commercial speech and lumped into cases. we have said there are similar doctrines and overlap and have different origins and there are certain professions that are regulated and wouldn't include journalists but include doctors and lawyers and we do think there is some room for the states in that area and what we have tried to say whether it is zouder, if it is a disclosure that is a fairly low-level of scrutiny. and we may not get to strict scrutiny but heightened
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scrutiny. if the court goes all the way to strict scrutiny, every disclosure that a manufacturer has to make about some prouth that is out in the public that has a risk, that is going to delete strict scrutiny and undermine the first amendment. > thank you. >> mr. chief justice and may it please the court, the interest serve by the disclosure is like the disclosure in casey promoting informed choice by a patient. it empowers the woman by explaining that her financial circumstance does not make her unable to access alternative and supplemental care including full prenatal care that the petitioners do not supply. gives her that knowledge to be useful because pregnancy and
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that is extremely time critical. there is a sense when you read the statute there at least the question arises as to whether the statute has been gerrymandered. because if it has, there is a serious issue. well, if we have these general disclosure requirements and don't want to apply them generally but apply them to some speakers whose speech we don't like. >> the disclosure is targeted at women who seek free care for pregnancy and not any particular view point. and clinics that by their licensing status provide free or sliding scale low-cost pregnancy care are where these women are going to be found. >> if you have a law that is neutral on its face and then it has a lot of crazy exemptions
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and when you apply all of the exemptions, what you are left with is a very strange pattern and gee, it turns out that just about the only clinics that are covered by this is pro-life clinics, do you think it is possible to infer possible discrimination? >> yes. >> let me ask you about some of these 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, let's say it has 30 pregnant women come in a month, but that's the primary thing it does. and then you could have a big clinic that has 100 pregnant women come in a month but it does so many other things that pregnancy is not the primary concern. why does the law apply to one
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and not the other? >> that serves the purpose of having the disclosure mostly made as opposed to making it in the con teches. legislature should be required to apply speech requirements. >> i don't understand that. why does it apply to nonprofits and not for profits? the purpose is to get this information out to poor women, don't you think there are examples of poor women who stumble into a for-profit facility. wouldn't it be beneficial to know they can get treatment at costs or most for-profits exempted. >> for-profit clinics do not treat women who need free and sliding cost care in the same way. it is always possible to imagine
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a new boundary for the law. but under scrutiny and a legislature can concentrate its efforts -- >> what about individual doctors? why are they exempt? >> individual doctors specialize as a category in treating people who have a pay to pay for care whether they are enrolled in medicaid or health insurance or have the finances. free clinics are not on the same page. >> you get very suspicious pattern and i don't know that we need to go into statistics about what the percentage of covered but we havepro-life 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, 398.5% of the covered clinics are pro-life
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clinics. >> we are speaking outside mr. klein: that evidence in the state court did not -- was off by i think a factor of 10 in terms of how many covered non-- i mean, it differed by a factor of 10 when it told the state court how many covered nonanti-abortion -- justice alito: what is your position on that? what's the percentage? mr. klein: your honor, 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 theyry lie on self-reporting -- they rely on self-reporting that's hard to interpret as to who does primarily pregnancy care. it's the kind of thing where record would be useful. >> could you say a few words about how these boundaries came about? in other words you have these various lines that the statute draws, then it has these
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exemptions. justice kagan: and what was the state's thinking, i mean, you know, i realize that the state, there are lots of people who were thinking different things, but is there -- give me a little bit more about your theory of the case even as to why these exemptions exist and why these lines are drawn. you've been saying, well, we go where the problem is. but tell me where you knew where the problem was, tell me what you thought the problem actually was. what were you doing? what were you trying to do? mr. klein: let me start with the question what have the problem is. the problem is that the state has overseen and the state legislature has overseen an expansion of public medical care in california. but has experienced that publicity campaigns leal leave a gap that was highly concerning for them because of the medical issues and the severe timing con strainlts to get care that makes a difference. so the goal of the statute is
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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 three collinics -- free collinics. there was a re-- clinics. there was a reference to exemption. the exemption, leaving aside the exemption for federal clinics which i think is obvious, the exemption for medical f-pack providers reflect as a notice would serve little purpose at a provider which already provides care under those programs and which has the incentive to help women enroll in them. justice kagan: one way to think about how a statute like this gets enacted is to say, 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 what the problem is and how a statute like this comes about is more targeted.
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it's to say, there are these crisis pregnancy centers all over california and we know that women just go into them and they don't realize what they are and they're being subject to being misled and we think that this is a terrible problem. and it might be that the state could legitimately view that as a problem. there's a much more targeted problem. whether it's a problem or not, it's much more targeted than the first. i guess what i'm asking is, is this the second kind of statute sore it the first kind of statute? mr. klein: it's the first kind of statute and the author's -- >> 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? mr. klein: well, your honor, the legislature is aware of the
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shortcomings of other methods, as evidenced by the gap that has remained despite their efforts to publicize. now, what you describe as free riding i respectfully submit is a permissible speech requirement in the professional context. justice gorsuch: if you're trying to educate a class of persons about their rights, it's pretty unusual to force a private speaker to do that for you. under the first amendment. mr. klein: i don't think it's unusual to require a professional to explain alternatives or additional options that are available. as in kacey and also as in the laws that have been cited in our brief. the new york brief. >> maybe you could -- you could finish your answer to justice kagen's question? justice kagan: i don't even remember which was the first kind of statute anymore and what was the second kind of statute. i was saying a state could really be responding to a sort -- a feeling
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that in general poor women don't have access to information or a state could be responding to a feeling that there are a particular kind of center that is misleading women as to what they do and don't provide. i can see this statute arising in either of those two ways and wanted you to tell me why you thought it arose in the first way and not in the second. mr. klein: 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 carrying 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. the legislature had some awareness of this, but they didn't draw a statute with that as the primary --
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>> that's what i gave up on. i don't know. i came away from these breefsthande i got the impression that -- breefs and i think i got the impression that there are 60 or so enters, maybe 70, that are really pro-life, for religious reasons of different kinesdz. justice breyer: and they don't want to talk about abortions. then it seemed to me maybe there are a thousand centers altogether in california or several hundred and i really did end up wondering, well, you know, 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 the cal medical thing 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? and i don't see -- i mean, 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 whether women who don't go to these 67 centers but do go to say 700
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are all informed, whether the center is a member of the cal medical program or 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? mr. klein: we agree. the record at the preliminary injunction was not sufficient to support an injunction. at the merit stage there would presumably be a great deal of evidence on both sides. justice kagan: can we go back to the question justice kennedy asked -- justice sotomayor: can we go back to the question justice kennedy asked. can you 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 dical facility in --
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mr. klein: i don't think so. unless the facility -- i mean, what subjects a facility to the are -- it's unlicensed, this is on page 79-a of the petitioner's appendix, are things like offering ultrasounds, sonograms. >> what if it weren't? we're dealing with the more general principle. what if you had an organization that simply provided adoption services and advertised there is an alternative to abortion, try adoption. justice roberts: could the state make them include the disclosure requirement that you have with respect to licensed facilities? because that's an alternative to pregnancy, i would say you'd want to make all the abortion alternatives also fully available and make the low-income women aware of those. could you impose that requirement on that facility? mr. klein: i don't think so. such a requirement wouldn't be serving the same interest. let me explain why.
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these distribute licensed facilities provide medical care, pages 91 of the petitioner's appendix. their complaint describes medical care they provide to pregnant women. and so women go there -- justice roberts: what additional, what, ultrasounds 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 -- mr. klein: in other words, would what would make it subjected to the same kind of requirements as a licensed center? justice roberts: yeah. at one point, you say, let's say that ultrasounds are out of it. is disclosure still required for that facility? mr. klein: i don't think the ultrasounds per se make the difference. what would make the difference as a constitutional matter is is it licensed as a medical facility and does it provide medical care to people -- justice roberts: pregnancy testing, if the adoption center
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also provided pregnancy testing, could you cover them? mr. klein: if it provided it as a licensed medical service through licensed medical providers, then the state would have to justify the sufficiently important state interest with the -- justice roberts: what's your answer, though? it provides two services. adoption and pregnancy testing. could you impose the disclosure requirement on that facility? mr. klein: i think it would be much more difficult to justify -- justice roberts: i know. that's why i'm asking the question. [laughter] trying to figure out, i'm trying to figure out the limits of your argument. the centers here have a variety of services they provide and you say because of that we can impose this requirement on them. before we can say yes or no to your argument, 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? mr. klein: through a licensed provider, yes, they could. justice roberts: i don't know
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what you mean by through a licensed provider. that's all they do. they counsel on adoption and provide pregnancy testing. could you require them to say, look, there are other options you may want to consider and therefore here's a disclosure saying, here are the facilities where you can get other options? mr. klein: on reflection, i think probably not. and here's the difference. because they're providing a so much more limited set of medical services that it may be less -- justice sotomayor: could we go back to my zpwhe i have read the law where -- i have read the law with respect to facility and it requires a facility to do one of two -- two of four things. before it qualifies under the laws. abortion, you appear right that they have to, one, offer trasounds, sonograms, or prenatal care or pregnancy testing or diagnosis or, three,
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prenatal monday gram tests or pregnancy -- monday grams tests and pregnancy tests. but they have to do two or to more of those things. let's go back to the question justice kennedy asked. one of thesed me can facilities says pro-life and their name. is -- medical facilities says pro-life and their name. are they required to post a notice? so you started by answering the question and i don't think you finished. mr. klein: the answer is no. they're not required to. justice sotomayor: because they're not offering in the advertising one of these services? mr. klein: right. they're not doing -- >> 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 -- it has to include this disclaimer. we're not licensed. mr. klein: but in order to be a covered unlicensed facility, it has to do two or more -- justice alito: yes, it has to
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do those things. so you have a facility that offers pregnancy testing and they advertise that they offer pregnancy testing. that's all they do. and they put up an ad that says, choose life, they have to put in the disclaimer. mr. klein: yes. in that circumstance they may be required to do that. >> do you agree that mandating speech that the speaker would not otherwise give in, indeed does not agree, with alters the content of the message? mr. klein: yes, it does. justice kennedy: so -- mr. kennedy: so then you're saying -- justice kennedy: so then you're saying the content of the message can be altered, even though they're not providing medical services? mr. klein: yes. because the criteria are designed not to see who's providing medical services, that's taken care of by our unlicensed practice law. it's 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 is spending her time and resources to do that and is
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unable to evaluate what -- >> if we uphold your argument, if we agree with your argument, cot state then amend its statute -- could the state then amend its statute and say that any evangelical group that has a seven-day rally for pro-life has to give required information of this sort? mr. klein:, no i don't think that would -- mr. kennedy: why not? -- justice kennedy: why not? mr. klein: putting aside the free exercise targeting, -- justice kennedy: oh, so religion is not a part of this calculus in the case that you have? mr. klein: your hypothetical statute did target at evangelical groups. that is on its face unconstitutional. i'm assuming -- ken it didn't target it, -- justice kennedy: it didn't target it, it included it. mr. klein: i think the statute is reasonably read and applied in recognition of its purposes. which are the purpose to prevent women from making their
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decisions about where to go based on mistaken confusion about what's offered. justice ginsburg: there was a question raised about 13 different languages and what a burden that would be. i don't know what the state's answer to that. it's one thing to say, we're not a licensed medical provider. but if you have to say that, those two sentences in 13 different languages, it can be very burdensome. mr. klein: 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 those ads, the statute would be unconstitutional as applied to that. >> 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
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angeles county. in how many languages must they print the disclosure? the disclaimer? mr. klein: it would be 13 and if a plaintiff showed standing and made a record of the kind of ad that they used to run and that it would be impossible to run it that way, it would be unconstitutional. but that requires actual standing -- justice alito: what kind of an ad -- if it's -- what kind of an ad -- as to what type of ad would that not be unconstitutional? mr. klein: there's 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,ify may, to address one -- >> so you want me to have a remapped to tell them what a billboard is? there's a lot of things we don't know but i think we know what a billboard is. mr. klein: we don't know what ads these run.
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it's not in the complaint. the court was not -- and the language issue wasn't raised at ll in preliminary injunctions. justice ginsburg: what about what i said about filings about false and misleading representations? has california ever brought charges against any of these places for false and misleading advertising? mr. klein: i'm not aware that the state has. i believe that the city and county of san francisco has, for instance. but in any case, that doesn't address the -- such a procedure would not be superior. first, that kind of policing -- policing that kind of issue would not necessarily be more speech protective, since it might involve undercover patient record subpoenas, -- >> it would have the virtue of applying evenly to all persons and all industries and a law that is very familiar.
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justice gorsuch: i mean anti-fraud provisions in commercial speech are well known and don't pose any of the problems we've been discussing today. why wouldn't that be a superior mechanism for addressing these concerns? if we're talking about a narrower set of concerns. mr. klein: 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 everything that the petitioners are saying to assess it. as opposed to requiring a two-sentence notice that mostly obviates the need for that because it gives women the information to protect themselves and make informed decisions in the very limited time that they have available. simply by seeing the notice to call the government. >> the one requires to you compel speech from someone else. that implicates first amendment concerns. the second is, puts the burden on government to prove that someone has abused their free speech rights. justice gorsuch: and this
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court's normally pretty jealously protective of speech. why isn't, again, that latter approach preferable? mr. klein: for the same reason that it wasn't a necessary step in kacey -- casey. in the regulation of professional speech, the government, given the close and reliant relationship that the patient has on her physician, can require a certain amount of speech to ensure that the patient makes informed decisions about very important matters. the main difference from casey is how much less burdensome this disclosure is because there's more flex inability how it can be delivered and because -- flexibility in how it can be delivered and it's only giving 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 disclosure in casey required. justice sotomayor: would it be fair to say and still don't have a full answer to my question, all right, pro-life, nothing else. an unlicensed facility meets
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all of the criteria. has an ad that just says pro-life. and puts its name. does it have to give the notice? yes or no? mr. klein: yes. if it meets the other criteria. and it's possible -- justice sotomayor: that seems to me more burdensome and wrong. because it's not tied to an advertisement that is promoting medical services. mr. klein: may i continue? it's possible that that kind of as applied challenge would result in validating that application. addresses it particular problems. thank you. >> thank you, counsel. mr. farris, you have five minutes remaining. mr. farris: thank you, mr. chief justice. i would like to first address justice kagan's concern about the jerrymandering issue. on page five of our reply brief we point out the state's website for where the state
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tells low-income women how they can go to private doctors and get services for pregnancy. yet those doctors are all exempt from the act, as are all nonprofit clinics that have the general kind of practice that justice aly thea to -- alito's question described. as to the ad burden. the amick us heart beat international on page 24 of their brief gave a markup 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 clear burdensome and the unlicensed and i think the last answer from california was correct. is it would be triggered if they are otherwise mandated by the law. i'd -- begins ins begins the answer was that -- justice ginsburg: the answer was that this was not brought up in this case until now. and it should be aired below. mr. farris: not not correct.
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it was raised below. it's in the complaint. it's in the briefing of the district court. it's in the oral argument in the district court. it's the briefing and oral argument in the court of appeals. all those details are on footnote five of our reply brief. the good for the goose, good for the and goer concern, here's what's going to happen if california's law's upheld. a pro-life state is doing find out that 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, we have taken a big -- a step in the wrong direction of politicizing the practice of medicine. if everyone who recommends abortion can have to give these kind of -- >> you have to be a professional group giving advice in a professional way. it's not, i don't think, the goose and and goer has to do with everybody in the world. mr. beyer: -- justice breyer: and there are things called family planning
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clinics, etc. mr. farris: certainly. so taking it on a narrow and broader construction. the narrow construction is, as i understood your hypothetical, a family planning sent that are didn't perform abortions but did all other services. i believe it would be 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 the practice of medicine in that context. but if we're not going to jerry manned there are and say all doctors -- gerrymander this and say all doctors who treat pregnant 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
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is a constitutionally appropriate line. thank you, your honor. i rest. justice roberts: thank you, counsel. the case is submitted. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2018] >> facebook isn't just -- you're not just handing over things you like when you click on like. it's also aggregating an enormous amount of information. even if you start typing a status update and change your mind, and don't go ahead and type it, facebook collects those and analyzes those too. like, why did you not continue typing it? so i think the deal that we think we're make something a fairly limited amount of information. the reality is a surveillance machine that collects and tracks you across the web, across -- buys information from you about -- by third parties, it all together and then uses it to target you. >> watch the communicators tonight at kl eastern on c-span2 -- 8:00 eastern on
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c-span2. a tonight on landmark cases, case about student free speech. in 1965, five students from des moines, iowa, wore black arm bands to school to protest the vietnam war. violating local school policies. the students challenged the school board's free speech restrictions and the resulting supreme court decision established that the students keep their first amendment rights on school grounds. our guest to discuss this landmark case are measure machado area betting tinker, one of the fight of -- mary beth tinker, one of the students. after two decades as a pediatric nurse, she began working as a free speech advocate for students, touring nationally as the speaker at schools and youth centers. and an independent federal appellate litigater with experience at the supreme court, including work on more than 100 cases.
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he clerked for supreme court justice clarence thomas in 1996. watch landmark cases tonight at 9:00 p.m. eastern on c-span. and join the conversation. our #landmarkcases and follow us at c-span. we have resources on our website for background on each case. the landmark cases companion book, a link to the national constitution center's interactive constitution, and he landmark cases podcast at >> tuesday, president donald trump welcomes french president emmanuel macron to the white house for an official state visit. our live coverage begins tuesday with the arrival of the french president and mrs. mack rone at the white house -- macron at the white house. and welcoming remarks by the two heads of state. then live coverage of president trump's first state dinner starting at 6:30 p.m. eastern, with guest arifles and dinner
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toasts -- arrivals and dinner toasts. the official state visit of french president emmanuel macron live starting tuesday morning on c-span. and on the free c-span radio app. >> and our congressional coverage this week will include wednesday, testimony from attorney general jeff sessions on the justice department's 2019 budget request. he'll speak before the senate appropriations subcommittee. that's live at 2:30 wednesday on c-span3. and thursday, the senate judiciary committee debates legislation aimed to provide protection for special counsels. while setting requirements and limitations on the removal from office of a special counsel appointed by an attorney general. that's live thursday at 10:00 a.m. eastern on c-span3. and next up here on c-span, we'll take you live to capitol hill. bob corker, the chairman of the
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senate foreign regulations committee, they will hold a meeting to vote on president trump's nomination of -- for secretary of state, krajinovic director, current krajinovic director, mike pompeo. earlier today, indiana senator joe donnelly announcing he would be voting to be mr. pompeo. joining fellow democrats, joe manchin and heidi heitkamp. you can see sew some protests under way in the senate room. by the way, fox is tweeting that senior administration officials indicate to fox that a confirmation vote for mr. pompeo on the floor of the senate is likely to come thursday. this meeting should get under way momentarily. live coverage here on c-span.
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>> moments ago, you saw senator bob corker speaking with john wyoming, senator from one of the 11 republicans on the committee. there are 10 democrats on the committee. it is likely that most if not all of the democrats will vote against the nomination. senator rand paul from kentucky voicing his opposition earlier to mike pompeo although he has justtweeted saying -- i finished speaking with president trump after speaking with him several times today and i also met with and spoke to director pompeo but no indication in the tweet as to whether rand paul will support the nomination. we will find out the vote expected shortly here. live coverage here on c-span.
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>> the meeting is about to get
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underway. some tweets from senator rand paul -- having received assurances from president trump and director pompeo that he agrees with the president on these important issues and those being a rocket and afghanistan, "i have decided to support his nomination to be our next secretary of state." paul.test from rand a series of tweets. after speaking to president trump and meeting with mike pompeo saying he has agreed to support the nomination to be our next secretary of state. up most of the members are in the room. or is a vote on the senate floor in just a bit. we will see if that impacts today's meeting. live coverage here on c-span.
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ar >> the cheer of the committee,
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bob corker in the ranking democrat, robert menendez talking with aids and senator cardin from maryland. senator paul saying that he will support the nomination of mike pompeo to be secretary of state saying after calling continuously for director pompeo to support the president's believes that the iraq war was a mistake, today i received confirmation from the director that he agrees with president trump. senator paul tweeting again -- president trump believes iraq was a mistake and regime change destabilized the region and we must end our involvement in afghanistan and a final tweet from senator paul saying -- having received assurances from president trump and director pompeo that he agrees with the president on these important issues, i have decided to support his nomination to be our
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next secretary of state. that happening less than 10 minutes ago, that tweet from senator paul. of meeting this afternoon the senate foreign relations committee to vote on the nomination of mike pompeo to be the next secretary of state.
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sen. corker: the foreign relations committee will come to order. we pride ourselves on starting meetings exactly on time. things happenfew in the last few minutes and therefor, we are discussing a way forward for this.


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