US Supreme Court to decide California law on ‘crisis pregnancy centers’

The U.S. Supreme Court will decide whether California can require hundreds of antiabortion clinics, known as “crisis pregnancy centers,” to notify patients that the state makes abortion and other reproductive health care available at little or no cost.

A state law requiring the notifications took effect in 2016 and lower federal courts upheld it, saying California was merely requiring the clinics to provide accurate health care information that their patients have a right to receive. But the high court granted review Monday of the clinics’ claim that the law violates their freedom of speech.

“Forcing anyone to provide free advertising for the abortion industry is unthinkable — especially when it’s the government doing the forcing,” said Kevin Theriot, a lawyer for Alliance Defending Freedom, a religious conservative group representing the clinics.

State Attorney General Xavier Becerra promised to defend the law. “Information is power, and all women should have access to the information they need when making personal health-care decisions,” he said in a statement.

Opponents had also argued that the state law violates their religious freedom, but the court granted review of only the free-speech issue. The justices will hear arguments early next year and issue a ruling during the term that ends in June.

Crisis pregnancy centers offer free counseling and services, including pregnancy tests and ultrasound examinations, but steer women away from abortions. Some of the centers have advised their patients that abortion is physically and psychologically harmful.

According to a legislative staff analysis in 2015, there were about 2,500 centers nationwide and at least 228 in California.

The California law, sponsored by Assemblyman David Chiu, D-San Francisco, requires all state-licensed reproductive health centers, including crisis pregnancy centers that have a doctor on staff, to notify clients of the full range of low-cost or free reproductive health services available under state law.

Those services include contraception, prenatal care and abortion. The notices must list the phone number of the local county social service center. The law requires clinics without a doctor to notify clients that they are not licensed by the state.

On a court closely divided on both access to abortion and the scope of free speech, the ruling may depend on where Justice Anthony Kennedy strikes the balance between those rights.

Kennedy cast the deciding vote last year when the court, in a 5-3 decision, struck down a Texas law that required the state’s abortion clinics to meet the same standards as surgery centers, and their doctors to have admitting privileges at nearby hospitals. The law would have shut down most of Texas’ abortion clinics.

The court majority said those requirements would not promote health care but would impose an “undue burden” on access to abortion — a standard the court had established in a 1992 ruling, joined by Kennedy, that maintained a woman’s right to terminate her pregnancy.

But in 2007, Kennedy wrote a ruling upholding a federal ban on a common mid-term abortion procedure, which opponents labeled “partial-birth abortions,” and asserted that some women regret their decisions to abort.

In deciding to review the California law, the Supreme Court set aside lower-court decisions in the state’s favor, and that should be worrisome for supporters of abortion rights, said Stanford Law Professor Deborah Rhode.

The law was prompted by complaints that the pregnancy centers had misled women into thinking they offered abortion services, Rhode said. She said the state’s notification requirements could be considered “a form of classic corrective speech.”

Rory Little, a UC Hastings College of the Law professor and former Supreme Court law clerk, said the case was the reverse-image of the court’s 1991 ruling in another dispute involving abortion and free speech. Kennedy was part of a conservative 5-4 majority upholding a federal law that prohibited doctors who received federal family-planning funds from recommending abortion to their patients.

The majority in that case reasoned that those who accepted government funds must abide by the government’s conditions, Little said. In the current case, he said, California will argue that clinics doing business in the state must adhere to the state’s standards on “health, safety and welfare of the general population,” like tobacco companies that post government warnings on their products.

In an October 2016 ruling that allowed the law to remain in place, the Ninth U.S. Circuit Court of Appeals in San Francisco said the state has a legitimate interest in “ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion.”

The law does not “encourage, suggest or imply that women should use those state-funded services,” Judge Dorothy Nelson said in the 3-0 decision.

But Alliance Defending Freedom, in its Supreme Court appeal, said the law had a declared purpose of “targeting pro-life ‘crisis pregnancy centers’ based on their viewpoint.”

“The state should protect freedom of speech and freedom from coerced speech,” Theriot, the group’s lawyer, said Monday.

The California law is also under attack in state courts. A Riverside County judge ruled last month that the law violates the state constitutional guarantee of free speech by forcing a clinic “to speak words with which it profoundly disagrees.” Becerra is appealing that ruling.

The Supreme Court case is National Institute of Family and Life Advocates vs. Becerra, 16-1140.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko