Although Justice Sotomayor often joins the same opinions as Justice Ginsburg, they do depart on an important philosophy of judging. Justice Ginsburg has maintained that her gender makes no difference to judging. Justice Sotomayor, while still a Circuit Court judge, made a speech questioning the famous notion that a wise old woman and a wise old man would reach the same conclusion when deciding cases. She famously said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” See Charlie Savage, A Judge’s View of Judging Is on the Record, NY Times (May 15, 2009). Not surprisingly, this quote got a lot of play during Sotomayor’s confirmation hearings.
I couldn’t stop thinking about Justice Sotomayor’s philosophy of bringing diverse life experiences to the bench when I read the Supreme Court’s decision in NIFLA v. Becerra. NIFLA is the National Institute of Family and Life Advocates, an organization that runs crisis pregnancy centers in California. The California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (FACT Act) requires that clinics that primarily serve pregnant women must post and hand out certain notices. See National Institute of Family and Life Advocates v. Becerra, No. 16-1140, 585 U.S. _, slip op. at 5 (June 26, 2018). Specifically, the crisis pregnancy centers must notify women that California provides free or low-cost services, including abortions. Id. The clinics, which are pro-life and work to reduce abortions, sued, arguing that the FACT Act violates their First Amendment protection against compelled speech.
NIFLA won. The Court ruled in a 5–4 decision that they were likely to prevail on their First Amendment claim because the notices are content-based compelled speech–in other words, the government is compelling the clinics to provide a specific message. No exceptions to the strict prohibition against content-based regulation of speech applied. Id. at 18.
The majority decision will be of interest only to a First Amendment scholar. After a lengthy discussion of precedent surrounding “professional speech,” Justice Thomas concludes the Court must apply strict scrutiny to the FACT Act because “by compelling individuals to speak a particular message, such notices alter the content of their speech.” Id. at 11 (internal citations omitted). The lower court and the dissenting Justices disagree. They would rule that a lower level of scrutiny is applied because the Court has allowed the regulation of professional speech in many cases, including in a case related to abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Consider how many notices that businesses are compelled by the law to post or provide to customers. The dissent points out that this notice is no different and should be allowed as long as California has a legitimate interest. See National Institute of Family and Life Advocates v. Becerra, No. 16-1140, 585 U.S. _, slip op. at 30–34 (June 26, 2018) (Breyer, J. dissenting).
For me, this case shows how Justice Thomas is completely divorced from the reality of a woman going to a crisis pregnancy center. He reasons that posting a notice about the availability of free reproductive health care, including abortion, is not about a medical procedure at all. Id. at 15 (majority opinion). He thus distinguishes Planned Parenthood v. Casey, where the Court upheld an informed consent requirement for abortion against a First Amendment challenge. Id. at 14. Justice Thomas also argues that the law is under-inclusive because it only applies to a subset of clinics and not effective because there are many ways to provide information about free services to women, including advertising campaigns on the subway. Id. at 19.
I hate to disagree with my hero RBG, but this is where having a woman on the bench makes a difference in judging. Or a man who has occasionally discussed reproductive health with a friend, family member, or loved one. Crisis pregnancy centers play an important role in reproductive health when run responsibly, just as abortion clinics do. Women who go to crisis pregnancy centers are in crisis. They are not reading signs on the subway or other advertising campaigns that Justice Thomas suggests. They are trying to figure out who to trust for accurate information about their health. Women should be able to rely on obtaining complete information from the medical professionals in all clinics. If women in crisis are not told that they can obtain a free abortion by the state of California it could alter their decision on whether to get one because it is likely that these women do not have the money to pay for an abortion.
Contrary to Thomas’s opinion, the decision to have a baby is inescapably a medical procedure with risks. The United States is a dangerous place to have a baby, as “childbirth is 14 times more likely than abortion to result in the woman’s death.” See Becerra, slip op. at 39 (Breyer, J., dissenting). Each year, more than 50,000 women are severely injured in childbirth, and about 700 mothers die. See Alison Young, Hospitals Know How to Protect Mothers. They Just Aren’t Doing It., USA Today (July 27, 2018, 4:54 PM). The United States is the most dangerous place in the developed world to have a baby. Id. In particular, the health risks for African-American women having babies are staggering. The United States’ rate of maternal mortality is worse now than 25 years ago. It is worse for women of color, as “[b]lack women are three to four times as likely to die from pregnancy-related causes as their white counterparts.” Linda Villarosa, Why American’s Black Mothers and Babies Are in a Life-or-Death Crisis, NY Times Mag. (Apr. 11, 2018). Given the dangers of childbirth, it seems there is a strong government interest to require that clinics tell patients that they have medical alternatives to this risky choice.
Justice Breyer’s dissent points out the most troubling issue with the decision: “What is sauce for the goose is normally sauce for the gander.” See National Institute of Family and Life Advocates v. Becerra, No. 16-1140, 585 U.S. _, slip op. at 38 (June 26, 2018) (Breyer, J., dissenting) (internal citations omitted). Many states require that women seeking an abortion receive extensive information about the health risks of abortion, the probable gestational age of the fetus (often with a compelled look at the ultrasound for the mother), a description of the fetus, and the availability of adoption. See, e.g., Tex. Health & Safety Code Ann. § 171.012 (West 2017); Miss. Code Ann. § 41-41-33 (2018). These notifications have been upheld repeatedly by the Court, as part of a state’s interests in protecting the unborn child and maternal health. More specifically, as mentioned above, Planned Parenthood v. Casey squarely addressed informed consent for abortion. The Casey Court stated that although “the physician’s First Amendment rights not to speak [were] implicated” by the Pennsylvania law, it was “only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Casey, 505 U.S. at 884 (internal citations omitted).
Thus, the Court in NIFLA is applying the law unfairly. I am not asking the Court to “adjudicate who is right and who is wrong in this moral debate.” Becerra, slip op. at 43 (Breyer, J., dissenting). What I want the Court to do, however, is to apply the law evenly. If Pennsylvania can require that a clinic disclose the availability of adoption to a patient, California should be able to require that a clinic disclose the availability of free abortion.
To be fair, the Court has been inconsistent for a long time, but now a different set of Justices are writing the dissents. For example, in Lawrence v. Texas, the Court decided that a statute making sodomy a crime for homosexuals was unconstitutional – not as an equal protection violation (which would have been the narrowest way to strike down the awful law), but as a due process violation. See generally Lawrence v. Texas, 539 U.S. 558 (2003). Justice Kennedy’s majority opinion stated that moral objections are an insufficient government interest to justify violating a person’s right to private, consensual sexual activity in their own home. Id. at 582. Justice Scalia’s scathing dissent pointed out the long list of laws that are based on morality – polygamy, bestiality, incest. Id. at 590. Justice Scalia is absolutely right, although I think the Texas statute was stupid and mean. The Court’s majority chooses what to value, and we are likely to be entering a time where the Court’s choices conflict with mine.
For years I have been warning my students to think critically about how the Court arrives at its decisions – not just the outcomes of the cases, because once the Court’s makeup changes we may regret the Court’s willingness to imply a new right (to privacy), to ignore stare decisis (Lawrence v. Texas overturning Bowers v. Hardwick), and act as a legislature (Roe v. Wade’s ill-fated trimester framework). Justice Kennedy’s retirement, and replacement by a more conservative Justice, likely signals the beginning of our regret.