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   Congressional                                                           _______
   ~*~Research Service
                nforming the Iegiative debate since 19!4





Facing the FACT Act: Abortion and Free

Speech (Part I)



Victoria L. Killion
Legislative Attorney

January 10, 2018
On November 13, 2017, the Supreme Court granted a petition to review National Institute of Family and
Life Advocates (NFLA) v. Becerra, a case that implicates several distinct and complex First Amendment
doctrines. Specifically, the Court will consider whether a California law providing information that
certain pregnancy centers must disseminate to clients violates the Free Speech Clause. The Ninth Circuit
previously upheld the California law, deepening a circuit split that raises questions beyond the highly
charged context of family planning and pregnancy-related services. Part I of this two-part Sidebar
provides an overview of the challenged law, followed by an analysis of how the Supreme Court might
categorize the speech at issue. Part II discusses the potential implications of any Supreme Court decision
in NIFLA for First Amendment jurisprudence and legislatures seeking to regulate in this area.
Background. NIFLA involves a challenge by an anti-abortion, nonprofit organization and two of its
member pregnancy centers (the NIFLA challengers) to California's Reproductive Freedom,
Accountability, Comprehensive Care, and Transparency (FACT) Act. The FACT Act imposes two
requirements on certain providers of family planning or pregnancy-related services. First, covered state-
licensed facilities-generally, outpatient clinics-must notify clients on site that California has public
programs that provide immediate free or low-cost access to comprehensive family planning services
(including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women,
along with the telephone number of the county social services office. Second, unlicensed covered
facilities-generally, those without a state license or a licensed medical provider supervising their
operations-must provide a notice on site and in any advertising materials that the facility is not licensed
as a medical facility and has no licensed medical provider rendering or supervising its services. The Act
exempts federal clinics and certain providers that are enrolled in the State's Family Planning, Access,
Care, and Treatment (Family PACT) program. The Act also specifies how covered facilities must display
or distribute the notices (e.g., size and language requirements). Finally, the law imposes monetary
penalties on any facility that fails to comply within thirty days of receiving a notice of violation.

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