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Facing the FACT Act: Abortion and Free

Speech (Part II)



Updated July 26, 2019

Update: For a discussion of the Supreme Court's June 26, 2018 decision in NIFLA v. Becerra holding
that the FACTAct likely violated the First Amendment, see CRS Report R45316, Supreme Court October
Term  2017: A Review of Selected Major Rulings, coordinated by Andrew Nolan. On October 26, 2018,
the parties in NIFLA stipulated to an injunction and dismissal of the case, and the district court
permanently enjoined the state and local defendants from enforcing the FACTAct. No. 3:15-cv-02277
(S.D. Cal. Oct. 26, 2018), ECFNo. 76.
The original post from January 10, 2018 is below.
As explained in Part I of this Sidebar, the parties in National Institute of Family and Life Advocates
(NIFLA) v. Becerra dispute whether California's Reproductive FACT Act is a viewpoint- or content-based
restriction on speech subject to strict scrutiny (and thus presumptively invalid) or a professional or
commercial regulation subject to less exacting scrutiny. The path the Court chooses could have
implications for lawmakers both in the context of family planning or pregnancy-related services and,
more broadly, in the regulation of professional and commercial activities.
Informed  Consent v. Other Informational Disclosures. As noted in Part I, in Planned Parenthood v
Casey, the Supreme Court rejected a First Amendment challenge to Pennsylvania's requirement that,
before performing an abortion, a doctor inform the patient of, among other things, state publications
describing alternatives to abortion. The parties that oppose the FACT Act (i.e., the NIFLA challengers)
argue that Pennsylvania's law is fundamentally different than the FACT Act because Pennsylvania's
requirement served a particularized interest in ensuring that 'relevant' information is provided to the
patient so that a necessary step-informed consent for a surgical procedure-is actually obtained. But
California argues that its notices are likewise relevant to a pregnant woman's decisionmaking and not
so different in kind from the notice requirement at issue in Casey.
Whether the Court can distinguish Casey from the issues raised in NIFLA could have broad consequences
for abortion regulations. Some legal commentators have posited that if the Court rules in favor of the
NIFLA  challengers, the decision could render notice and disclosure requirements championed by abortion
opponents susceptible to invalidation as well. Some of those laws, however, may be distinguishable based
on the type of information they convey. For example, it is unclear whether the Court would view a law
that requires the disclosure of medical risks before undergoing a procedure on the same plane as a law
                                                                  Congressional Research Service
                                                                    https://crsreports.congress.gov
                                                                                       LSB10056

 CRS Legal Sidebar
 Prepared for Members and
 Committees of Congress

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