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94 N.Y.U. L. Rev. 61 (2019)
Constitutional Gerrymandering against Abortion Rights: NIFLA v. Becerra

handle is hein.journals/nylr94 and id is 65 raw text is: CONSTITUTIONAL GERRYMANDERING AGAINST ABORTION RIGHTS: NIFLA V. BECERRA ERWIN CHEMERINSKYt & MICHELE GOODWINf In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful fac- tual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare. In concluding that the California law is unconstitutional, the Court's decision has enormously important implications. It puts all laws requiring disclosures in jeop- ardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitution- ally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the inter- ests at stake in its decision, and applied a more demanding standard based on con- tent of speech. But NIFLA v. Becerra is only secondarily about speech. It is impossible to under- stand the Court's decision in NIFLA v. Becerra except as a reflection of the con- servative Justices' hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion. INTRODUCTION ..................................................... 62 I. STATUTE, CONTEXT, AND DECISION IN NIFLA v. BECERRA ............................................... 69 A. The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act ................................... 69 1. Licensed Facilities ............................... 72 2. Unlicensed Facilities ............................. 73 B. The Statute's Purpose: Addressing Sexual Health, Unintended Pregnancies, Sexually Transmitted t Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. f Michele Goodwin, Chancellor's Professor of Law & Director, Center for Biotechnology & Global Health Policy, University of California, Irvine School of Law. We wish to thank Jonathan Huang for his excellent research assistance. © 2019 by Erwin Chemerinsky & Michele Goodwin. 61 Imaged with Permission of N.Y.U. Law Review

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