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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