(Bloomberg) -- U.S. Supreme Court justices cast doubt on a California law that requires pregnancy-counseling clinics that oppose abortion to tell patients they might be eligible to get the procedure free or at a discount.
Hearing arguments Tuesday in Washington, justices from across the court’s ideological spectrum suggested the law might violate the speech rights of clinics that oppose abortion and promote childbirth as an alternative. Justice Elena Kagan said the law might have been "gerrymandered" so that it targeted those facilities.
"If it has been gerrymandered, that’s a serious issue," said Kagan.
The case has become a proxy for the broader fight over abortion. Supporters say the California law helps keep women’s health centers that oppose abortion from misleading vulnerable patients about their options. A federal appeals court upheld the law.
But a majority of the justices suggested the measure went too far. Even Justice Sonia Sotomayor, one of the court’s most liberal members, called one potential application of the law "burdensome and wrong."
Under the measure, which took effect in 2016, licensed pregnancy centers must tell patients they can call a county health department to learn about state-funded prenatal, family planning and abortion services.
The law imposes separate requirements on centers that aren’t licensed as medical facilities but still offer pregnancy testing or ultrasound imaging. Those centers must post prominent notices on-site and in any advertisements -- potentially in 13 languages -- to say they don’t have a medical professional on staff.
The challengers include the National Institute of Family and Life Advocates, a nonprofit organization that says it represents more than 110 pro-life pregnancy centers in California and more than 1,400 around the country. Two San Diego-area clinics are also pressing the case, saying they are being forced to advertise a procedure they abhor.
The justices pressed the clinics’ lawyer, Michael Farris, to square his position with a 1992 Supreme Court decision that upheld "informed consent" requirements imposed on doctors who perform abortions.
Justice Stephen Breyer suggested that abortion-rights states should have the same ability to require disclosure by clinics that oppose the procedure. "What is sauce for the goose is sauce for the gander," he said.
But other justices signaled they were more skeptical of California’s law.
Justice Anthony Kennedy, often the court’s swing vote, asked whether the rules governing unlicensed clinics would apply to an advertisement that merely said "choose life." If so, "it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute," Kennedy said.
California’s lawyer, Joshua Klein, eventually said the disclosure rules would apply.
That prompted Sotomayor to say the outcome "seems to me more burdensome and wrong because it’s not tied to an advertisement that is promoting medical services."
At other points, however, Sotomayor suggested California had a legitimate interest in making sure patients weren’t confused. She said she visited the website of an unlicensed clinic and saw a picture of a woman in a nurse’s uniform in front of an ultrasound machine.
"If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?" she asked.
California’s best hope might be to have the case sent back to a lower court. Breyer expressed frustration that he had so little information on the practical effect of the California law.
"Don’t we need a trial on this?" he asked.
The case is National Institute of Family and Life Advocates v. Becerra, 16-1140.
©2018 Bloomberg L.P.