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Cases/ U.S. Supreme Court/ 2018

NIFLA v. Becerra

585 U.S. 755 (2018) · Docket No. 16-1140

Full caption: National Institute of Family and Life Advocates v. Becerra, Attorney General of California

Good law

Court
U.S. Supreme Court
Argued
March 20, 2018
Decided
June 26, 2018
Majority author
Thomas, J.
Joined by
Roberts, C.J.; Kennedy, Alito, Gorsuch, JJ.
Vote
5-4
Case No. 20 of 28 All cases, indexed

Question presented

Whether California's Reproductive FACT Act — which required licensed crisis pregnancy centers to post notices about state-subsidized abortion services and required unlicensed centers to disclose their unlicensed status — violates the First Amendment.

Holding

The FACT Act likely violates the First Amendment. Both the licensed-clinic notice requirement (compelling speech about abortion services) and the unlicensed-clinic disclosure requirement fail applicable First Amendment scrutiny.

Key reasoning

Justice Thomas held that content-based regulation of speech triggers strict scrutiny unless it falls within recognized exceptions (Zauderer 'purely factual and uncontroversial' commercial disclosures; professional conduct incidentally involving speech). The abortion notice was not 'uncontroversial' commercial information.

§ 1 Reasoning

Justice Thomas held that content-based regulation of speech triggers strict scrutiny unless it falls within recognized exceptions (Zauderer 'purely factual and uncontroversial' commercial disclosures; professional conduct incidentally involving speech). The abortion notice was not 'uncontroversial' commercial information. The unlicensed disclosure was 'unjustified or unduly burdensome.'

§ 2 Opinions

Majority

Thomas, J.

Roberts, C.J.; Kennedy, Alito, Gorsuch, JJ.

The FACT Act likely violates the First Amendment. Both the licensed-clinic notice requirement (compelling speech about abortion services) and the unlicensed-clinic disclosure requirement fail applicable First Amendment scrutiny.

Concurrence

Kennedy, J.

Roberts, C.J.; Alito, Gorsuch, JJ.

Emphasized that California's law appeared to engage in viewpoint discrimination targeting pro-life speech.

Dissent

Breyer, J.

Ginsburg, Sotomayor, Kagan, JJ.

Argued that if states can require abortion providers to give anti-abortion information (Casey), they should be able to require pro-life pregnancy centers to give information about abortion. Warned about the majority's threat to routine medical disclosure requirements.

“The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices alter the content of their speech.” Thomas, J. (majority) · slip op. at 7

§ 3 Key quotes

“The Zauderer standard does not apply here. Most obviously, the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available.'”
Thomas, J. (majority)slip op. at 8
“There is a sense when you read this statute...that it's like a gerrymander.”
Kagan, J. (at oral argument, quoted in dissent)oral argument transcript

§ 4 Practical effect

Crisis pregnancy centers nationwide were protected from state-mandated pro-abortion disclosure requirements. The ruling significantly expanded free speech protection for pro-life speech.

§ 5 Perspectives

The summaries below are descriptive, not evaluative — an attempt to represent fairly how each camp typically frames this case.

Abolitionist framing

Abolitionists strongly support NIFLA as protecting pro-life speech and pregnancy centers. The Alliance Defending Freedom (which litigated NIFLA) is closely associated with many abolitionist legal projects.

Mainstream pro-life framing

Widely celebrated by mainstream pro-life groups as a major First Amendment victory. NIFLA has become a foundational free speech precedent for the movement.

Pro-choice framing

Advocates argued NIFLA created a one-way street: abortion providers must give anti-abortion information under Casey, but pro-life centers cannot be required to disclose the availability of abortion.

§ 6 Significance

6/ 10

A significant First Amendment precedent with reach beyond abortion (professional-speech doctrine); remains a leading free-speech authority.

Legal precedential weight7
Practical impact on access4
Movement relevance (abolitionist)7
Enduring relevance, 20268

§ 7 Sources

Cites earlier cases

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) Planned Parenthood v. Casey (1992)

Cited by later cases

FDA v. Alliance for Hippocratic Medicine (2024)
Editorial note The professional-speech doctrine discussion has significant implications for informed-consent requirements imposed on abortion providers.