So what's up with NIFLA v. Becerra?

So I’ve been reading a bit about this case, and the more I read, the more it strikes me as fundamentally absurd.

We’ve already broadly established in PP v. Casey in 1991 that there’s absolutely nothing wrong with the states requiring “compelled speech” from health care providers. In this case, the California FACT act, which was struck down, required:

  • Licensed medical facilities that exist to provide family planning to state that California has public programs that do what they do (and probably more) for free
  • Unlicensed medical facilities that exist to provide family planning state that they are, in fact, not licensed

This law didn’t come out of nowhere. It was born out of the fact that so-called “crisis pregnancy centers” (places whose main service is not “women’s health” but “make people feel guilty about not being the right kind of Christian and dissuade them from abortion, often by lying to them” ) have been masquerading as women’s health care facilities. Now, apparently California can’t stop them from doing this outright, but surely there’s nothing wrong with demanding truth in advertising, right?

Well, apparently there is - the court ruled in a 5-4 decision that this “compelled speech” infringed on the crisis pregnancy center’s rights.

So with that in mind, a few questions.

  • Why is it okay to force physicians to do everything from mention adoption agencies to show women ultrasounds before they can get an abortion if it is not okay to force an unlicensed clinic to admit that it is unlicensed?
  • Why are we pretending that the distinction brought up in the majority opinion constitutes an actual difference?
  • Is it not an unreasonable infringement on my free speech to demand that the homeopathic remedies I sell not claim that they cure HIV, cancer, and diabetes?
  • Why should I not be allowed to claim my store is offering products for sale at prices that it is not offering? Is it not a brutal rejection of my right to free speech to say I am not allowed to claim that I’m selling Playstation 4s for $100 (even though I’m not)?
  • Can we please do away with the fantasy that the supreme court is somehow “impartial”?

I have no idea of the legal status of the decision; certainly it gives a result that is unjust, even if technically correct.

I have a relative who went to one of those “pregnant? need help?” places years ago because she was pregnant and needed help. This is the same sort of operation?

ETA they were not helpful.

To quote the reviews of one such place:

“This is a Christian-based organization that will push their agenda on you without your consent. You don’t get a chance to give your consent because they don’t advertise themselves as what they actually are: a manipulative group of people aiming to talk women out of abortions through lies, pushing their beliefs onto you, and giving misleading information. Even if you are not considering abortion and make that clear to them, as I did, they will find something to shame and judge you for if you are honest about yourself when you answer their questions. Susan the “counselor” told me exactly what god thought about my choices when I told her I was not married but that my boyfriend and I were trying to get pregnant (“fornicating” is what she incorrectly labeled it.) I believe in god and I told her as much when she asked me (not that it’s any of her business), but she still wasted no time in belittling me about my beliefs, all the while fake-smiling and insisting that she wasn’t judging me. While the other staff members are nice and welcoming, no one in this place is a trained medical professional, probably because people who practice legitimate scientific medicine aren’t in the business of lying to people about medical procedures to further their own agenda. They advertise that they offer blood tests, but it’s just a urine test, the same kind you can buy in any store. Save yourself the unnecessary grief and shame and just go buy a test, if you can. I don’t understand how places like this are even allowed to operate.”

As a general rule of thumb, crisis pregnancy centers are, medically speaking, less than useless - they regularly offer misleading or outright false medical advice while lacking the expertise needed to actually help with real problems.

No, that’s not exactly what Casey said.

The holding is informed by the specific speech being compelled in Casey – namely, that the speech is regulated as the practice of medicine and does not create an undue burden to seeking an abortion.

In contrast, the law at issue in NIFLA v Becerra is not the practice of medicine:

It is different to regulate what a doctor has to do in a surgical procedure than to regulate what a clinic has to say on its website and post in its offices. Thus there are different standards because a doctor does not have a constitutional right to practice medicine but they do have right to free speech.
The unlicensed clinics that dispense anti-abortion advice are the only ones that are forced to say whether or not they are licensed. This targeting showed that California was not merely provided information but trying to burden speakers it disagreed with.
Your hypotheticals are only applicable if the clinics were claiming to be licensed without being licensed or if the licensed clinics were claiming to perform abortions.

Given the nature of what is demanded by the laws contested in this case, this is a distinction without a difference.

Being mandated to tell people about adoption has nothing to do with “the practice of medicine”. You can arbitrarily attach it to the practice of medicine, but in that case you could just as easily pass a law that says that whenever a doctor issues a prescription, they are legally mandated to play a commercial sponsored by the DNC. It has exactly fuck-all to do with the medical act being provided (although I’m sure someone could come up with some bizarre justification for why that’s technically related to the practice of medicine).

This is exactly what Robinson talks about in that article I linked above.

“Compulsion is a basic infringement on the liberty of speech! Doctors must have the right to use their judgment rather than having the state tell them what to say!”

“But what about this very prominent instance in which the state literally hands doctors a pamphlet about abortion and tells them what to say?”

“Oh, well, that’s just informed consent. Informed consent is part of tort law. It doesn’t regulate ‘speech as speech.’” A distinction? Yes. A distinction made for sound legal reasons rather than political ones? No.

Okay. Why?

Like, I would understand this claim if what we were talking about was something like mandating that a doctor wash his hands before surgery, or even that the doctor honestly discuss the risks and benefits of a risky procedure. But… That’s not what this is about. It’s a law mandating that, before a doctor perform a procedure, he talk to his patients about a largely irrelevant* alternative to the procedure. Perhaps a comparable law would be demanding that doctors who perform masectomies spend the entire first meeting telling their patients variants on, “Y’know, you could always just… not get a masectomy,” - regardless of why that patient wants or needs a masectomy.

Or see my example above. If we’re allowed to pass laws mandating that doctors must say medically unnecessary (or, indeed, medically false things, as is the case in many states), then the idea that doctors have freedom of speech kind of goes out the window. This is a distinction without a difference.

*Yes, if you are coming in for an abortion, adoption is largely irrelevant. Everyone knows adoption is an option. Most (~88%) abortions happen in the first trimester in women who have no interest in going through pregnancy. Telling them, “Did you know, you can carry that baby for 6-8 more months (note: doing so will permanently change your body and your metabolism, cost tens of thousands of dollars, and multiply your risk of dying by 14), then give it away after birth instead of having the procedure you came in here to have?” is a complete waste of everyone’s time - which is the whole point of laws like this.

The people who run crisis pregnancy centers do not have a constitutional right to run crisis pregnancy centers but they do have a right to free speech.

Not sure why it doesn’t work just as easily that way, to be honest. Maybe it would have just been cleaner and easier to ban those centers, instead of just forcing them to not lie.

Or, alternatively, that California had a problem that was more specific than “unlicensed medical clinics giving out bad advice” and didn’t want to overlegislate. It is a fair question to ask why the requirement didn’t apply to all unlicensed medical clinics, but the same argument applies to any doctor who supports abortion rights (or even just doesn’t want to lie to their patients). And again, before you respond, keep in mind the key question here - why is this distinction one that makes a difference?

Call it unreasonable, but I’d assume that if I go into a medical clinic offering medical services, that clinic is a medical clinic that is licensed to perform medical services.

So rather than starting another new thread about the politicization of the jury, I figured I’d just post this here.

Here is, in my humble opinion, the money quote: