U.S. Supreme Court

Swing voter Kennedy appears troubled by law requiring abortion information at anti-abortion centers

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Justice Anthony M. Kennedy.

In oral arguments on Monday, Justice Anthony M. Kennedy expressed reservations about a California law requiring some anti-abortion centers to post information on free and low-cost abortions.

Kennedy is likely to provide the swing vote in the case, report the National Law Journal, the Los Angeles Times, the Wall Street Journal, the New York Times and the Washington Post.

The law at issue appears aimed at crisis pregnancy centers that discourage abortions, the ABA Journal reported this month.

The statute requires unlicensed pregnancy centers that provide services such as pregnancy testing and ultrasounds to post notices disclosing they have no medical professionals on staff. Clinics that employ such professionals must disclose that California offers free or low-cost contraception, prenatal care and abortion.

Kennedy appeared to express his misgivings when he poised a question to a state lawyer defending the law. “Do you agree,” he asked, “that mandating speech that the speaker would not otherwise give—indeed, does not agree with— alters the content of the message?”

At another point, Kennedy said one section of the law “is an undue burden” that “should suffice to invalidate the statute.”

The Wall Street Journal points out that the undue burden standard is usually used when assessing whether an abortion law is so burdensome that it violates a woman’s constitutional right to the procedure. It is not typically used to determine whether a law infringes a First Amendment right to deliver an anti-abortion message.

Both the National Law Journal and the Los Angeles Times said the arguments indicated the California law, known as the Reproductive FACT Act, could be struck down.

“By the hour’s end,” the Los Angeles Times reported, “it appeared the justices would vote to strike down all or at least most of the law’s mandatory disclosure provisions.”

Other coverage pointed out that some justices had complained about a thin record in the case, indicating the court could decide to remand the case for a trial.

Several liberal justices said that, if the California law is unconstitutional, so too are laws requiring abortion clinics to inform patients about agencies that help with adoption and prenatal care. “In the law, as you well know, what is sauce for the goose is sauce for the gander,” said Justice Stephen G. Breyer.

The case is National Institute of Family and Life Advocates v. Becerra.

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