National Institute of Family and Life Advocates v. Becerra , 201 L. Ed. 2d 835 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, DBA NIFLA, ET AL. v. BECERRA,
ATTORNEY GENERAL OF CALIFORNIA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 16–1140. Argued March 20, 2018—Decided June 26, 2018
The California Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act (FACT Act) was enacted to regulate cri-
sis pregnancy centers—pro-life centers that offer pregnancy-related
services. The FACT Act requires clinics that primarily serve preg-
nant women to provide certain notices. Clinics that are licensed
must notify women that California provides free or low-cost services,
including abortions, and give them a phone number to call. Its stated
purpose is to make sure that state residents know their rights and
what health care services are available to them. Unlicensed clinics
must notify women that California has not licensed the clinics to pro-
vide medical services. Its stated purpose is to ensure that pregnant
women know when they are receiving health care from licensed pro-
fessionals. Petitioners—two crisis pregnancy centers, one licensed
and one unlicensed, and an organization of crisis pregnancy centers—
filed suit. They alleged that both the licensed and the unlicensed no-
tices abridge the freedom of speech protected by the First Amend-
ment. The District Court denied their motion for a preliminary in-
junction, and the Ninth Circuit affirmed. Holding that petitioners
could not show a likelihood of success on the merits, the court con-
cluded that the licensed notice survived a lower level of scrutiny ap-
plicable to regulations of “professional speech,” and that the unli-
censed notice satisfied any level of scrutiny.
Held:
1. The licensed notice likely violates the First Amendment. Pp. 6–
17.
(a) Content-based laws “target speech based on its communica-
2 NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES v. BECERRA
Syllabus
tive content” and “are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tai-
lored to serve compelling state interests.” Reed v. Town of Gilbert,
576 U. S. ___, ___. The licensed notice is a content-based regulation.
By compelling petitioners to speak a particular message, it “alters the
content of [their] speech.” Riley v. National Federation of Blind of
N. C., Inc., 487 U. S. 781, 795. For example, one of the state-
sponsored services that the licensed notice requires petitioners to ad-
vertise is abortion—the very practice that petitioners are devoted to
opposing. Pp. 6–7.
(b) Although the licensed notice is content-based, the Ninth Cir-
cuit did not apply strict scrutiny because it concluded that the notice
regulates “professional speech.” But this Court has never recognized
“professional speech” as a separate category of speech subject to dif-
ferent rules. Speech is not unprotected merely because it is uttered
by professionals. The Court has afforded less protection for profes-
sional speech in two circumstances—where a law requires profes-
sionals to disclose factual, noncontroversial information in their
“commercial speech,” see, e.g., Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U. S. 626, 651, and where
States regulate professional conduct that incidentally involves
speech, see, e.g., Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456.
Neither line of precedents is implicated here. Pp. 7–14.
(1) Unlike the rule in Zauderer, the licensed notice is not limited to
“purely factual and uncontroversial information about the terms un-
der which . . . services will be available,” 471 U. S., at 651. Califor-
nia’s notice requires covered clinics to disclose information about
state-sponsored services—including abortion, hardly an “uncontro-
versial” topic. Accordingly, Zauderer has no application here. P. 9.
(2) Nor is the licensed notice a regulation of professional conduct
that incidentally burdens speech. The Court’s precedents have long
drawn a line between speech and conduct. In Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, for example, the joint opin-
ion rejected a free-speech challenge to an informed-consent law re-
quiring physicians to “give a woman certain information as part of
obtaining her consent to an abortion,” id., at 884. But the licensed
notice is neither an informed-consent requirement nor any other reg-
ulation of professional conduct. It applies to all interactions between
a covered facility and its clients, regardless of whether a medical pro-
cedure is ever sought, offered, or performed. And many other facili-
ties providing the exact same services, such as general practice clin-
ics, are not subject to the requirement. Pp. 10–11.
(3) Outside of these two contexts, the Court’s precedents have long
protected the First Amendment rights of professionals. The Court
Cite as: 585 U. S. ____ (2018) 3
Syllabus
has applied strict scrutiny to content-based laws regulating the non-
commercial speech of lawyers, see Reed, supra, at ___, professional
fundraisers, see Riley, supra, at 798, and organizations providing
specialized advice on international law, see Holder v. Humanitarian
Law Project, 561 U. S. 1, 27–28. And it has stressed the danger of
content-based regulations “in the fields of medicine and public
health, where information can save lives.” Sorrell v. IMS Health Inc.,
564 U. S. 552, 566. Such dangers are also present in the context of
professional speech, where content-based regulation poses the same
“risk that the Government seeks not to advance a legitimate regula-
tory goal, but to suppress unpopular ideas or information,” Turner
Broadcasting Systems, Inc. v. FCC, 512 U. S. 622, 641. When the
government polices the content of professional speech, it can fail to
“ ‘preserve an uninhibited marketplace of ideas in which truth will
ultimately prevail.’ ” McCullen v. Coakley, 573 U. S. ___, ___–___.
Professional speech is also a difficult category to define with preci-
sion. See Brown v. Entertainment Merchants Assn., 564 U. S. 786,
791. If States could choose the protection that speech receives simply
by requiring a license, they would have a powerful tool to impose “in-
vidious discrimination of disfavored subjects.” Cincinnati v. Discov-
ery Network, Inc., 507 U. S. 410, 423, n. 19. Pp. 11–14.
(c) Although neither California nor the Ninth Circuit have ad-
vanced a persuasive reason to apply different rules to professional
speech, the Court need not foreclose the possibility that some such
reason exists because the licensed notice cannot survive even inter-
mediate scrutiny. Assuming that California’s interest in providing
low-income women with information about state-sponsored service is
substantial, the licensed notice is not sufficiently drawn to promote
it. The notice is “wildly underinclusive,” Entertainment Merchants
Assn., supra, at 802, because it applies only to clinics that have a
“primary purpose” of “providing family planning or pregnancy-related
services” while excluding several other types of clinics that also serve
low-income women and could educate them about the State’s ser-
vices. California could also inform the women about its services
“without burdening a speaker with unwanted speech,” Riley, supra,
at 800, most obviously through a public-information campaign. Peti-
tioners are thus likely to succeed on the merits of their challenge.
Pp. 14–17.
2. The unlicensed notice unduly burdens protected speech. It is
unnecessary to decide whether Zauderer’s standard applies here, for
even under Zauderer, a disclosure requirement cannot be “unjustified
or unduly burdensome.” 471 U. S., at 651. Disclosures must remedy
a harm that is “potentially real not purely hypothetical,” Ibanez v.
Florida Dept. of Business and Professional Regulation, Bd. of Ac-
4 NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES v. BECERRA
Syllabus
countancy, 512 U. S. 136, 146, and can extend “no broader than rea-
sonably necessary,” In re R. M. J., 455 U. S. 191, 203. California has
not demonstrated any justification for the unlicensed notice that is
more than “purely hypothetical.” The only justification put forward
by the state legislature was ensuring that pregnant women know
when they are receiving medical care from licensed professionals, but
California denied that the justification for the law was that women
did not know what kind of facility they are entering when they go to a
crisis pregnancy center. Even if the State had presented a nonhypo-
thetical justification, the FACT Act unduly burdens protected speech.
It imposes a government-scripted, speaker-based disclosure require-
ment that is wholly disconnected from the State’s informational in-
terest. It requires covered facilities to post California’s precise notice,
no matter what the facilities say on site or in their advertisements.
And it covers a curiously narrow subset of speakers: those that pri-
marily provide pregnancy-related services, but not those that pro-
vide, e.g., nonprescription birth control. Such speaker-based laws
run the risk that “the State has left unburdened those speakers
whose messages are in accord with its own views.” Sorrell, supra, at
580. For these reasons, the unlicensed notice does not satisfy Zau-
derer, assuming that standard applies. Pp. 17–20.
839 F. 3d 823, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., filed
a concurring opinion, in which ROBERTS, C. J., and ALITO and GORSUCH,
JJ., joined. BREYER, J., filed dissenting opinion, in which GINSBURG,
SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1140
_________________
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v.
XAVIER BECERRA, ATTORNEY GENERAL OF
CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE THOMAS delivered the opinion of the Court.
The California Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act (FACT Act)
requires clinics that primarily serve pregnant women to
provide certain notices. Cal. Health & Safety Code Ann.
§123470 et seq. (West 2018). Licensed clinics must notify
women that California provides free or low-cost services,
including abortions, and give them a phone number to call.
Unlicensed clinics must notify women that California has
not licensed the clinics to provide medical services. The
question in this case is whether these notice requirements
violate the First Amendment.
I
A
The California State Legislature enacted the FACT
Act to regulate crisis pregnancy centers. Crisis pregnancy
centers—according to a report commissioned by the Cali-
fornia State Assembly, App. 86—are “pro-life (largely
Christian belief-based) organizations that offer a limited
2 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
range of free pregnancy options, counseling, and other
services to individuals that visit a center.” Watters et al.,
Pregnancy Resource Centers: Ensuring Access and Accu-
racy of Information 4 (2011). “[U]nfortunately,” the au-
thor of the FACT Act stated, “there are nearly 200 licensed
and unlicensed” crisis pregnancy centers in California.
App. 84. These centers “aim to discourage and prevent
women from seeking abortions.” Id., at 85. The author of
the FACT Act observed that crisis pregnancy centers “are
commonly affiliated with, or run by organizations whose
stated goal” is to oppose abortion—including “the National
Institute of Family and Life Advocates,” one of the peti-
tioners here. Ibid. To address this perceived problem, the
FACT Act imposes two notice requirements on facilities
that provide pregnancy-related services—one for licensed
facilities and one for unlicensed facilities.
1
The first notice requirement applies to “licensed covered
facilit[ies].” Cal. Health & Safety Code Ann. §123471(a).
To fall under the definition of “licensed covered facility,” a
clinic must be a licensed primary care or specialty clinic or
qualify as an intermittent clinic under California law.
Ibid. (citing §§1204, 1206(h)). A licensed covered facility
also must have the “primary purpose” of “providing fam-
ily planning or pregnancy-related services.” §123471(a).
And it must satisfy at least two of the following six
requirements:
“(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
“(2) The facility provides, or offers counseling about,
contraception or contraceptive methods.
“(3) The facility offers pregnancy testing or pregnancy
diagnosis.
“(4) The facility advertises or solicits patrons with of-
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
fers to provide prenatal sonography, pregnancy tests,
or pregnancy options counseling.
“(5) The facility offers abortion services.
“(6) The facility has staff or volunteers who collect
health information from clients.” Ibid.
The FACT Act exempts several categories of clinics that
would otherwise qualify as licensed covered facilities.
Clinics operated by the United States or a federal agency
are excluded, as are clinics that are “enrolled as a Medi-
Cal provider” and participate in “the Family Planning,
Access, Care, and Treatment Program” (Family PACT
program). §123471(c). To participate in the Family PACT
program, a clinic must provide “the full scope of family
planning . . . services specified for the program,” Cal.
Welf. & Inst. Code Ann. §24005(c) (West 2018), including
sterilization and emergency contraceptive pills,
§§24007(a)(1), (2).
If a clinic is a licensed covered facility, the FACT Act
requires it to disseminate a government-drafted notice on
site. Cal. Health & Safety Code Ann. §123472(a)(1). The
notice states that “California has public programs that
provide immediate free or low-cost access to comprehen-
sive family planning services (including all FDA-approved
methods of contraception), prenatal care, and abortion for
eligible women. To determine whether you qualify, con-
tact the county social services office at [insert the tele-
phone number].” Ibid. This notice must be posted in the
waiting room, printed and distributed to all clients, or
provided digitally at check-in. §123472(a)(2). The notice
must be in English and any additional languages identi-
fied by state law. §123472(a). In some counties, that
means the notice must be spelled out in 13 different lan-
guages. See State of Cal., Dept. of Health Care Services,
Frequency of Threshold Language Speakers in the Medi-
4 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
Cal Population by County for Jan. 2015, pp. 4–5 (Sept.
2016) (identifying the required languages for Los Angeles
County as English, Spanish, Armenian, Mandarin, Can-
tonese, Korean, Vietnamese, Farsi, Tagalog, Russian,
Cambodian, Other Chinese, and Arabic).
The stated purpose of the FACT Act, including its li-
censed notice requirement, is to “ensure that California
residents make their personal reproductive health care
decisions knowing their rights and the health care services
available to them.” 2015 Cal. Legis. Serv. Ch. 700, §2
(A. B. 775) (West) (Cal. Legis. Serv.). The Legislature
posited that “thousands of women remain unaware of the
public programs available to provide them with contracep-
tion, health education and counseling, family planning,
prenatal care, abortion, or delivery.” §1(b). Citing the
“time sensitive” nature of pregnancy-related decisions,
§1(c), the Legislature concluded that requiring licensed
facilities to inform patients themselves would be “[t]he
most effective” way to convey this information, §1(d).
2
The second notice requirement in the FACT Act applies
to “unlicensed covered facilit[ies].” §123471(b). To fall
under the definition of “unlicensed covered facility,” a
facility must not be licensed by the State, not have a li-
censed medical provider on staff or under contract, and
have the “primary purpose” of “providing pregnancy-
related services.” Ibid. An unlicensed covered facility
also must satisfy at least two of the following four
requirements:
“(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
“(2) The facility offers pregnancy testing or pregnancy
diagnosis.
“(3) The facility advertises or solicits patrons with of-
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
fers to provide prenatal sonography, pregnancy tests,
or pregnancy options counseling.
“(4) The facility has staff or volunteers who collect
health information from clients.” Ibid.
Clinics operated by the United States and licensed primary
care clinics enrolled in Medi-Cal and Family PACT are
excluded. §123471(c).
Unlicensed covered facilities must provide a government-
drafted notice stating that “[t]his facility is not li-
censed as a medical facility by the State of California and
has no licensed medical provider who provides or directly
supervises the provision of services.” Cal. Health & Safety
Code Ann. §123472(b)(1). This notice must be provided on
site and in all advertising materials. §§123472(b)(2), (3).
Onsite, the notice must be posted “conspicuously” at the
entrance of the facility and in at least one waiting area.
§123472(b)(2). It must be “at least 8.5 inches by 11 inches
and written in no less than 48-point type.” Ibid. In adver-
tisements, the notice must be in the same size or larger
font than the surrounding text, or otherwise set off in a
way that draws attention to it. §123472(b)(3). Like the
licensed notice, the unlicensed notice must be in English
and any additional languages specified by state law.
§123471(b). Its stated purpose is to ensure “that pregnant
women in California know when they are getting medical
care from licensed professionals.” Cal. Legis. Serv., §1(e).
B
After the Governor of California signed the FACT Act,
petitioners—a licensed pregnancy center, an unlicensed
pregnancy center, and an organization composed of crisis
pregnancy centers—filed this suit. Petitioners alleged
that the licensed and unlicensed notices abridge the free-
dom of speech protected by the First Amendment. The
District Court denied their motion for a preliminary
6 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
injunction.
The Court of Appeals for the Ninth Circuit affirmed.
National Institute of Family and Life Advocates v. Harris,
839 F. 3d 823, 845 (2016). After concluding that petition-
ers’ challenge to the FACT Act was ripe,1 id., at 833, the
Ninth Circuit held that petitioners could not show a like-
lihood of success on the merits. It concluded that the
licensed notice survives the “lower level of scrutiny” that
applies to regulations of “professional speech.” Id., at 833–
842. And it concluded that the unlicensed notice satisfies
any level of scrutiny. See id., at 843–844.
We granted certiorari to review the Ninth Circuit’s
decision. 583 U. S. ___ (2017). We reverse with respect to
both notice requirements.
II
We first address the licensed notice.2
A
The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits laws that abridge
the freedom of speech. When enforcing this prohibition,
our precedents distinguish between content-based and
content-neutral regulations of speech. Content-based
regulations “target speech based on its communicative
content.” Reed v. Town of Gilbert, 576 U. S. ___, ___
(2015) (slip op., at 6). As a general matter, such laws “are
presumptively unconstitutional and may be justified only
if the government proves that they are narrowly tailored
to serve compelling state interests.” Ibid. This stringent
standard reflects the fundamental principle that govern-
——————
1 Weagree with the Ninth Circuit’s ripeness determination.
2 Petitioners
raise serious concerns that both the licensed and unli-
censed notices discriminate based on viewpoint. Because the notices
are unconstitutional either way, as explained below, we need not reach
that issue.
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
ments have “ ‘no power to restrict expression because of its
message, its ideas, its subject matter, or its content.’ ”
Ibid. (quoting Police Dept. of Chicago v. Mosley, 408 U. S.
92, 95 (1972)).
The licensed notice is a content-based regulation of
speech. By compelling individuals to speak a particular
message, such notices “alte[r] the content of [their]
speech.” Riley v. National Federation of Blind of N. C.,
Inc., 487 U. S. 781, 795 (1988); accord, Turner Broadcast-
ing System, Inc. v. FCC, 512 U. S. 622, 642 (1994); Miami
Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256
(1974). Here, for example, licensed clinics must provide a
government-drafted script about the availability of state-
sponsored services, as well as contact information for how
to obtain them. One of those services is abortion—the
very practice that petitioners are devoted to opposing. By
requiring petitioners to inform women how they can ob-
tain state-subsidized abortions—at the same time peti-
tioners try to dissuade women from choosing that option—
the licensed notice plainly “alters the content” of petition-
ers’ speech. Riley, supra, at 795.
B
Although the licensed notice is content based, the Ninth
Circuit did not apply strict scrutiny because it concluded
that the notice regulates “professional speech.” 839 F. 3d,
at 839. Some Courts of Appeals have recognized “profes-
sional speech” as a separate category of speech that is
subject to different rules. See, e.g., King v. Governors of
New Jersey, 767 F. 3d 216, 232 (CA3 2014); Pickup v.
Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014); Moore-
King v. County of Chesterfield, 708 F. 3d 560, 568–570
(CA4 2014). These courts define “professionals” as indi-
viduals who provide personalized services to clients and
who are subject to “a generally applicable licensing and
regulatory regime.” Id., at 569; see also, King, supra, at
8 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
232; Pickup, supra, at 1230. “Professional speech” is then
defined as any speech by these individuals that is based on
“[their] expert knowledge and judgment,” King, supra, at
232, or that is “within the confines of [the] professional
relationship,” Pickup, supra, at 1228. So defined, these
courts except professional speech from the rule that content-
based regulations of speech are subject to strict scru-
tiny. See King, supra, at 232; Pickup, supra, at 1053–
1056; Moore-King, supra, at 569.
But this Court has not recognized “professional speech”
as a separate category of speech. Speech is not unpro-
tected merely because it is uttered by “professionals.” This
Court has “been reluctant to mark off new categories of
speech for diminished constitutional protection.” Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC,
518 U. S. 727, 804 (1996) (KENNEDY, J., concurring in
part, concurring in judgment in part, and dissenting in
part). And it has been especially reluctant to “exemp[t] a
category of speech from the normal prohibition on content-
based restrictions.” United States v. Alvarez, 567 U. S.
709, 722 (2012) (plurality opinion). This Court’s prece-
dents do not permit governments to impose content-based
restrictions on speech without “ ‘persuasive evidence . . . of
a long (if heretofore unrecognized) tradition’ ” to that
effect. Ibid. (quoting Brown v. Entertainment Merchants
Assn., 564 U. S. 786, 792 (2011)).
This Court’s precedents do not recognize such a tradi-
tion for a category called “professional speech.” This Court
has afforded less protection for professional speech in two
circumstances—neither of which turned on the fact that
professionals were speaking. First, our precedents have
applied more deferential review to some laws that require
professionals to disclose factual, noncontroversial infor-
mation in their “commercial speech.” See, e.g., Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz,
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik
v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978).
Second, under our precedents, States may regulate profes-
sional conduct, even though that conduct incidentally
involves speech. See, e.g., id., at 456; Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 884 (1992)
(opinion of O’Connor, KENNEDY, and Souter, JJ.). But
neither line of precedents is implicated here.
1
This Court’s precedents have applied a lower level of
scrutiny to laws that compel disclosures in certain con-
texts. In Zauderer, for example, this Court upheld a rule
requiring lawyers who advertised their services on a
contingency-fee basis to disclose that clients might be re-
quired to pay some fees and costs. 471 U. S., at 650–653.
Noting that the disclosure requirement governed only
“commercial advertising” and required the disclosure of
“purely factual and uncontroversial information about the
terms under which . . . services will be available,” the
Court explained that such requirements should be upheld
unless they are “unjustified or unduly burdensome.” Id.,
at 651.
The Zauderer standard does not apply here. Most obvi-
ously, the licensed notice is not limited to “purely factual
and uncontroversial information about the terms under
which . . . services will be available.” 471 U. S., at 651; see
also Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 573 (1995) (explain-
ing that Zauderer does not apply outside of these circum-
stances). The notice in no way relates to the services that
licensed clinics provide. Instead, it requires these clinics
to disclose information about state-sponsored services—
including abortion, anything but an “uncontroversial”
topic. Accordingly, Zauderer has no application here.
10 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
2
In addition to disclosure requirements under Zauderer,
this Court has upheld regulations of professional conduct
that incidentally burden speech. “[T]he First Amendment
does not prevent restrictions directed at commerce or
conduct from imposing incidental burdens on speech,”
Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011), and
professionals are no exception to this rule, see Ohralik,
supra, at 456. Longstanding torts for professional mal-
practice, for example, “fall within the traditional purview
of state regulation of professional conduct.” NAACP v.
Button, 371 U. S. 415, 438 (1963); but cf. id., at 439 (“[A]
State may not, under the guise of prohibiting professional
misconduct, ignore constitutional rights”). While drawing
the line between speech and conduct can be difficult, this
Court’s precedents have long drawn it, see, e.g., Sorrell,
supra, at 567; Giboney v. Empire Storage & Ice Co., 336
U. S. 490, 502 (1949), and the line is “ ‘long familiar to the
bar,’ ” United States v. Stevens, 559 U. S. 460, 468 (2010)
(quoting Simon & Schuster, Inc. v. Members of N. Y State
Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY,
J., concurring in judgment)).
In Planned Parenthood of Southeastern Pa. v. Casey, for
example, this Court upheld a law requiring physicians to
obtain informed consent before they could perform an
abortion. 505 U. S., at 884 (joint opinion of O’Connor,
KENNEDY, and Souter, JJ.). Pennsylvania law required
physicians to inform their patients of “the nature of the
procedure, the health risks of the abortion and childbirth,
and the ‘probable gestational age of the unborn child.’ ”
Id., at 881. The law also required physicians to inform
patients of the availability of printed materials from the
State, which provided information about the child and
various forms of assistance. Ibid.The joint opinion in Casey rejected a free-speech chal-
lenge to this informed-consent requirement. Id., at 884. It
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
described the Pennsylvania law as “a requirement that a
doctor give a woman certain information as part of obtain-
ing her consent to an abortion,” which “for constitutional
purposes, [was] no different from a requirement that a
doctor give certain specific information about any medical
procedure.” Ibid. The joint opinion explained that the law
regulated speech only “as part of the practice of medicine,
subject to reasonable licensing and regulation by the
State.” Ibid. (emphasis added). Indeed, the requirement
that a doctor obtain informed consent to perform an opera-
tion is “firmly entrenched in American tort law.” Cruzan
v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990);
see, e.g., Schloendorff v. Society of N. Y. Hospital, 211
N. Y. 125, 129–130, 105 N. E. 92, 93 (1914) (Cardozo, J.)
(explaining that “a surgeon who performs an operation
without his patient’s consent commits an assault”).
The licensed notice at issue here is not an informed-
consent requirement or any other regulation of professional
conduct. The notice does not facilitate informed consent to
a medical procedure. In fact, it is not tied to a procedure
at all. It applies to all interactions between a covered
facility and its clients, regardless of whether a medical
procedure is ever sought, offered, or performed. If a cov-
ered facility does provide medical procedures, the notice
provides no information about the risks or benefits of
those procedures. Tellingly, many facilities that provide
the exact same services as covered facilities—such as
general practice clinics, see §123471(a)—are not required
to provide the licensed notice. The licensed notice regu-
lates speech as speech.
3
Outside of the two contexts discussed above—
disclosures under Zauderer and professional conduct—this
Court’s precedents have long protected the First Amend-
ment rights of professionals. For example, this Court has
12 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
applied strict scrutiny to content-based laws that regulate
the noncommercial speech of lawyers, see Reed, 576 U. S.,
at ___ (slip op., at 10) (discussing Button, supra, at 438);
In re Primus, 436 U. S. 412, 432 (1978); professional fund-
raisers, see Riley, 487 U. S., at 798; and organizations that
provided specialized advice about international law, see
Holder v. Humanitarian Law Project, 561 U. S. 1, 27–28
(2010). And the Court emphasized that the lawyer’s
statements in Zauderer would have been “fully protected”
if they were made in a context other than advertising. 471
U. S., at 637, n. 7. Moreover, this Court has stressed the
danger of content-based regulations “in the fields of medi-
cine and public health, where information can save lives.”
Sorrell, supra, at 566.
The dangers associated with content-based regulations
of speech are also present in the context of professional
speech. As with other kinds of speech, regulating the
content of professionals’ speech “pose[s] the inherent risk
that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or infor-
mation.” Turner Broadcasting, 512 U. S., at 641. Take
medicine, for example. “Doctors help patients make deeply
personal decisions, and their candor is crucial.” Woll-
schlaeger v. Governor of Florida, 848 F. 3d 1293, 1328
(CA11 2017) (en banc) (W. Pryor, J. concurring).
Throughout history, governments have “manipulat[ed] the
content of doctor-patient discourse” to increase state power
and suppress minorities:
“For example, during the Cultural Revolution, Chi-
nese physicians were dispatched to the countryside to
convince peasants to use contraception. In the 1930s,
the Soviet government expedited completion of a con-
struction project on the Siberian railroad by ordering
doctors to both reject requests for medical leave from
work and conceal this government order from their
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
patients. In Nazi Germany, the Third Reich system-
atically violated the separation between state ideology
and medical discourse. German physicians were
taught that they owed a higher duty to the ‘health of
the Volk’ than to the health of individual patients.
Recently, Nicolae Ceausescu’s strategy to increase the
Romanian birth rate included prohibitions against
giving advice to patients about the use of birth control
devices and disseminating information about the use
of condoms as a means of preventing the transmission
of AIDS.” Berg, Toward a First Amendment Theory of
Doctor-Patient Discourse and the Right To Receive
Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201–
202 (1994) (footnotes omitted).
Further, when the government polices the content of
professional speech, it can fail to “ ‘preserve an uninhibited
marketplace of ideas in which truth will ultimately pre-
vail.’ ” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014)
(slip op., at 8–9). Professionals might have a host of good-
faith disagreements, both with each other and with the
government, on many topics in their respective fields.
Doctors and nurses might disagree about the ethics of
assisted suicide or the benefits of medical marijuana;
lawyers and marriage counselors might disagree about the
prudence of prenuptial agreements or the wisdom of di-
vorce; bankers and accountants might disagree about the
amount of money that should be devoted to savings or the
benefits of tax reform. “[T]he best test of truth is the
power of the thought to get itself accepted in the competi-
tion of the market,” Abrams v. United States, 250 U. S.
616, 630 (1919) (Holmes, J., dissenting), and the people
lose when the government is the one deciding which ideas
should prevail.
“Professional speech” is also a difficult category to define
with precision. See Entertainment Merchants Assn., 564
14 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
U. S., at 791. As defined by the courts of appeals, the
professional-speech doctrine would cover a wide array of
individuals—doctors, lawyers, nurses, physical therapists,
truck drivers, bartenders, barbers, and many others. See
Smolla, Professional Speech and the First Amendment,
119 W. Va. L. Rev. 67, 68 (2016). One court of appeals has
even applied it to fortune tellers. See Moore-King, 708
F. 3d, at 569. All that is required to make something a
“profession,” according to these courts, is that it involves
personalized services and requires a professional license
from the State. But that gives the States unfettered power
to reduce a group’s First Amendment rights by simply
imposing a licensing requirement. States cannot choose
the protection that speech receives under the First
Amendment, as that would give them a powerful tool to
impose “invidious discrimination of disfavored subjects.”
Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423–
424, n. 19 (1993); see also Riley, 487 U. S., at 796 (“[S]tate
labels cannot be dispositive of [the] degree of First
Amendment protection” (citing Bigelow v. Virginia, 421
U. S. 809, 826 (1975)).
C
In sum, neither California nor the Ninth Circuit has
identified a persuasive reason for treating professional
speech as a unique category that is exempt from ordinary
First Amendment principles. We do not foreclose the
possibility that some such reason exists. We need not do
so because the licensed notice cannot survive even inter-
mediate scrutiny. California asserts a single interest to
justify the licensed notice: providing low-income women
with information about state-sponsored services. Assum-
ing that this is a substantial state interest, the licensed
notice is not sufficiently drawn to achieve it.
If California’s goal is to educate low-income women
about the services it provides, then the licensed notice is
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
“wildly underinclusive.” Entertainment Merchants Assn.,
supra, at 802. The notice applies only to clinics that have
a “primary purpose” of “providing family planning or
pregnancy-related services” and that provide two of six
categories of specific services. §123471(a). Other clinics
that have another primary purpose, or that provide only
one category of those services, also serve low-income
women and could educate them about the State’s services.
According to the legislative record, California has “nearly
1,000 community clinics”—including “federally designated
community health centers, migrant health centers, rural
health centers, and frontier health centers”—that “serv[e]
more than 5.6 million patients . . . annually through over
17 million patient encounters.” App. 58. But most of
those clinics are excluded from the licensed notice re-
quirement without explanation. Such “[u]nderinclusive-
ness raises serious doubts about whether the government
is in fact pursuing the interest it invokes, rather than
disfavoring a particular speaker or viewpoint.” Enter-
tainment Merchants Assn., 564 U. S., at 802.
The FACT Act also excludes, without explanation, fed-
eral clinics and Family PACT providers from the licensed-
notice requirement. California notes that those clinics can
enroll women in California’s programs themselves, but
California’s stated interest is informing women that these
services exist in the first place. California has identified
no evidence that the exempted clinics are more likely to
provide this information than the covered clinics. In fact,
the exempted clinics have long been able to enroll women
in California’s programs, but the FACT Act was premised
on the notion that “thousands of women remain unaware
of [them].” Cal. Legis. Serv., §1(b). If the goal is to max-
imize women’s awareness of these programs, then it would
seem that California would ensure that the places that can
immediately enroll women also provide this information.
The FACT Act’s exemption for these clinics, which serve
16 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
many women who are pregnant or could become pregnant
in the future, demonstrates the disconnect between its
stated purpose and its actual scope. Yet “[p]recision . . .
must be the touchstone” when it comes to regulations of
speech, which “so closely touc[h] our most precious free-
doms.” Button, 371 U. S., at 438.
Further, California could inform low-income women
about its services “without burdening a speaker with
unwanted speech.” Riley, 487 U. S., at 800. Most obvi-
ously, it could inform the women itself with a public-
information campaign. See ibid. (concluding that a com-
pelled disclosure was unconstitutional because the
government could “itself publish . . . the disclosure”). Califor-
nia could even post the information on public property
near crisis pregnancy centers. California argues that it
has already tried an advertising campaign, and that many
women who are eligible for publicly-funded healthcare
have not enrolled. But California has identified no evi-
dence to that effect. And regardless, a “tepid response”
does not prove that an advertising campaign is not a
sufficient alternative. United States v. Playboy Enter-
tainment Group, Inc., 529 U. S. 803, 816 (2000). Here, for
example, individuals might not have enrolled in Califor-
nia’s services because they do not want them, or because
California spent insufficient resources on the advertising
campaign. Either way, California cannot co-opt the li-
censed facilities to deliver its message for it. “[T]he First
Amendment does not permit the State to sacrifice speech
for efficiency.” Riley, supra, at 795; accord, Arizona Free
Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S.
721, 747 (2011).
In short, petitioners are likely to succeed on the merits
of their challenge to the licensed notice. Contrary to the
suggestion in the dissent, post, at 3–4 (opinion of BREYER,
J.), we do not question the legality of health and safety
warnings long considered permissible, or purely factual
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
and uncontroversial disclosures about commercial
products.
III
We next address the unlicensed notice. The parties
dispute whether the unlicensed notice is subject to defer-
ential review under Zauderer.3 We need not decide
whether the Zauderer standard applies to the unlicensed
notice. Even under Zauderer, a disclosure requirement
cannot be “unjustified or unduly burdensome.” 471 U. S.,
at 651. Our precedents require disclosures to remedy a
harm that is “potentially real not purely hypothetical,”
Ibanez v. Florida Dept. of Business and Professional Regu-
lation, Bd. of Accountancy, 512 U. S. 136, 146 (1994), and
to extend “no broader than reasonably necessary,” In re R.
M. J., 455 U. S. 191, 203 (1982); accord, Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433
U. S. 350, 384 (1977); cf. Zauderer, 471 U. S., at 649 (re-
jecting “broad prophylactic rules” in this area). Otherwise,
they risk “chilling” protected speech.” Id., at 651. Im-
portantly, California has the burden to prove that the
unlicensed notice is neither unjustified nor unduly bur-
densome. See Ibanez, 512 U. S., at 146. It has not met its
burden.
We need not decide what type of state interest is suffi-
cient to sustain a disclosure requirement like the unli-
censed notice. California has not demonstrated any justi-
fication for the unlicensed notice that is more than “purely
hypothetical.” Ibid. The only justification that the Cali-
fornia Legislature put forward was ensuring that “preg-
nant women in California know when they are getting
——————
3 Other than a conclusory assertion that the unlicensed notice satis-
fies any standard of review, see Brief for Respondents 19, California
does not explain how the unlicensed notice could satisfy any standard
other than Zauderer.
18 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
medical care from licensed professionals.” 2015 Cal. Legis.
Serv., §1(e). At oral argument, however, California denied
that the justification for the FACT Act was that women
“go into [crisis pregnancy centers] and they don’t realize
what they are.” See Tr. of Oral Arg. at 44–45. Indeed,
California points to nothing suggesting that pregnant
women do not already know that the covered facilities are
staffed by unlicensed medical professionals. The services
that trigger the unlicensed notice—such as having “volun-
teers who collect health information from clients,” “adver-
tis[ing] . . . pregnancy options counseling,” and offering
over-the-counter “pregnancy testing,” §123471(b)—do not
require a medical license. And California already makes it
a crime for individuals without a medical license to prac-
tice medicine. See Cal. Bus. & Prof. Code Ann. §2052. At
this preliminary stage of the litigation, we agree that
petitioners are likely to prevail on the question whether
California has proved a justification for the unlicensed
notice.4
Even if California had presented a nonhypothetical
justification for the unlicensed notice, the FACT Act unduly
burdens protected speech. The unlicensed notice imposes
a government-scripted, speaker-based disclosure require-
ment that is wholly disconnected from California’s infor-
mational interest. It requires covered facilities to post
California’s precise notice, no matter what the facilities
say on site or in their advertisements. And it covers a
curiously narrow subset of speakers. While the licensed
notice applies to facilities that provide “family planning”
services and “contraception or contraceptive methods,”
§123471(a), the California Legislature dropped these
triggering conditions for the unlicensed notice. The unli-
——————
4 Nothing in our opinion should be read to foreclose the possibility
that California will gather enough evidence in later stages of this
litigation.
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
censed notice applies only to facilities that primarily
provide “pregnancy-related” services. §123471(b). Thus, a
facility that advertises and provides pregnancy tests is
covered by the unlicensed notice, but a facility across the
street that advertises and provides nonprescription con-
traceptives is excluded—even though the latter is no less
likely to make women think it is licensed. This Court’s
precedents are deeply skeptical of laws that “distinguis[h]
among different speakers, allowing speech by some but not
others.” Citizens United v. Federal Election Comm’n, 558
U. S. 310, 340 (2010). Speaker-based laws run the risk
that “the State has left unburdened those speakers whose
messages are in accord with its own views.” Sorrell, 564
U. S., at 580.
The application of the unlicensed notice to advertise-
ments demonstrates just how burdensome it is. The notice
applies to all “print and digital advertising materials” by
an unlicensed covered facility. §123472(b). These materi-
als must include a government-drafted statement that
“[t]his facility is not licensed as a medical facility by the
State of California and has no licensed medical provider
who provides or directly supervises the provision of ser-
vices.” §123472(b)(1). An unlicensed facility must call
attention to the notice, instead of its own message, by
some method such as larger text or contrasting type or
color. See §§123472(b)(2)–(3). This scripted language
must be posted in English and as many other languages as
California chooses to require. As California conceded at
oral argument, a billboard for an unlicensed facility that
says “Choose Life” would have to surround that two-word
statement with a 29-word statement from the government,
in as many as 13 different languages. In this way, the
unlicensed notice drowns out the facility’s own message.
More likely, the “detail required” by the unlicensed notice
“effectively rules out” the possibility of having such a
billboard in the first place. Ibanez, supra, at 146.
20 NATIONAL INSTITUTE OF FAMILY AND
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Opinion of the Court
For all these reasons, the unlicensed notice does not
satisfy Zauderer, assuming that standard applies. Cali-
fornia has offered no justification that the notice plausibly
furthers. It targets speakers, not speech, and imposes an
unduly burdensome disclosure requirement that will chill
their protected speech. Taking all these circumstances
together, we conclude that the unlicensed notice is unjusti-
fied and unduly burdensome under Zauderer. We express
no view on the legality of a similar disclosure requirement
that is better supported or less burdensome.
IV
We hold that petitioners are likely to succeed on the
merits of their claim that the FACT Act violates the First
Amendment. We reverse the judgment of the Court of
Appeals and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1140
_________________
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v.
XAVIER BECERRA, ATTORNEY GENERAL OF
CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE,
JUSTICE ALITO, and JUSTICE GORSUCH join, concurring.
I join the Court’s opinion in all respects.
This separate writing seeks to underscore that the
apparent viewpoint discrimination here is a matter of
serious constitutional concern. See ante, at 6, n. 2. The
Court, in my view, is correct not to reach this question. It
was not sufficiently developed, and the rationale for the
Court’s decision today suffices to resolve the case. And
had the Court’s analysis been confined to viewpoint dis-
crimination, some legislators might have inferred that if
the law were reenacted with a broader base and broader
coverage it then would be upheld.
It does appear that viewpoint discrimination is inherent
in the design and structure of this Act. This law is a
paradigmatic example of the serious threat presented
when government seeks to impose its own message in the
place of individual speech, thought, and expression. For
here the State requires primarily pro-life pregnancy cen-
ters to promote the State’s own preferred message adver-
tising abortions. This compels individuals to contradict
their most deeply held beliefs, beliefs grounded in basic
philosophical, ethical, or religious precepts, or all of these.
2 NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES v. BECERRA
KENNEDY, J., concurring
And the history of the Act’s passage and its underinclusive
application suggest a real possibility that these individu-
als were targeted because of their beliefs.
The California Legislature included in its official history
the congratulatory statement that the Act was part of
California’s legacy of “forward thinking.” App. 38–39. But
it is not forward thinking to force individuals to “be an
instrument for fostering public adherence to an ideological
point of view [they] fin[d] unacceptable.” Wooley v.
Maynard, 430 U. S. 705, 715 (1977). It is forward think-
ing to begin by reading the First Amendment as ratified in
1791; to understand the history of authoritarian govern-
ment as the Founders then knew it; to confirm that history
since then shows how relentless authoritarian regimes
are in their attempts to stifle free speech; and to carry
those lessons onward as we seek to preserve and teach the
necessity of freedom of speech for the generations to come.
Governments must not be allowed to force persons to
express a message contrary to their deepest convictions.
Freedom of speech secures freedom of thought and belief.
This law imperils those liberties.
Cite as: 585 U. S. ____ (2018) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1140
_________________
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v.
XAVIER BECERRA, ATTORNEY GENERAL OF
CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The petitioners ask us to consider whether two sections
of a California statute violate the First Amendment. The
first section requires licensed medical facilities (that pro-
vide women with assistance involving pregnancy or family
planning) to tell those women where they might obtain
help, including financial help, with comprehensive family
planning services, prenatal care, and abortion. The second
requires unlicensed facilities offering somewhat similar
services to make clear that they are unlicensed. In my
view both statutory sections are likely constitutional, and
I dissent from the Court’s contrary conclusions.
I
The first statutory section applies to licensed medical
facilities dealing with pregnancy and which also provide
specific services such as prenatal care, contraception
counseling, pregnancy diagnosis, or abortion-related ser-
vices. Cal. Health & Safety Code Ann. §§123471(a), 1204,
1206(h) (West 2018) (covering “primary care clinics” that
serve low-income women); Cal. Code Regs., tit. 22, §75026
(2018) (“primary care clinics” are medical facilities that
2 NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES v. BECERRA
BREYER, J., dissenting
provide “services for the care and treatment of patients for
whom the clinic accepts responsibility” with the “direction
or supervision” of each “service” undertaken “by a person
licensed, certified or registered to provide such service”).
The statute requires these facilities to post a notice in
their waiting rooms telling their patients:
“California has public programs that provide immedi-
ate free or low-cost access to comprehensive family
planning services (including all FDA-approved meth-
ods of contraception), prenatal care, and abortion for
eligible women. To determine whether you qualify,
contact the county social services office at [insert the
telephone number].” §123472(a)(1).
The petitioners here, a group of covered medical facili-
ties that object to abortion for religious reasons, brought
this case seeking an injunction against enforcement of the
California Reproductive Freedom, Accountability, Com-
prehensive Care, and Transparency Act on the ground
that it violates the First Amendment on its face. The
District Court denied a preliminary injunction, and the
Court of Appeals affirmed. The majority now reverses the
Court of Appeals on the ground that the petitioners have
shown a likelihood of success on the merits, i.e., that the
statute likely violates the petitioners’ free speech rights
and is unconstitutional on its face.
A
Before turning to the specific law before us, I focus upon
the general interpretation of the First Amendment that
the majority says it applies. It applies heightened scru-
tiny to the Act because the Act, in its view, is “content
based.” Ante, at 6–7. “By compelling individuals to speak
a particular message,” it adds, “such notices ‘alte[r] the
content of [their] speech.’ ” Ante, at 7 (quoting Riley v.
National Federation of Blind of N. C., Inc., 487 U. S. 781,
Cite as: 585 U. S. ____ (2018) 3
BREYER, J., dissenting
795 (1988)) (alteration in original). “As a general matter,”
the majority concludes, such laws are “presumptively
unconstitutional” and are subject to “stringent” review.
Ante, at 6–7.
The majority recognizes exceptions to this general rule:
It excepts laws that “require professionals to disclose
factual, noncontroversial information in their ‘commercial
speech,’ ” provided that the disclosure “relates to the ser-
vices that [the regulated entities] provide.” Ante, at 8–9.
It also excepts laws that “regulate professional conduct”
and only “incidentally burden speech.” Ante, at 9–10.
This constitutional approach threatens to create serious
problems. Because much, perhaps most, human behavior
takes place through speech and because much, perhaps
most, law regulates that speech in terms of its content, the
majority’s approach at the least threatens considerable
litigation over the constitutional validity of much, perhaps
most, government regulation. Virtually every disclosure
law could be considered “content based,” for virtually
every disclosure law requires individuals “to speak a
particular message.” See Reed v. Town of Gilbert, 576
U. S. ___, ___ (2015) (BREYER, J., concurring in judgment)
(slip op., at 3) (listing regulations that inevitably involve
content discrimination, ranging from securities disclosures
to signs at petting zoos). Thus, the majority’s view, if
taken literally, could radically change prior law, perhaps
placing much securities law or consumer protection law at
constitutional risk, depending on how broadly its excep-
tions are interpreted.
Many ordinary disclosure laws would fall outside the
majority’s exceptions for disclosures related to the profes-
sional’s own services or conduct. These include numerous
commonly found disclosure requirements relating to the
medical profession. See, e.g., Cal. Veh. Code Ann.
§27363.5 (West 2014) (requiring hospitals to tell parents
about child seat belts); Cal. Health & Safety Code Ann.
4 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
§123222.2 (requiring hospitals to ask incoming patients if
they would like the facility to give their family information
about patients’ rights and responsibilities); N. C. Gen. Stat.
Ann. §131E–79.2 (2017) (requiring hospitals to tell par-
ents of newborns about pertussis disease and the available
vaccine). These also include numerous disclosure re-
quirements found in other areas. See, e.g., N. Y. C. Rules
& Regs., tit. 1, §27–01 (2018) (requiring signs by elevators
showing stair locations); San Francisco Dept. of Health,
Director’s Rules & Regs., Garbage and Refuse (July 8,
2010) (requiring property owners to inform tenants about
garbage disposal procedures).
The majority, at the end of Part II of its opinion, per-
haps recognizing this problem, adds a general disclaimer.
It says that it does not “question the legality of health and
safety warnings long considered permissible, or purely
factual and uncontroversial disclosures about commercial
products.” Ante, at 16–17. But this generally phrased
disclaimer would seem more likely to invite litigation than
to provide needed limitation and clarification. The major-
ity, for example, does not explain why the Act here, which
is justified in part by health and safety considerations,
does not fall within its “health” category. Ante, at 14; see
also Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 882–884 (1992) (joint opinion of O’Connor,
KENNEDY, and Souter, JJ.) (reasoning that disclosures
related to fetal development and childbirth are related to
the health of a woman seeking an abortion). Nor does the
majority opinion offer any reasoned basis that might help
apply its disclaimer for distinguishing lawful from unlaw-
ful disclosures. In the absence of a reasoned explanation of
the disclaimer’s meaning and rationale, the disclaimer is
unlikely to withdraw the invitation to litigation that the
majority’s general broad “content-based” test issues. That
test invites courts around the Nation to apply an unpre-
dictable First Amendment to ordinary social and economic
Cite as: 585 U. S. ____ (2018) 5
BREYER, J., dissenting
regulation, striking down disclosure laws that judges may
disfavor, while upholding others, all without grounding
their decisions in reasoned principle.
Notably, the majority says nothing about limiting its
language to the kind of instance where the Court has
traditionally found the First Amendment wary of content-
based laws, namely, in cases of viewpoint discrimination.
“Content-based laws merit this protection because they
present, albeit sometimes in a subtler form, the same
dangers as laws that regulate speech based on viewpoint.”
Reed, 576 U. S., at ___ (ALITO, J., concurring) (slip op., at
1). Accordingly, “[l]imiting speech based on its ‘topic’ or
‘subject’ ” can favor “those who do not want to disturb the
status quo.” Ibid. But the mine run of disclosure re-
quirements do nothing of that sort. They simply alert the
public about child seat belt laws, the location of stairways,
and the process to have their garbage collected, among
other things.
Precedent does not require a test such as the majority’s.
Rather, in saying the Act is not a longstanding health and
safety law, the Court substitutes its own approach—
without a defining standard—for an approach that was
reasonably clear. Historically, the Court has been wary of
claims that regulation of business activity, particularly
health-related activity, violates the Constitution. Ever
since this Court departed from the approach it set forth in
Lochner v. New York, 198 U. S. 45 (1905), ordinary eco-
nomic and social legislation has been thought to raise
little constitutional concern. As Justice Brandeis wrote,
typically this Court’s function in such cases “is only to
determine the reasonableness of the Legislature’s belief in
the existence of evils and in the effectiveness of the remedy
provided.” New State Ice Co. v. Liebmann, 285 U. S. 262,
286–287 (1932) (dissenting opinion); see Williamson v. Lee
Optical of Okla., Inc., 348 U. S. 483, 486–488 (1955)
(adopting the approach of Justice Brandeis).
6 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
The Court has taken this same respectful approach to
economic and social legislation when a First Amendment
claim like the claim present here is at issue. See, e.g.,
Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U. S. 626, 651 (1985) (upholding rea-
sonable disclosure requirements for attorneys); Milavetz,
Gallop & Milavetz, P. A. v. United States, 559 U. S. 229,
252–253 (2010) (same); cf. Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 563–
564 (1980) (applying intermediate scrutiny to other re-
strictions on commercial speech); In re R. M. J., 455 U. S.
191, 203 (1982) (no First Amendment protection for mis-
leading or deceptive commercial speech). But see Sorrell
v. IMS Health Inc., 564 U. S. 552 (2011) (striking down
regulation of pharmaceutical drug-related information).
Even during the Lochner era, when this Court struck
down numerous economic regulations concerning industry,
this Court was careful to defer to state legislative judg-
ments concerning the medical profession. The Court took
the view that a State may condition the practice of medi-
cine on any number of requirements, and physicians, in
exchange for following those reasonable requirements,
could receive a license to practice medicine from the State.
Medical professionals do not, generally speaking, have a
right to use the Constitution as a weapon allowing them
rigorously to control the content of those reasonable condi-
tions. See, e.g., Dent v. West Virginia, 129 U. S. 114 (1889)
(upholding medical licensing requirements); Hawker v.
New York, 170 U. S. 189 (1898) (same); Collins v. Texas,
223 U. S. 288, 297–298 (1912) (recognizing the “right of
the State to adopt a policy even upon medical matters
concerning which there is difference of opinion and dis-
pute”); Lambert v. Yellowley, 272 U. S. 581, 596 (1926)
(“[T]here is no right to practice medicine which is not
subordinate to the police power of the States”); Graves v.
Minnesota, 272 U. S. 425, 429 (1926) (statutes “regulating
Cite as: 585 U. S. ____ (2018) 7
BREYER, J., dissenting
the practice of medicine” involve “very different considera-
tions” from those applicable to “trades [such as] locomotive
engineers and barbers”); Semler v. Oregon Bd. of Dental
Examiners, 294 U. S. 608, 612 (1935) (upholding state
regulation of dentistry given the “vital interest of public
health”). In the name of the First Amendment, the majority
today treads into territory where the pre-New Deal, as well
as the post-New Deal, Court refused to go.
The Court, in justification, refers to widely accepted
First Amendment goals, such as the need to protect the
Nation from laws that “ ‘suppress unpopular ideas or
information’ ” or inhibit the “ ‘marketplace of ideas in
which truth will ultimately prevail.’ ” Ante, at 12–13; see
New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964).
The concurrence highlights similar First Amendment
interests. Ante, at 2. I, too, value this role that the First
Amendment plays—in an appropriate case. But here, the
majority enunciates a general test that reaches far beyond
the area where this Court has examined laws closely in
the service of those goals. And, in suggesting that height-
ened scrutiny applies to much economic and social legisla-
tion, the majority pays those First Amendment goals a
serious disservice through dilution. Using the First
Amendment to strike down economic and social laws that
legislatures long would have thought themselves free to
enact will, for the American public, obscure, not clarify,
the true value of protecting freedom of speech.
B
Still, what about this specific case? The disclosure at
issue here concerns speech related to abortion. It involves
health, differing moral values, and differing points of view.
Thus, rather than set forth broad, new, First Amendment
principles, I believe that we should focus more directly
upon precedent more closely related to the case at hand.
This Court has more than once considered disclosure laws
8 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
relating to reproductive health. Though those rules or
holdings have changed over time, they should govern our
disposition of this case.
I begin with Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416 (1983). In that case the Court
considered a city ordinance requiring a doctor to tell a
woman contemplating an abortion about the
“status of her pregnancy, the development of her fe-
tus, the date of possible viability, the physical and
emotional complications that may result from an
abortion, and the availability of agencies to provide
her with assistance and information with respect to
birth control, adoption, and childbirth[, and] . . . ‘the
particular risks associated with her own pregnancy
and the abortion technique to be employed.’ ” Id., at
442 (quoting Akron Codified Ordinances §1870.06(C)
(1978)).
The ordinance further required a doctor to tell such a
woman that “ ‘the unborn child is a human life from the
moment of conception.’ ” Akron, supra, at 444 (quoting
Akron Codified Ordinances §1870.06(B)(3)).
The plaintiffs claimed that this ordinance violated a
woman’s constitutional right to obtain an abortion. And
this Court agreed. The Court stated that laws providing
for a woman’s “informed consent” to an abortion were
normally valid, for they helped to protect a woman’s
health. Akron, 462 U. S., at 443–444. Still, the Court held
that the law at issue went “beyond permissible limits”
because “much of the information required [was] designed
not to inform the woman’s consent but rather to persuade
her to withhold it altogether.” Id., at 444. In the Court’s
view, the city had placed unreasonable “ ‘obstacles in the
path of the doctor upon whom [the woman is] entitled to
rely for advice in connection with her decision.’ ” Id., at
445 (quoting Whalen v. Roe, 429 U. S. 589, 604, n. 33
Cite as: 585 U. S. ____ (2018) 9
BREYER, J., dissenting
(1977)) (alteration in original).
Several years later, in Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U. S. 747 (1986),
the Court considered a Pennsylvania statute that “pre-
scribe[d] in detail the method for securing ‘informed con-
sent’ ” to an abortion. Id., at 760. The statute required the
doctor to tell the patient about health risks associated
with abortion, possibly available benefits for prenatal care,
childbirth, and neonatal care, and agencies offering alter-
natives to abortion. Id., at 760–761. In particular it
required the doctor to give the patient printed materials
that, among other things, said:
“ ‘ “There are many public and private agencies willing
and able to help you to carry your child to term, and to
assist you and your child after your child is born,
whether you choose to keep your child or place her or
him for adoption. The Commonwealth of Pennsylva-
nia strongly urges you to contact them before making
a final decision about abortion. The law requires that
your physician or his agent give you the opportunity
to call agencies like these before you undergo an abor-
tion.” ’ ” Id., at 761 (quoting 18 Pa. Cons. Stat.
§3208(a)(1) (1982)).
The Court, as in Akron, held that the statute’s infor-
mation requirements violated the Constitution. They
were designed “ ‘not to inform the woman’s consent but
rather to persuade her to withhold it altogether.’ ” Thorn-
burgh, supra, at 762 (quoting Akron, supra, at 444). In
the Court’s view, insistence on telling the patient about
the availability of “medical assistance benefits” if she
decided against an abortion was a “poorly disguised ele-
men[t] of discouragement for the abortion decision,” and
the law was the “antithesis of informed consent.” Thorn-
burgh, supra, at 763–764.
These cases, however, whatever support they may have
10 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
given to the majority’s view, are no longer good law. In
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 (1992), the Court again considered a state law
that required doctors to provide information to a woman
deciding whether to proceed with an abortion. That law
required the doctor to tell the woman about the nature of
the abortion procedure, the health risks of abortion and of
childbirth, the “ ‘probable gestational age of the unborn
child,’ ” and the availability of printed materials describing
the fetus, medical assistance for childbirth, potential child
support, and the agencies that would provide adoption
services (or other alternatives to abortion). Id., at 881(joint opinion of O’Connor, KENNEDY, and Souter, JJ.)
(quoting 18 Pa. Cons. Stat. §3205 (1990)).
This time a joint opinion of the Court, in judging whether
the State could impose these informational requirements,
asked whether doing so imposed an “undue burden” upon
women seeking an abortion. Casey, 505 U. S., at 882–883.
It held that it did not. Ibid. Hence the statute was consti-
tutional. Id., at 874. The joint opinion stated that the
statutory requirements amounted to “reasonable meas-
ure[s] to ensure an informed choice, one which might
cause the woman to choose childbirth over abortion.” Id.,
at 883. And, it “overruled” portions of the two cases,
Akron and Thornburgh, that might indicate the contrary.
Id., at 882.
In respect to overruling the earlier cases, it wrote:
“To the extent Akron I and Thornburgh find a consti-
tutional violation when the government requires, as it
does here, the giving of truthful, nonmisleading in-
formation about the nature of the procedure, the at-
tendant health risks and those of childbirth, and the
‘probable gestational age’ of the fetus, those cases go
too far, are inconsistent with Roe’s acknowledgment of
an important interest in potential life, and are over-
Cite as: 585 U. S. ____ (2018) 11
BREYER, J., dissenting
ruled.” Ibid.The joint opinion specifically discussed the First
Amendment, the constitutional provision now directly
before us. It concluded that the statute did not violate the
First Amendment. It wrote:
“All that is left of petitioners’ argument is an asserted
First Amendment right of a physician not to provide
information about the risks of abortion, and child-
birth, in a manner mandated by the State. To be
sure, the physician’s First Amendment rights not to
speak are implicated, see Wooley v. Maynard, 430
U. S. 705 (1977), but only as part of the practice of
medicine, subject to reasonable licensing and regula-
tion by the State, cf. Whalen v. Roe, 429 U. S. 589, 603
(1977). We see no constitutional infirmity in the re-
quirement that the physician provide the information
mandated by the State here.” Casey, 505 U. S., at
884.
Thus, the Court considered the State’s statutory re-
quirements, including the requirement that the doctor
must inform his patient about where she could learn how
to have the newborn child adopted (if carried to term) and
how she could find related financial assistance. Id., at
881. To repeat the point, the Court then held that the
State’s requirements did not violate either the Constitu-
tion’s protection of free speech or its protection of a wom-
an’s right to choose to have an abortion.
C
Taking Casey as controlling, the law’s demand for even-
handedness requires a different answer than that perhaps
suggested by Akron and Thornburgh. If a State can law-
fully require a doctor to tell a woman seeking an abortion
about adoption services, why should it not be able, as here,
to require a medical counselor to tell a woman seeking
12 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
prenatal care or other reproductive healthcare about
childbirth and abortion services? As the question sug-
gests, there is no convincing reason to distinguish between
information about adoption and information about abor-
tion in this context. After all, the rule of law embodies
evenhandedness, and “what is sauce for the goose is nor-
mally sauce for the gander.” Heffernan v. City of Paterson,
578 U. S. ___, ___ (2016) (slip op., at 6).
1
The majority tries to distinguish Casey as concerning a
regulation of professional conduct that only incidentally
burdened speech. Ante, at 10–11. Casey, in its view,
applies only when obtaining “informed consent” to a medi-
cal procedure is directly at issue.
This distinction, however, lacks moral, practical, and
legal force. The individuals at issue here are all medical
personnel engaging in activities that directly affect a
woman’s health—not significantly different from the
doctors at issue in Casey. After all, the statute here ap-
plies only to “primary care clinics,” which provide “services
for the care and treatment of patients for whom the clinic
accepts responsibility.” Cal. Code Regs., tit. 22, §75026(a);
see Cal. Health & Safety Code Ann. §§123471(a), 1204,
1206(h). And the persons responsible for patients at those
clinics are all persons “licensed, certified or registered to
provide” pregnancy-related medical services. Cal. Code
Regs., tit. 22, §75026(c). The petitioners have not, either
here or in the District Court, provided any example of a
covered clinic that is not operated by licensed doctors or
what the statute specifies are equivalent professionals.
See, e.g., App. to Pet. for Cert. 92a (identifying two obste-
trician/gynecologists, a radiologist, an anesthesiologist, a
certified nurse midwife, a nurse practitioner, 10 nurses,
and two registered diagnostic medical sonographers on
staff).
Cite as: 585 U. S. ____ (2018) 13
BREYER, J., dissenting
The Act requires these medical professionals to disclose
information about the possibility of abortion (including
potential financial help) that is as likely helpful to grant-
ing “informed consent” as is information about the possi-
bility of adoption and childbirth (including potential finan-
cial help). That is why I find it impossible to drive any
meaningful legal wedge between the law, as interpreted in
Casey, and the law as it should be applied in this case. If
the law in Casey regulated speech “only ‘as part of the
practice of medicine,’ ” ante, at 11 (quoting Casey, supra, at
884), so too here.
The majority contends that the disclosure here is unre-
lated to a “medical procedure,” unlike that in Casey, and
so the State has no reason to inform a woman about alter-
natives to childbirth (or, presumably, the health risks of
childbirth). Ante, at 11. Really? No one doubts that
choosing an abortion is a medical procedure that involves
certain health risks. See Whole Woman’s Health v. Heller-
stedt, 579 U. S. ___, ___ (2016) (slip op., at 30) (identifying
the mortality rate in Texas as 1 in 120,000 to 144,000
abortions). But the same is true of carrying a child to
term and giving birth. That is why prenatal care often
involves testing for anemia, infections, measles, chicken
pox, genetic disorders, diabetes, pneumonia, urinary tract
infections, preeclampsia, and hosts of other medical condi-
tions. Childbirth itself, directly or through pain manage-
ment, risks harms of various kinds, some connected with
caesarean or surgery-related deliveries, some related to
more ordinary methods of delivery. Indeed, nationwide
“childbirth is 14 times more likely than abortion to result
in” the woman’s death. Ibid. Health considerations do not
favor disclosure of alternatives and risks associated with
the latter but not those associated with the former.
In any case, informed consent principles apply more
broadly than only to discrete “medical procedures.” Pre-
scription drug labels warn patients of risks even though
14 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
taking prescription drugs may not be considered a “medi-
cal procedure.” 21 CFR §201.56 (2017). In California,
clinics that screen for breast cancer must post a sign in
their offices notifying patients that, if they are diagnosed
with breast cancer, their doctor must provide “a written
summary of alternative efficacious methods of treatment,”
a notification that does not relate to the screening proce-
dure at issue. Cal. Health & Safety Code Ann. §109277.
If even these disclosures fall outside the majority’s
cramped view of Casey and informed consent, it undoubt-
edly would invalidate the many other disclosures that are
routine in the medical context as well. Supra, at 3–4.
The majority also finds it “[t]ellin[g]” that general prac-
tice clinics—i.e., paid clinics—are not required to provide
the licensed notice. Ante, at 11. But the lack-of-
information problem that the statute seeks to ameliorate
is a problem that the State explains is commonly found
among low-income women. See Brief for State Respond-
ents 5–6. That those with low income might lack the time
to become fully informed and that this circumstance might
prove disproportionately correlated with income is not
intuitively surprising. Nor is it surprising that those with
low income, whatever they choose in respect to pregnancy,
might find information about financial assistance particu-
larly useful. There is “nothing inherently suspect” about
this distinction, McCullen v. Coakley, 573 U. S. ___, ___
(2014) (slip op., at 15), which is not “based on the content
of [the advocacy] each group offers,” Turner Broadcasting
System, Inc. v. FCC, 512 U. S. 622, 658–659 (1994), but
upon the patients the group generally serves and the
needs of that population.
2
Separately, finding no First Amendment infirmity in the
licensed notice is consistent with earlier Court rulings.
For instance, in Zauderer we upheld a requirement that
Cite as: 585 U. S. ____ (2018) 15
BREYER, J., dissenting
attorneys disclose in their advertisements that clients
might be liable for significant litigation costs even if their
lawsuits were unsuccessful. 471 U. S., at 650. We refused
to apply heightened scrutiny, instead asking whether the
disclosure requirements were “reasonably related to the
State’s interest in preventing deception of consumers.”
Id., at 651.
The majority concludes that Zauderer does not apply
because the disclosure “in no way relates to the services
that licensed clinics provide.” Ante, at 9. But information
about state resources for family planning, prenatal care,
and abortion is related to the services that licensed clinics
provide. These clinics provide counseling about contracep-
tion (which is a family-planning service), ultrasounds or
pregnancy testing (which is prenatal care), or abortion.
Cal. Health & Safety Code Ann. §123471(a). The required
disclosure is related to the clinic’s services because it
provides information about state resources for the very
same services. A patient who knows that she can receive
free prenatal care from the State may well prefer to forgo
the prenatal care offered at one of the clinics here. And for
those interested in family planning and abortion services,
information about such alternatives is relevant infor-
mation to patients offered prenatal care, just as Casey
considered information about adoption to be relevant to
the abortion decision.
Regardless, Zauderer is not so limited. Zauderer turned
on the “material differences between disclosure require-
ments and outright prohibitions on speech.” 471 U. S., at
650. A disclosure requirement does not prevent speakers
“from conveying information to the public,” but “only
require[s] them to provide somewhat more information
than they might otherwise be inclined to present.” Ibid.Where a State’s requirement to speak “purely factual and
uncontroversial information” does not attempt “to ‘pre-
scribe what shall be orthodox in politics, nationalism,
16 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
religion, or other matters of opinion or force citizens to
confess by word or act their faith therein,’ ” it does not
warrant heightened scrutiny. Id., at 651 (quoting West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)).
In Zauderer, the Court emphasized the reason that the
First Amendment protects commercial speech at all: “the
value to consumers of the information such speech pro-
vides.” 471 U. S., at 651. For that reason, a professional’s
“constitutionally protected interest in not providing any
particular factual information in his advertising is mini-
mal.” Ibid. But this rationale is not in any way tied to
advertisements about a professional’s own services. For
instance, it applies equally to a law that requires doctors,
when discharging a child under eight years of age, to
“provide to and discuss with the parents . . . information
on the current law requiring child passenger restraint
systems, safety belts, and the transportation of children in
rear seats.” Cal. Veh. Code Ann. §27363.5(a). Even
though child seat belt laws do not directly relate to the
doctor’s own services, telling parents about such laws does
nothing to undermine the flow of factual information.
Whether the context is advertising the professional’s own
services or other commercial speech, a doctor’s First
Amendment interest in not providing factual information
to patients is the same: minimal, because his professional
speech is protected precisely because of its informational
value to patients. There is no reason to subject such laws
to heightened scrutiny.
Accordingly, the majority’s reliance on cases that pro-
hibit rather than require speech is misplaced. Ante, at 12–
14. I agree that “ ‘in the fields of medicine and public
heath, . . . information can save lives,’ ” but the licensed
disclosure serves that informational interest by requiring
clinics to notify patients of the availability of state re-
sources for family planning services, prenatal care, and
abortion, which—unlike the majority’s examples of norma-
Cite as: 585 U. S. ____ (2018) 17
BREYER, J., dissenting
tive statements, ante, at 13—is truthful and nonmislead-
ing information. Abortion is a controversial topic and a
source of normative debate, but the availability of state
resources is not a normative statement or a fact of debat-
able truth. The disclosure includes information about
resources available should a woman seek to continue her
pregnancy or terminate it, and it expresses no official
preference for one choice over the other. Similarly, the
majority highlights an interest that often underlies our
decisions in respect to speech prohibitions—the market-
place of ideas. But that marketplace is fostered, not hin-
dered, by providing information to patients to enable them
to make fully informed medical decisions in respect to
their pregnancies.
Of course, one might take the majority’s decision to
mean that speech about abortion is special, that it involves
in this case not only professional medical matters, but also
views based on deeply held religious and moral beliefs
about the nature of the practice. To that extent, arguably,
the speech here is different from that at issue in Zauderer.
But assuming that is so, the law’s insistence upon treating
like cases alike should lead us to reject the petitioners’
arguments that I have discussed. This insistence, the
need for evenhandedness, should prove particularly
weighty in a case involving abortion rights. That is be-
cause Americans hold strong, and differing, views about
the matter. Some Americans believe that abortion in-
volves the death of a live and innocent human being.
Others believe that the ability to choose an abortion is
“central to personal dignity and autonomy,” Casey, 505
U. S., at 851, and note that the failure to allow women to
choose an abortion involves the deaths of innocent women.
We have previously noted that we cannot try to adjudicate
who is right and who is wrong in this moral debate. But
we can do our best to interpret American constitutional
law so that it applies fairly within a Nation whose citizens
18 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
strongly hold these different points of view. That is one
reason why it is particularly important to interpret the
First Amendment so that it applies evenhandedly as
between those who disagree so strongly. For this reason
too a Constitution that allows States to insist that medical
providers tell women about the possibility of adoption
should also allow States similarly to insist that medical
providers tell women about the possibility of abortion.
D
It is particularly unfortunate that the majority, through
application of so broad and obscure a standard, see supra,
at 2–7, declines to reach remaining arguments that the
Act discriminates on the basis of viewpoint. Ante, at 6,
n. 2. The petitioners argue that it unconstitutionally
discriminates on the basis of viewpoint because it primar-
ily covers facilities with supporters, organizers, and em-
ployees who are likely to hold strong pro-life views. They
contend that the statute does not cover facilities likely to
hold neutral or pro-choice views, because it exempts facili-
ties that enroll patients in publicly funded programs that
include abortion. In doing so, they say, the statute unnec-
essarily imposes a disproportionate burden upon facilities
with pro-life views, the very facilities most likely to find
the statute’s references to abortion morally abhorrent.
Brief for Petitioners 31–37.
The problem with this argument lies in the record.
Numerous amicus briefs advance the argument. See, e.g.,
Brief for Scharpen Foundation, Inc., et al. as Amici Curiae
6–10; Brief for American Center for Law & Justice et al. as
Amici Curiae 7–13. Some add that women who use facili-
ties that are exempt from the statute’s requirements
(because they enroll patients in two California state-run
medical programs that provide abortions) may still need
the information provided by the disclosure, Brief for CATO
Institute as Amicus Curiae 15, a point the majority adopts
Cite as: 585 U. S. ____ (2018) 19
BREYER, J., dissenting
in concluding that the Act is underinclusive, ante, at 15–
16. But the key question is whether these exempt clinics
are significantly more likely than are the pro-life clinics to
tell or to have told their pregnant patients about the
existence of these programs—in the absence of any statu-
tory compulsion. If so, it may make sense—in terms of the
statute’s informational objective—to exempt them, namely
if there is no need to cover them. See FACT Act, §1(d)
(suggesting in general terms that this is so). But, if there
are not good reasons to exempt these clinics from cover-
age, i.e., if, for example, they too frequently do not tell
their patients about the availability of abortion services,
the petitioners’ claim of viewpoint discrimination becomes
much stronger.
The petitioners, however, did not develop this point in
the record below. They simply stated in their complaint
that the Act exempts “facilities which provide abortion
services, freeing them from the Act’s disclosure require-
ments, while leaving pro-life facilities subject to them.”
App. to Pet. for Cert. 104a. And in the District Court they
relied solely on the allegations of their complaint, provided
no supporting declarations, and contended that discovery
was unnecessary. Id., at 47a, 50a, 68a. The District Court
concluded that the reason for the Act’s exemptions was
that those clinics “provide the entire spectrum of services
required of the notice,” and that absent discovery, “there is
no evidence to suggest the Act burdens only” pro-life con-
duct. Id., at 68a. Similarly, the petitioners pressed the
claim in the Court of Appeals. Id., at 20a–22a. But they
did not supplement the record. Consequently, that court
reached the same conclusion. Given the absence of evi-
dence in the record before the lower courts, the “viewpoint
discrimination” claim could not justify the issuance of a
preliminary injunction.
20 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
II
The second statutory provision covers pregnancy-related
facilities that provide women with certain medical-type
services (such as obstetric ultrasounds or sonograms,
pregnancy diagnosis, counseling about pregnancy options,
or prenatal care), are not licensed as medical facilities by
the State, and do not have a licensed medical provider on
site. Cal. Health & Safety Code Ann. §123471(b)(1). The
statute says that such a facility must disclose that it is not
“licensed as a medical facility.” §123472(b). And it must
make this disclosure in a posted notice and in advertising.
Ibid.
The majority does not question that the State’s interest
(ensuring that “pregnant women in California know when
they are getting medical care from licensed professionals”)
is the type of informational interest that Zauderer encom-
passes. Ante, at 5, 17. Nor could it. In Riley, 487 U. S.
781, the Court noted that the First Amendment would
permit a requirement for “professional fundraisers to
disclose their professional status”—nearly identical to the
unlicensed disclosure at issue here. Id., at 799 and n. 11;
see also id., at 804 (Scalia, J., concurring in part and
concurring in judgment) (noting that this requirement was
not aimed at combating deception). Such informational
interests have long justified regulations in the medical
context. See, e.g., Dent, 129 U. S., at 122 (upholding medi-
cal licensing requirements that “tend to secure [a State’s
citizens] against the consequences of ignorance and inca-
pacity, as well as of deception and fraud”); Semler, 294
U. S., at 611 (upholding state dentistry regulation that
“afford[ed] protection against ignorance, incapacity and
imposition”).
Nevertheless, the majority concludes that the State’s
interest is “purely hypothetical” because unlicensed clinics
provide innocuous services that do not require a medical
license. Ante, at 17–18. To do so, it applies a searching
Cite as: 585 U. S. ____ (2018) 21
BREYER, J., dissenting
standard of review based on our precedents that deal with
speech restrictions, not disclosures. Ante, at 17 (citing,
e.g., In re R. M. J., 455 U. S., at 203; Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433
U. S. 350, 384 (1977); and Zauderer, 471 U. S., at 649(portion of opinion considering speech restrictions, not
disclosures)). This approach is incompatible with Zauderer.
See Zauderer, supra, at 651 (upholding attorney disclosure
requirements where “reasonably related to the State’s
interest”); Milavetz, 559 U. S., at 250–253 (same).
There is no basis for finding the State’s interest “hypo-
thetical.” The legislature heard that information-related
delays in qualified healthcare negatively affect women
seeking to terminate their pregnancies as well as women
carrying their pregnancies to term, with delays in quali-
fied prenatal care causing life-long health problems for
infants. Reproductive FACT Act: Hearing on Assembly B.
775 before the Senate Health Committee, 2015 Cal. Leg.
Sess. Even without such testimony, it is “self-evident”
that patients might think they are receiving qualified
medical care when they enter facilities that collect health
information, perform obstetric ultrasounds or sonograms,
diagnose pregnancy, and provide counseling about preg-
nancy options or other prenatal care. Milavetz, supra, at
251. The State’s conclusion to that effect is certainly
reasonable.
The majority also suggests that the Act applies too
broadly, namely, to all unlicensed facilities “no matter
what the facilities say on site or in their advertisements.”
Ante, at 18. But the Court has long held that a law is not
unreasonable merely because it is overinclusive. For
instance, in Semler the Court upheld as reasonable a state
law that prohibited licensed dentists from advertising that
their skills were superior to those of other dentists. 294
U. S., at 609. A dentist complained that he was, in fact,
22 NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES v. BECERRA
BREYER, J., dissenting
better than other dentists. Id., at 610. Yet the Court held
that “[i]n framing its policy, the legislature was not bound
to provide for determinations of the relative proficiency of
particular practitioners.” Id., at 612. To the contrary,
“[t]he legislature was entitled to consider the general
effects of the practices which it described, and if these
effects were injurious in facilitating unwarranted and
misleading claims, to counteract them by a general rule,
even though in particular instances there might be no
actual deception or misstatement.” Id., at 613.
Relatedly, the majority suggests that the Act is suspect
because it covers some speakers but not others. Ante, at
18–19. I agree that a law’s exemptions can reveal view-
point discrimination (although the majority does not reach
this point). “ ‘[A]n exemption from an otherwise permissi-
ble regulation of speech may represent a governmental
“attempt to give one side of a debatable public question an
advantage in expressing its views to the people.” ’ ” McCul-
len, 573 U. S., at ___ (slip op., at 15) (quoting City of Ladue
v. Gilleo, 512 U. S. 43, 51 (1994)). Such speaker-based
laws warrant heightened scrutiny “when they reflect the
Government’s preference for the substance of what the
favored speakers have to say (or aversion to what the
disfavored speakers have to say).” Turner Broadcasting
System, Inc., 512 U. S., at 658. Accordingly, where a law’s
exemptions “facilitate speech on only one side of the abor-
tion debate,” there is a “clear form of viewpoint discrimi-
nation.” McCullen, supra, at ___ (slip op., at 18).
There is no cause for such concern here. The Act does
not, on its face, distinguish between facilities that favor
pro-life and those that favor pro-choice points of view. Nor
is there any convincing evidence before us or in the courts
below that discrimination was the purpose or the effect
of the statute. Notably, California does not single out
pregnancy-related facilities for this type of disclosure require-
ment. See, e.g., Cal. Bus. & Prof. Code Ann. §2053.6 (West
Cite as: 585 U. S. ____ (2018) 23
BREYER, J., dissenting
2012) (unlicensed providers of alternative health services
must disclose that “he or she is not a licensed physician”
and “the services to be provided are not licensed by the
state”). And it is unremarkable that the State excluded
the provision of family planning and contraceptive services
as triggering conditions. Ante, at 18–19. After all, the
State was seeking to ensure that “pregnant women in
California know when they are getting medical care from
licensed professionals,” and pregnant women generally do
not need contraceptive services.
Finally, the majority concludes that the Act is overly
burdensome. Ante, at 19. I agree that “unduly burden-
some disclosure requirements might offend the First
Amendment.” Zauderer, 471 U. S., at 651. But these and
similar claims are claims that the statute could be applied
unconstitutionally, not that it is unconstitutional on its
face. Compare New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 14 (1988) (a facial overbreadth
challenge must show “from actual fact” that a “substantial
number of instances exist in which the Law cannot be
applied constitutionally”), with Chicago v. Morales, 527
U. S. 41, 74 (1999) (Scalia, J., dissenting) (an as-applied
challenge asks whether “the statute is unconstitutional as
applied to this party, in the circumstances of this case”).
And it will be open to the petitioners to make these claims
if and when the State threatens to enforce the statute in
this way. But facial relief is inappropriate here, where the
petitioners “fail” even “to describe [these] instances of
arguable overbreadth of the contested law,” Washington
State Grange v. Washington State Republican Party, 552
U. S. 442, 449–450, n. 6 (2008), where “[n]o record was
made in this respect,” and where the petitioners thus have
not shown “from actual fact” that a “substantial number of
instances exist in which the Law cannot be applied consti-
tutionally,” New York State Club Assn., supra, at 14.
For instance, the majority highlights that the statute
24 NATIONAL INSTITUTE OF FAMILY AND
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BREYER, J., dissenting
requires facilities to write their “medical license” disclaim-
ers in 13 languages. Ante, at 19. As I understand the Act,
it would require disclosure in no more than two lan-
guages—English and Spanish—in the vast majority of
California’s 58 counties. The exception is Los Angeles
County, where, given the large number of different-
language speaking groups, expression in many languages
may prove necessary to communicate the message to those
whom that message will help. Whether the requirement
of 13 different languages goes too far and is unnecessarily
burdensome in light of the need to secure the statutory
objectives is a matter that concerns Los Angeles County
alone, and it is a proper subject for a Los Angeles-based as
applied challenge in light of whatever facts a plaintiff
finds relevant. At most, such facts might show a need for
fewer languages, not invalidation of the statute.
* * *
For these reasons I would not hold the California stat-
ute unconstitutional on its face, I would not require the
District Court to issue a preliminary injunction forbidding
its enforcement, and I respectfully dissent from the major-
ity’s contrary conclusions.