Courthouse Steps: National Institute of Family and Life Advocates v. Becerra

Moderator:                        Welcome to the Federalist Society Practice Group podcast. The following podcast, hosted by the Federalist Society's Religious Liberties Practice Group, was recorded on Tuesday, March 27th, 2018, during a live Courthouse Steps Teleforum conference call, held exclusively for Federalist Society members.

Dean Reuter:                     Welcome to the Practice Group's Teleforum conference call, as today we discuss the NIFLA case, and the California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act.

                                                I'm Dean Reuter Vice President General Counsel and Director of Practice Groups here at the Federalist Society. Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast in the future, and will very likely be transcribed.

                                                We're very pleased to welcome back expert Professor Michael Moreland. He's the University Professor of Law and Religion, and Director of the Eleanor H. McMullan Center for Law, Religion and Public Policy at the Villanova University Charles Widger School of Law. He's going to give us some background on the case, and then walk us through the oral argument, but as always, we'll be looking to the audience for questions, so please have those ready for when we get to that portion of the program.

                                                With that, Professor Moreland, the floor is yours.

Prof Moreland:                 Thank you, Dean, glad to be with everyone. So this has been an important term already, for first amendment cases that the court has heard. Masterpiece Cake Shop, of course, being probably the most prominent, but also Janus, the case involving union agency fees, and then the Minnesota polling place case, and then the last and most recent one is the case we're going to talk about now, which is National Institute of Family and Life Advocates versus Becerra, which the court heard oral argument this morning.

                                                So this involves the California statute, The Reproductive Freedom Accountability, Comprehensive Care, and Transparency Act, or the Reproductive FACT Act for short, that was enacted in California, it's similar to several other state and local laws that require certain kinds of disclosures by non-profit, pro-life, crisis pregnancy centers. These centers offer alternatives to abortion, and much of the case now turns on what the state can require by way of disclosure from them.

                                                So the California statute, the way it works, just by way of background on the case, is it has two kinds of requirements depending on the type of crisis pregnancy center involved. So for those centers that are licensed to perform medical procedures, so to administer pregnancy tests, or ultrasounds or the like, those centers are required to post information about where women can obtain low cost or free abortion, and give the number for the local county social service agency where they can procure contraception or abortion. And then, there are a set of requirements for unlicensed centers, that is to say those that are not licensed to provide medical services. They provide usually counseling, maybe support for pregnancy women, diapers, formula, things like that. Those centers have to post notice that they do not offer medical services.

                                                The way the statute is written is that it exempts from the requirements of the program any for-profit medical centers, it exempts doctors in private practice, and any center that participates in the state family planning program is also exempted, but of course, these centers don't participate in the state family planning program because they object to providing certain kinds of abortifacients, and the like. And that, as we'll talk about in a minute, that turns out to be important for how the court talked about the issue this morning.

                                                Basically though, the plaintiffs in this case, these crisis pregnancy centers had a variety of kinds of arguments, but they all kind of boiled down to arguments for why this kind of requirement, on the part of California, of these centers, should be subject to strict scrutiny, the most rigorous standard of scrutiny in constitutional law. Part of their argument is that this is compelled speech, that the clinics have to state a message with which they disagree. Part of their argument is also that it is a content based regulation of speech, and then also that, given how the statute exempts some clinics but not others, that it is tantamount to a viewpoint based regulation of speech, and is targeted at pro-life crisis pregnancy centers. And of course, their argument is that the state then can't satisfy the strict scrutiny requirement.

                                                The state, for its part, follows the Ninth Circuit, which upheld these requirements in the state statute that either the state can satisfy the strict scrutiny requirement and show that it has a compelling interest, and that these requirements are narily tailored to retrieve those interests, or, and this is where the Ninth Circuit went with its argument, that these kinds of regulations are professional speech, which is a category of speech that's never been formally articulated by the U.S. Supreme Court, but some lower courts have talked about a slightly lower standard of scrutiny for speech that is regulating professions, including the medical profession, and that in a case like this these kinds of disclosure requirements are permissible because they can satisfy that slightly lower level of scrutiny.

                                                There's also some important implications, as we'll talk about when we get to the oral argument here in a moment, some important implications for other abortion related speech cases, potentially. Of course many states require that doctors performing abortions disclose information about certain kinds of risks and alternatives, and so, some of the commentary, especially the last few days, leading up to oral argument, has been about whether or not these kinds of requirements that California and more progressive states impose on crisis pregnancy centers, that those kinds of requirements are held unconstitutional, that those same kinds of arguments could be turned around in states that are more conservative and more pro-life to attack the requirements that those states impose on doctors with regard to disclosures that they have to make to patients before performing an abortion.

                                                So but that is a little bit of a background. I'm happy to elaborate on any aspect of that in response to questions, but let's turn to oral argument, which took place this morning. First up was the advocate for National Institute of Family and Life Advocates, Michael Farris, from Alliance Defending Freedom, who was right away asked a series of questions, not surprisingly, about this issue of the symmetry between the disclosures that would be imposed on pro-life pregnancy centers, but also would be imposed on either abortion clinics, or going to the point about whether or not this would have implications, potentially, for the disclosures that are required of doctors performing abortions.

                                                On that issue Michael Farris drew a distinction between requirements that a state imposes by way of what doctors must disclose as part of informed consent, which is relevant to requirements with regard to disclosures the doctors performing abortions have to provide, which is in his view are constitutionally permissible. There's a passage in Planned Parenthood versus Casey from 1992 that supports that view, that the states can have requirements with regard to the informed consent disclosures on the part of doctors performing abortions, and there's some lower circuit court cases that have come to the same conclusion. But drawing a distinction between those kinds of requirements, and then the requirements here, where it's not in the course of a medical procedure, but rather in the course of providing certain kinds of services that the clinics are arguing that they're unconstitutionally being compelled to advertise abortion, to which they have objection.

                                                And again, I'm happy to talk more about that distinction. Again that's been a lot of the commentary in the run up to the case has been about whether or not this kind of symmetry between the regulations that California's imposing here, and how that would play out for regulations that other states might impose on doctors in the course of performing abortions.

                                                So that was the sauce for the goose sauce for the gander point that Justice Breyer and others made throughout oral argument. There was also some questioning both of Michael Farris on the part of the plaintiffs in this case but also of Joshua Klein, who represented the state of California, a lot of questions about the statuary gerrymander in the case, that is to say, the exemptions that the statute creates for certain kinds of, as I mentioned, for-profit clinics or doctors in private practice, and some concern, including from Justice Kagan and Justice Alito and others, that this kind of statuary gerrymander starts to look like something approaching viewpoint discrimination on the part of the state targeting specifically pro-life pregnancy centers, for this kind of requirement, which would be a very devastating argument for the government to overcome. So that was the second, I'd say, major takeaway from oral argument, besides the symmetry between pro-life and pro-choice disclosures was this question about statuary or legislative gerrymanders, in the way in which the exemptions and the statutes have been crafted.

                                                The Solicitor General's Office, Jeffrey Wall representing the United States in the case followed the argument that they had made in their brief, which somewhat split the difference in this case. On the one hand said that the requirements of licensed pregnancy centers was unconstitutional because it was compelled speech, content based restriction on speech, but was willing to adopt a professional speech category for the unlicensed centers, that is to say that the disclosure of factual objective information on the part of the unlicensed centers was consistent with earlier cases involving commercial speech, such as Zauderer, cases like that, and so that was the argument from the Solicitor General's Office. There was some reluctance voiced by Justice Alito on that point to creating a whole new category of speech entitled to lesser protection, or I should say, giving the government more leeway to regulate in a whole new area of professional speech, or factual disclosure speech, or the like.

                                                Justice Gorsuch, in response to some of the arguments made by the state, by Joshua Klein, made a point of showing how the state has other ways of getting its message out, that it doesn't have to commandeer objecting parties to advertise for things that the state thinks are important for people to know.

                                                He also made the point, which I thought was quite persuasive, that there is a narrower approach here that the state could adopt, as it does in other kinds of commercial speech context, to combat fraud so that you can have all kinds of anti-fraud provisions. If it could be shown, for example, that some of these crisis pregnancy centers, were, as the advocates for these statutes argue, were somehow deceiving women into thinking that they were full service clinics, that would provide abortions, but in fact, they don't provide abortions. But if there is some kind of deceit or fraud that the clinics were engaging in, the state could combat that in a more targeted way. But this kind of prophylactic overly broad requirement that these centers disclose and advertise for abortion, that that kind of over breadth of requirement is something that has traditionally been strongly disfavored in the courts free speech doctrine.

                                                So again, those are just some general impressions from oral argument. I think that, as expected, it was pretty rough for the lawyer for California. There was a lot of skepticism including from some of the court's more liberal justices, that the state had overstepped its bounds here. There was less enthusiasm than maybe I might have expected for anything like the Ninth Circuit's approach of adopting a whole new category of professional speech or some other category for which the state would have a better argument, because it would be subject to lesser scrutiny.

                                                So reading the tea leaves, I'd say that it looks like a very strong possibility of a win for the plaintiffs in this case. I think the lingering question is, of course, whether or not there will be a differentiation between the requirements of the licensed clinics and the unlicensed clinics, with regard to what the requirements are, but overall I would say it was a very strong day for the plaintiffs.

                                                And with that, I'll turn it back over to you, Dean.

Dean Reuter:                     Very good. Thank you so much.

                                                Let's open the floor right away to questions. In a moment, we'll all hear an announcement that will say that the floor mode is on. After you hear that announcement, if you have a question, push the star button, and then the pound button on your telephone.

                                                Once again, if you have a question for our guest, push the star button, and then the pound button on your telephone.

                                                It looks like we've got maybe 45 minutes left. We'll start with three questions. Let's go to our first caller.

Mitchell:                              Hi, Mitchell Keeter from Los Angeles. You had said something about the rule of exemptions for those that prescribed certain contraceptions. Did the court see that as some kind of unconstitutional condition that people have to choose between certain constitutional rights? That either they could decline to prescribe the contraception, but they would forfeit their right to free speech, or they could provide the contraceptions and lose them? They basically have to choose one or the other. That was something you said you would come back to. Could you discuss a little bit what the court said about that particular exemption?

Prof Moreland:                 Sure, and I don't think you need to go as far as wading into the doctrine of unconstitutional conditions on that point. I think it's more centrally a point about how the way that the statute creates exemptions from the requirement of these disclosures itself demonstrates some viewpoint discrimination in the approach of the state. So that any clinic that participates in the state's family planning programs, which of course, includes the provision of contraception and abortifacient drugs, and even abortions, that right away then you're exempted from these disclosure requirements. That again is more evidence, and there's additional evidence beyond that, including the way in which other exemptions are crafted in the statute.

                                                I think that the plaintiffs here have a pretty strong argument events as some viewpoint as discrimination. So it was really targeted at only certain kinds of clinics, so that whatever percent is, there's actually a little back and forth, because since this is coming up on a claim for preliminary junction, there hasn't been a lot of factual development necessarily in the lower courts, but some back and forth about what percentage of the covered entities are non-profit pro-life clinics, and I think it's pretty clear that it's the overwhelming number of covered entities fall into that category.

Dean Reuter:                     Once again, if you have a question, if you'd like to join the queue, push the star button, then the pound button on your telephone. We still have three questioners in the queue. Let's take our next call.

Speaker 5:                           Yes, hi, first I wanted to thank you. I think that was a very good summary of the case, in a very neutral way, which I enjoyed a lot. I thought you really did an excellent job going over the two main issues here. I'm just going to ask that you sort of elaborate a little further on your personal thoughts, on the idea that a ruling in this case in favor of, I don't know who the respondent is, but in favor of the crisis pregnancy centers will lead to more conservative states not being able to pass laws affecting the professional speech of abortion clinics. I'm very curious on your personal thoughts there, because I think you might have some good insight.

Prof Moreland:                 All right, well I agree that it's a different case when you're talking about required informed consent disclosures in the practice of medicine. The parallel case, as long as we're going with this symmetry, or as Justice Breyer put, sauce for the goose, sauce for the gander point. The parallel case, which I think would raise issues would be some kind of pro-choice clinic that wasn't in the course of performing abortions, but instead, as just part of its presentation or as part of its advertising, had to include a pro-life message. That would be the kind of similar content base, or compelled speech kind of issue where I think the more conservative state, let's say, would run into the same kind of trouble.

                                                But narrower informed consent disclosures in the actual performance of a medical procedure, I think there will still be some flexibility for the states to be able to require certain things in that area, and I suspect that if this opinion is written in such a way as to strike down the California disclosure requirements here, that they'll try to set aside that issue that Casey itself speaks to, which is informed consent disclosures in the practice of medicine.

Speaker 5:                           One additional, just a quick hypothetical here. I don't know if these laws are still on the books, but I know there were ones where you would have to see the fetus, and they would do an ultrasound I think it was. They would show you before you decided whether or not you were going to have an abortion, they would actually show you the fetus live. I believe it was an ultrasound. I'm curious, I think those laws are still around. I live in a fairly liberal state, so we don't have it here, but I'm curious if those, you think, would be affected at all, if it's something that's still around.

Prof Moreland:                 There are some of those still around. Well, they really raise two issues. One would be that even within the context of the state's ability to have requirements with regard to informed consent disclosure in the practice of medicine, the circuit courts that have taken this issue up have all been consistent in saying that the informed consent disclosures have to be medically accurate and truthful and objective. So if the state were more, let's say went beyond the bounds of that, then that would raise some potential problems.

                                                But then, as to other requirements, of course, it then starts to also combine with the Casey, whole women's health requirement that whatever obstacles or whatever regulations the state imposes with regard to abortion, that it not oppose an undue burden, and on that, we just haven't had much development in the courts yet.

Dean Reuter:                     Once again, if you have a question for our guest, we've got about 40 minutes left, plenty of time. We've got just two questions pending. Push the star button and the pound button on your telephone.

                                                Before we go to the next caller, Professor, I was wondering if you want to say a little bit more about Justice Gorsuch's line of questioning, which I understood to be the fact that, why don't the fraud laws work here? If someone's going to make an active misrepresentation, why isn't that good enough to control this area? I'm curious if you could say more about that, but also about what the response to that was, and what the reaction from other Justices might have been, if there was any?

Prof Moreland:                 I don't recall much of a reaction from other Justices. It does get pretty powerfully to the point, from a doctrinal standpoint, about the state's ability to satisfy the narrow tailoring prong of strict scrutiny, to the extent this is a pretty clearly content based, or even viewpoint based regulation of speech or compelled speech, that that triggers some kind of strict scrutiny approach then, and that would require that the state show that it has no more, or I should say, no less restrictive way of regulating this kind of speech.

                                                Of course, the pro-choice advocates have long made arguments that these crisis pregnancy centers are engaged in deception of women and the like. But, again, that's where then the counter argument to that is, where there has been misrepresentation or outright fraud, or somehow misleading communications, the state has ample means to regulate that through state trade commissions and advertising restrictions, and other kinds of commercial speech regulations and the like. And that by definition is going to be a narrower, more targeted set of regulations of speech, rather than this mandatory advertisement for abortion on the part of the pro-life crisis pregnancy center.

                                                So again, I think that's pretty compelling, and Justice Ginsburg, just looked at the transcript here, did ask questions about whether or not there were legislative, saying there were legislative findings about false and misleading representations, has California ever brought charges against any of these places for false and misleading advertising, and to that, the advocate for California had to say, "I'm not aware that the state has", but then referred to the fact that there's also a Ninth Circuit case involving a similar ordinance in San Francisco, where apparently there was some showing of some kinds of misleading statements. So that was some of the back and forth on that issue, but I do think it's a pretty powerful point for the plaintiffs here, to show that the state has adequate means of regulating the problem that it's talking about, that is, to say the threat of misleading or inaccurate information being imparted to patients without triggering anything like the over broad disclosure requirements that the state has in a statute like this.

Dean Reuter:                     Very good. We've got three callers now, but let me just slip one more question in. You mentioned, it came up on preliminary injunction. Was it from a three judge panel, or was there an en banc Ninth Circuit panel?

Prof Moreland:                 It only came up from a three judge panel. Judge Nelson, Judge Dorothy Nelson, was the author of the opinion below. As I had mentioned, there's also a San Francisco ordinance case that I believe also was written by Judge Nelson, and so a lot of these cases involving similar kinds of ordinances, either at the local level or the handful of states that have these kinds of statutes. They're out there, it's just that this happens to be the first one, and it came up from the Ninth Circuit panel.

Dean Reuter:                     Interesting that she'd be on both panels. If you know, does the Ninth Circuit assign these cases completely randomly, or if there are related topics?

Prof Moreland:                 That, I don't know. I just don't know beyond that, how the panel assignments worked in this. The opinions are separated by at least a few months, though, as I recall.

Dean Reuter:                     Fair enough. Three questions pending, let's take another caller.

Arthur:                                 Hello, this is Arthur Hellman in Pittsburgh. First a quick comment before a question, your report of the argument on less intrusive means sounds very much like the opinion that the Chief Justice wrote in the McCullen case, where the counseling at abortion clinics, where he pointed out that the state had laws that it could have enforced against really intrusive communications or harassment, and had never used them. That was one of the reasons he gave for striking down that law.

                                                I'd like to go back to something you said earlier. You talked about the Zauderer case, which I think was about 40 years ago on attorney advertising, and for a long time was a pretty obscure precedent. But, it has come up again and again in these compelled speech, professional speech cases. I wonder if you could tell us, first a little bit more about what Zauderer actually held, and whether the court gave or Justices gave any indication that they might be clarifying or narrowing whatever it was that Zauderer did hold?

Prof Moreland:                 Thank you, Arthur, for that question. Zauderer is a 1985 case that arose in the context of attorney disclosures, I guess you'd say, about what kinds of advertising information lawyers could impart, and it involved an issue of whether or not attorneys were required to inform their clients that they would have to pay some additional costs if they lost their case, as I recall, basically.

                                                It stands for this general proposition that while commercial speech has some protected status under the first amendment, but albeit a lower level of scrutiny, that the government does have a somewhat freer hand in requiring purely factual uncontroversial information about the provision of services in a case like that.

                                                In this context, and again the Ninth Circuit, both by adopting a whole category of professional speech is entitled to a lower level of scrutiny, and then also, as I mentioned, the Solicitor General's brief, and again at oral argument today, fell back on Zauderer and said that especially with regard to the unlicensed centers, that is to say, those that don't provide medical services, that the mere requirement that they say, "We're not a medical clinic. We don't offer medical services", that that kind of factual uncontroversial information can constitutionally be required by the state, even with this lower level of scrutiny under some type of commercial or professional speech category.

                                                But again, it was interesting to see Justice Alito, in response to that, from the Solicitor General's office, saying, "Well, look, Stephen's other recent cases have been reluctant to sort of carve out whole new categories of speech with differential levels of scrutiny", and Zauderer itself, I think, it's precedential value has always been somewhat in doubt, especially as further commercial speech cases have gone on that challenge the question or raise the question about the government's ability to order disclosures of information. So I don't think they're going to range too broadly into those kinds of issues, because I think the case can be disposed of more straightforwardly on something like just content based regulation or viewpoint based regulation of speech that triggers strict scrutiny, without having to go down the road of calibrating the level of scrutiny to some other level because it's factual uncontroversial information.

Arthur:                                 I think Zauderer comes from the same period as Posadas, which is that Puerto Rico gambling commercial speech.

Prof Moreland:                 The gambling case, right.

Arthur:                                 Which was essentially overruled in the Liquor Mart case.

Prof Moreland:                 Right, right.

Arthur:                                 It would be nice if they would cabin it, if not quite overrule Zauderer, at least cabin it so the lower courts are not using it as a way of upholding regulations that would not be upheld in any other of the Supreme Court's first amendment doctrines.

Prof Moreland:                 Right, I certainly agree with that. I hasten to add here that the crisis pregnancy center plaintiffs in this case are quick to make the argument that this shouldn't be considered commercial speech at all, right, they're non-profit centers. They don't collect money from the people they're serving, and to the extent that commercial speech doctrine only applies to speech that proposes a commercial transaction, for which there's a series of cases that have held that that's the definitional form of commercial speech. The centers here are arguing that they don't fall under the commercial speech category at all.

                                                Now the Ninth Circuit, as I said, said, "Okay, fair enough. It's not commercial speech but it's professional speech", and that sort of triggers a whole set of doctrines relevant to this relatively novel category of professional speech. But I should make the point here that the centers have made the argument throughout that commercial speech doctrine doesn't apply here at all because there's no commercial transaction.

Arthur:                                 Did the Justices, any of the Justices address that point?

Prof Moreland:                 It didn't seem to attract much interest. Again, it was something the Ninth Circuit made a point of, it's obviously something the state has made a point of throughout, and some of the Amica briefs supporting the state, but the idea that somehow that this should tumble into commercial speech did not, from what I could see from the transcript, did not get much traction.

Arthur:                                 And one final question, did anyone else pick up on Justice Alito's reminder that Stephens and several other cases have said, pretty emphatically, we're not in the business of creating any more exceptions through the general rule against content based discrimination.

Prof Moreland:                 Right, from what I can see in the transcript no one really followed up on that, but it's a pretty powerful point. I don't know that there's much to say in response to it, unless you're going to revisit all those, which I don't see much of an appetite for from anyone on the court.

Arthur:                                 But the lower courts have not read that for all it might be worth, as this case illustrates.

Prof Moreland:                 Right, right.

Arthur:                                 Thank you.

Prof Moreland:                 Right.

Dean Reuter:                     We've got three questions pending now. Push the star button, then the pound button if you have a question. Let's take another call.

Thomas:                               Hi there, Thomas [Soof 00:31:22]. [inaudible 00:31:24] I'm curious, Professor, you had said this in answers to a couple prior questions in the procedural posture of the case. I know one of the defendants raised the ripeness issue in the brief, but I'm kind of curious, this seems like a pretty typical pre-enforcement challenge, so how seriously do you think the court is going to take that argument?

Prof Moreland:                 You know, it's a hard question. You're right, there was a separate brief from the county administrator or executive in San Diego who basically, I gather, made the argument, "Well, look, we're not enforcing this against the crisis pregnancy centers who won't comply, so therefore, there's no ripeness." The Ninth Circuit didn't seem to have much time for that, and it didn't come up much today, didn't come up at all. That precise point didn't come up much at all.

                                                What did come up, with regard to procedural posture was some back and forth about whether or not there needed to be more fact finding, given the speed and the level at which this was brought up without full airing of the issues below in the record. So that, for example, on the viewpoint discrimination point, if it turns out that, picking a number, 99% of the covered entities are in fact pro-life pregnancy centers, well that starts to make the viewpoint based discrimination argument pretty compelling, but it just hasn't been developed on the facts that much.

                                                So there was a little bit about whether the facial versus as applied issue should be more fully aired, but then at one point, Justice Kennedy said something somewhat cryptically, about well, "Well, what, are we going to remand just to find out what a billboard is", or something like that. I guess reading the transcript I suspect we won't get a remand. I suspect that there's enough here to show that, just in terms of a facial challenge, that this is a content based restriction or even viewpoint based restriction on speech, and so it will fall as a result of that. There was a little bit of back and forth about some of these issues about, how much do we actually know given the lack of a developed record.

Dean Reuter:                     We're working our way through these questions, Professor. We've got two pending. If you'd like to join the queue push the star button, then the pound button on your telephone. Let's take another call.

                                                Go ahead caller from area code 972.

                                                Caller from 972, you might be on mute. You might have muted your own telephone. We can't hear you.

Speaker 8:                           You got me, I sure did mute it. I apologize for that.

                                                Thanks for your time.

                                                I was really just calling to see how likely you think it is that the court is going to have to really clean up this content neutrality analysis, particularly when determining when strict scrutiny will apply. I mean it seems pretty clear. I think the Ninth Circuit even said that this was content based, but didn't apply strict scrutiny, nonetheless, which to me, seems inconsistent with the read, and what the court will have to do to reconcile that difference there. Thank you.

Prof Moreland:                 Right, well, again, I suspect that it will, if I had to guess right now, I think it will be fairly straightforward, as far as that goes, that read, as you said, is pretty clear about what content based versus content neutral means, and it does so in a pretty robust way. I think that then triggers strict scrutiny. So I don't know that there's going to be much of an appetite for making it more complicated than that, by either, at one end, either saying that the state can satisfy strict scrutiny here, which seems implausible, or on the others hand, somehow coming up with some content based, but nonetheless, lower level of scrutiny because it's some kind of professional speech or commercial speech subject to reduced scrutiny, or something like that.

                                                So again, I think, either from a content based standpoint, or as I keep saying, even from a viewpoint based standpoint. Now from McCullen versus Coakley, which was the last, so to speak, abortion speech case that the court heard, there was some suggestion, especially in Justice Alito's concurrence, that that too constituted viewpoint discrimination, but if you don't have to get there, you can kick it out easily enough on content based regulation, and that's fine too. But again, I suspect that there won't be much of an appetite, especially if the court wants to, whoever has the opinion wants to write something that will garner a consensus of the court, I suspect there won't be much appetite for making this unduly complicated with differential levels of scrutiny or the like.

Speaker 8:                           Thank you.

Dean Reuter:                     Thank you, caller.

                                                On the topic of content based and viewpoint based, you mentioned in your opening remarks, Professor, that Justice Kagan chimed in on viewpoint based, and she seemed concerned there. I wonder if you're able to say anything more about that.

Prof Moreland:                 Well, at one point she had a question for Joshua Klein from California about, well, the statute you could imagine it a couple of different kinds of ways. One would be where the state is enacting a statute like this, with the interest of communicating options to poor women who come to these kinds of clinics. But then the other would be one that specifically targets crisis pregnancy centers for this kind of disclosure requirement. Of course, the state's advocate wanted to grab on to the first of those alternatives and say, yes, it's this kind of disclosure, kind of requirement that is at issue in a case like this. And that's where something like Zauderer, this kind of requirement of factual, unobjectionable information is something where the state has a much stronger argument, but anything that smacks of content or viewpoint based regulation, of course, is going to be a much tougher argument for the government to make.

                                                On that score, other than some indication from some of the more liberal Justices, that the state had these kinds of interests in mind. Other than that though, from a few questions that they asked, I think in general it was a very rough time for the government's argument here.

Dean Reuter:                     We do have 20 minutes or so left, just one caller question pending. If you'd like to ask a question, now is the time to push the star button, then the pound button on your telephone.

                                                Let's check in with another caller.

Steven:                                Good afternoon. Steven Casey. I'm calling from Austin. Didn't get a chance to go there, I wish I could have, but I had the opportunity to be counsel in the Austin case, and I wanted to see if at orals at all came up, about the strategy that the pro-abortion groups had on this, is moving their legislative issues and initiatives from the city level to the state level, because what had been proposed in the past, and we found in discovery in the Austin case, was they were obviously gerrymandering it to only apply to the pregnancy centers, but they wanted to go to the state level eventually, because they wanted to use the state's ability to regulate the medical profession, and they saw this as the opposite of the women's right to know.

                                                Did that ever come out, that pitching it as the flip side of the woman's right to know? Because it seems to me that that arises out of the torte of medical malpractice, versus this has always been, should be more along the lines of anti-fraud legislation, which all ready exists to some degree, and which would counteract any type of need to regulate it on the side of the state.

Prof Moreland:                 Right, I think what you say there is pretty accurate. I do think that especially the argument from Michael Farris, for example, today, when he was pushed on this point about symmetry with regard to the messages between either pro-choice or pro-life perspective, and the requirements in as Justice Breyer put at one point, you got pro-choice states, you got pro-life states, and they each impose different kinds of requirements. But again, they wanted to keep Michael Farris and the advocates on his side have kept coming back to the point that it's different, though, if you have something in the informed consent area when you're performing a medical procedure, versus when you're merely offering counseling and other kinds of things like that.

                                                So I do think that that's the distinction that they've drawn, and as I mentioned earlier, I'd be surprised if the court, in an opinion resolving this case, wants to go outside the bounds of it and start getting into others, and revisiting the language in Casey about informed consent requirements. There are cases in the lower courts about that, and there may be a Supreme Court case down the road on those kinds of requirements, but I think for now, though, they'll keep to the issue squarely presented.

Dean Reuter:                     We don't have any questions pending. Let me make another call for questions. If you have a question, ring in now, push the star button, and then the pound button on your telephone.

                                                While we're waiting to see if anybody rings in, let me ask another question.

                                                You mentioned a couple times, in your words, I think, paraphrasing at least, what a difficult time the state of California had in the case today. Was that a surprise to you? And part two of that question, was anything else amount to a surprise? Were there any curve balls in the oral argument today?

Prof Moreland:                 I think that a lot of people looking at this case thought that it was going to be a hard case for the government. That the court has been very strongly pro free speech in a range of areas over the last many years, and that it was going to be difficult especially with regard to the licensed facility disclosure for abortion services. On that issue, especially, the state was going to have a very tough argument, especially as I said earlier, given what I think is an understandable reluctance to start creating new categories of speech and reduced levels of scrutiny for new categories of speech, where I think the court has, over and over again, the last few years rejected in cases involving violent video games and other context, has rejected the opportunity to start going down those roads. So I think it was expected that it was going to be a challenging case for the government.

                                                In terms of other surprises, maybe this is the dog that didn't bark, kind of point. Given where the Ninth Circuit came out, and given that the best argument for the state, on the flip side of what I was just saying, is something like a professional speech, Zauderer type disclosure requirement. I was somewhat expecting the more liberal Justices, maybe, to try to push the advocates for the plaintiffs around on that kind of point, but they didn't seem too eager to do that either, and that would also follow with what the Ninth Circuit had done on the case.

                                                I didn't see much of that, and so it does kind of leave you with a question of, on what basis could the state possibly win, given that one of the more plausible arguments they had, which was something like a reduced level of scrutiny, didn't seem to get much traction.

Dean Reuter:                     That's fascinating.

                                                Well, it looks like we've already had our final question, so let me give me you a chance, Professor Moreland, to wrap up, express any final thoughts. And as you do that, you've sort of tipped your hand at where you think this case might be going, but we haven't discussed when. Does it feel like this is going to go to the final day of the term before we get an opinion on a case like this? Is it one of those sorts of cases everybody will be watching at the final moment of the term?

Prof Moreland:                 Well, we're already pretty late so it could well go that late, even if it isn't especially controversial, even if it turns out to be 7-2, or 9-nothing or something like that. I do expect that at least as to the licensed facility disclosure requirement, that the state is going to lose, and as I said before, if I had to guess, it would be on a pretty straightforward viewpoint or content based restriction.

                                                The unlicensed requirement, I think is a little more in doubt, although the court didn't seem to be too interested either in rehabilitating the state's argument on that. There were a few points made along the way about they would have to disclose alongside, in similar sized font and type that they were not a medical facility, along with what they were saying about being a pro-life center. There seemed to be some discomfort about that as well.

                                                So I expect it to be, again, we can always be surprised, but I think it will be pretty straight forward. How long it'll take for it to be issued is anyone's guess. I'd say the one wild card, potentially, would be something like a remand for further fact finding, but often times in these facial challenges, if there's enough infirmity in the statute as it is, then the court isn't going to mess around much with remanding and waiting for the case to come back up, given where the legal arguments are already.

Dean Reuter:                     Terrific. Well, my thanks to Professor Mike Moreland. We certainly appreciate your recurring appearance here, and might well invite you back when we have a decision in this case, because I'm confident will have a Teleforum conference call analyzing the decision, unless it is something proforma, a remand or something like that.

                                                I also want to thank our guests for dialing in today, and for their questions. A reminder to our audience to check the Federal Society's website and monitor your emails for announcement about upcoming Teleforum conference calls, but until our next call. We are adjourned.

Recording:                          Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast and other Federal Society multi-media, please visit the Federal Society's website at FedSoc.org/multimedia.