Courthouse Steps: NIFLA v. Becerra Decided

Religious Liberties and Free Speech & Election Law Practice Groups Teleforum

Listen & Download

NIFLA is a religiously-affiliated pro-life pregnancy clinic that sought to enjoin the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act on constitutional grounds. The Act requires licensed clinics to provide information on publicly funded reproductive health services, including contraception and abortion, and unlicensed clinics to inform patients of their license status. NIFLA claims the Act violates its First Amendment rights to free speech and the free exercise of religion. The District Court denied an injunction, and the Ninth Circuit affirmed the lower court’s decision. On June 26, the Court ruled in a 5-4 decision that NIFLA is likely to succeed on their claim that the FACT Act violates the First Amendment.


Prof. Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law



Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

Operator:                                 Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties and Free Speech & Election Law Practice Groups, was recorded on Tuesday, June 26, 2018 during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.       


Mr. Dean Reuter:                    Welcome to a special Courthouse Steps edition of the practice groups teleforum conference call as today we discuss the decision in the First Amendment NIFLA case handed down by the U.S. Supreme Court this morning. 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 likely be transcribed.


                                                We're very pleased to welcome returned guest and returned guest on this case, uh, alone, uh, Professor Michael Moreland. Uh, he's the University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at the Villanova University Charles Widger School of Law. He's going to give us opening remarks including some background on the case to orient our audience about 15 to 20 minutes or so. Uh, but then as always, we'll be looking to you for questions, so please have those in mind for when we get to that portion of the program.


                                                With that, uh, Professor Moreland, the floor is yours.


Prof. Michael P. Moreland:    Thank you, Dean. Always, uh, good to participate in these calls. So I'm going to talk about NIFLA v. Becerra, which is the latest edition of a, uh, series of First Amendment cases that the Court, uh, has decided this term. There's one more to go tomorrow presumably, Janus, the union agency fee case, and we've already of course already had the Minnesota polling place, uh, case and Masterpiece Cakeshop, and this is, uh, yet another First Amendment issue.


                                                So the, uh, issue in NIFLA was a California statute called the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act, that, uh, is similar to several other state and local laws that require disclosures by pro-life, non-profit crisis pregnancy centers, uh, with regard to, uh, messages that they have to impart.


                                                And the California statute actually had two kinds of requirements depending on the type of crisis pregnancy center at issue. So first as to licensed centers—those that, uh, performed medical procedures such as, uh, pregnancy tests and ultrasounds—uh, those centers that were licensed to perform medical procedures had to post information about where women could obtain an abortion, uh, including, uh, giving information about the county social service agency, how it could be contacted, and the availability of low-cost or free abortion. And so that's the licensed requirement.


                                                The second requirement was as to unlicensed centers—that is say centers that don’t provide any medical services. They, uh, offer counseling or financial help, uh, diapers, formula, things like that for pregnant women. And those centers had to post a notice that they do not offer medical services, uh, and that they, uh, are not licensed to offer medical services. And so, that's the unlicensed requirement.


                                                And so, uh, this requirement on the part of, uh, the California statute had been upheld by the Ninth Circuit, uh, on the grounds that it was a regulation of professional speech that was entitled to a lower level of scrutiny that California could satisfy in this case, and therefore, it was constitutionally permissible.


                                                But today, this morning, in an opinion by Justice Thomas, the Supreme Court, uh, reversed the Ninth Circuit. And the opinion by Justice Thomas instead holds that this is a content-based restriction on speech; therefore, it is subject to strict scrutiny. That is to say the State would have to show that it has a compelling interest and that the restriction on speech is narrowly tailored to achieve that interest, which, uh, in Justice Thomas' view, the State could not satisfy.


                                                Interestingly, this case follows in some ways on Justice Thomas' decision, uh, a couple terms ago in tow-, in the Town of Gilbert case, which was a signage, uh, regulation case about, uh, what kinds of signs were permissible and for what length of time and what size they had to be and so forth. And, uh, to that extent it follows on that because of Justice Thomas' very strong view about the framework applicable to content-based restrictions on speech. And that it's a very -- I'd say it's a very broad set of cases that fall, uh, fall into that. And so, because this is a content-based restriction on speech as to the licensed centers at least, that they are required to impart a message, uh, with which they disagree, uh—that is to say the availability of abortion services—this is a content-based restriction and the State, uh, can't satisfy that.


                                                He also, uh, doesn't have much time for the view that the Court should create a new category of professional speech. He mentioned some earlier precedents that had allowed for government, um, requirements with regard to, uh, factual objective information in the context of a commercial transaction. But because these, of course, are non-commercial, non-profit entities, uh, they're not, uh, subject to that.  Uh, and also that, uh, this is rather than being, uh, factual and non-controversial, uh, of course he says requiring those who are opposed to abortion to advertise the ability of it is anything other than that.


                                                Then interestingly with the -- with regard to the unlicensed regulation, that is to say the requirement that, uh, the centers that don't perform medical procedures, uh, nonetheless, uh, have to disclose that they are not available for, uh, for, for medical procedures. On that issue, Justice Thomas, uh, in his majority opinion for the Court says, uh, says a couple things. One is that, uh, California has failed to show that this requirement is necessary to combat the State's reported interest in, uh, protecting women against fraud and abuse and, and, and the like.


                                                As he points out, there other mechanisms that the State has available. It can, of course, criminally punish people who hold themselves out as practicing medicine without a license. Uh, it can also, of course, uh, punish, uh, fraud-, fraudulent or misleading statements. But as he says in his part of the opinion about the unlicensed centers, he says, "California has not demonstrated any justification for the unlicensed notice that is more than 'purely hypothetical.'" Uh, and that, "[i]ndeed, California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals."


                                                And so, I think one of the themes that's, that is, uh, pervasive in Justice Thomas' opinion, both with respect to the unlicensed centers but also the licensed centers was the breadth of what California was requiring here. Rather than showing that there were particular documented instances of misleading pregnant women or fraudulent statements that were made by these centers, and in the absence of anything about that, that this kind of broad requirement of advertising the availability of abortion services, putting up notices that you are not a medically licensed facility, that, uh, that's far too broad a regulation of speech than the First Amendment can allow. Uh, so I'm happy to obviously talk about more details of Justice Thomas' opinion, certain sort of doctrinal twists and turns in it, but that's a general overview of it.


                                                There're a couple other opinions in the case. One is a concurrence by Justice Kennedy, uh, joined by, uh, Justice Alito, the Chief Justice, and Justice Gorsuch. So all the justices in the majority except, uh, for Justice Thomas. And Justice Kennedy in his opinion, uh, concurring with, with the Court, uh, points out also the danger of viewpoint discrimination. So obviously content-based discrimination in First Amendment law is subject to strict scrutiny. But even more troublesome is targeted viewpoint, uh, regulation on the part of the government. And Justice Kennedy entertains the view in his concurrence that this, uh, also is -- runs afoul of that prohibition on, on viewpoint regulation.


                                                Uh, and so that's a -- that's another kind of interesting aspect of the case. But again, that was not the majority holding.


                                                And then, there's a dissent from the far more liberal members of the Court, written by Justice Breyer, joined by Justice Kagan, Justice Sotomayor, and Justice Ginsburg. And Justice Breyer's opinion, generally, I would say is much more deferential to the government's ability to regulate disclosures with regard to health and safety. And so he talks about economic regulation more generally. He invokes Lochner at one point, in fact. And, uh, broadly has a view that because this is required disclosures in the context of health and safety that the States have a freer hand, uh, to, uh, require these kinds of, uh, these kinds of disclosures, uh, on the part of the, uh, crisis pregnancy centers.


                                                One other interesting, uh, difference between the majority and the dissent and has implications longer term for other cases is the question of well, what about required disclosures that many states have with regard to doctors who are, uh, performing abortions with regard to information, uh, that they are, uh, required to share as part of informed consent. And Justice Thomas' opinion at page 11 of the slip opinion goes to some length to point out that this is -- that those kinds of informed-consent requirements are different than what, uh, the California statute requires here. That those informed-consent requirements are pertinent to the States ability to regulate the practice of medicine and that there the States do have as part of the, uh, legal framework for informed consent some leeway with regard to what they can require.


                                                But that of course, in this, in this case, uh, especially as to the unlicensed centers, but even as to the licensed centers, there aren't -- it's not always the case that there are medical procedures being performed, uh, that many of the, the counseling and so forth that goes on in these crisis pregnancy centers doesn't involve medical procedures and so isn't, uh, relevant to the informed-consent context.


                                                Justice Breyer in dissent, uh, thinks that -- he says at one point this distinction doesn't make any moral or legal difference, that is to say between informed-consent disclosures and what the California statute required in this case. So he could reject that distinction. But again, in Justice Thomas' majority opinion, he upholds it.


                                                And so, that's why one of the questions coming into this case -- there had been some concern or questions that were raised about well, what about the more conservative pro-life states that have, uh, informed-consent disclosures. Are they at risk, uh, as a result of, uh, what the plaintiffs in Becerra are seeking, and given how Justice Thomas frames the issue in the majority opinion, he distinguishes away those. And so, so at least as a matter of the First Amendment doctrine applicable to that, the point that was made in Casey back in 1992 that the State can require factual, uh, disclosure on the part of abortion providers, that part is, uh, is still good law.


                                                Uh, so I know that's a very quick, uh, overview of a lot of, uh, complicated First Amendment doctrine that is in NIFLA v. Becerra, uh, and the three opinions in it, but, uh, I think it's probably a good time to turn it over for questions if anyone wants to talk about any of these issues in more detail.


Mr. Dean Reuter:                    Very good. Thank you, Professor Moreland. Uh, we'll begin to open the floor here. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question for our guest expert, push the star button and then the pound button on your telephone.


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


                                                A quick commercial announcement while we wait to see who's, uh, got a question. Our next teleforum conference call will be later today at 3 pm Eastern Time. We'll be talking about the other Supreme Court case that came down today, uh, the travel moratorium case that, uh, Hawaii v. Trump. Uh, that again is 3 o'clock today Eastern Time at this same number.


                                                Today, of course, right now we are speaking with Professor Moreland about the NIFLA case. Uh, push the star button and then the pound button on your phone if you have a question. We begin with three questions so let's take our first call of the day.


Caller 1:                                  Hello?


Mr. Dean Reuter:                    Yes, caller, we can here you.


Caller 1:                                  Hi, at the oral argument it seems as if it might be, uh, perhaps more than five justices voting to strike down, uh, the law and, of course, the opinions focus a lot on the informed-consent question, which I know was, uh, one of the dissenting justices biggest concern that, you know, the goose or the gander, uh, theory. And I'm wondering did -- was there -- are you surprised that the nature of the majority opinion wasn't such that, um, that it cou-, that it could've been more justices brought along, uh, without regard to the informed consent and that could've been a concurrence instead of the majority opinion? Or do you think Justice Thomas really wanted, uh, to draw that distinction, even at the risk of, uh, losing perhaps, uh, another justice's vote?


Prof. Michael P. Moreland:    That's a great question. I, I think on the preview call or the post-oral argument call in this case, I had thought that there would be more than five votes to strike down, uh, California's law given how the oral argument had gone. Uh, and in some ways, I mean, it's quite different kind of regulation, although still in the abortion context, you'll recall that McCullen v. Coakley, which was an abortion clinic buffer-zone case from a few years ago was decided 9-0, albeit it on different grounds among different opinions.


                                                Uh, so I had a, I had a just general sense going in that there would, there would be more votes to strike down the California law, especially with respect to the licensed, uh, facility requirement—that is to say advertising for abortion services as a part of the requirement at those centers. Um, and, you know, who knows how the -- how, you know, what, what goes on in the, in the kitchen as they, as they issue these opinions. I do suspect you're on to something there, though, that may be part of the reason that say Justice Kagan, who seemed at points at oral argument, to be pretty hostile to California's position wasn't willing to sign on, uh, to Justice Thomas' opinion is the fact that it is so expressly, uh, distinguishes the informed-consent disclosure requirement.


                                                I also think that, uh, picking up a thread that I mentioned in my opening remarks that Justices Kagan and Breyer had earlier in the Town of Gilbert case voiced some concern about what in their view was the kind of rigid formalism of the content-based framework that Justice Thomas offered there. Of course, I happen to agree with Justice Thomas' opinion in Town of Gilbert and agree with the opinion here, but they were concerned there that by—and again, in their, in their formulation, the kind of rigid formalism of the content-based framework in Town of Gilbert, which gets worked out here as well—that that jeopardizes a lot of, uh, what in their view should be permissible government regulation of commercial speech, of commercial transactions, of professional speech like, uh, they, uh -- was one of the arguments here. Uh,, and so in that respect, uh, even Justice, Justices Breyer and Kagan, who I thought might be brought around on this case, I could see why doctrinally there weren't willing to sign on to, um, the way in which Justice Thomas approached this.


                                                But, you know, in, in the end it only takes five to win and, uh, and the, and the opinion is I think a very strong one and a very good free speech opinion. But I do, notwithstanding some hope that maybe more than five would sign onto it, I do kind of see the reasons why, um, even the more moderate, uh, justices, uh, on the left of the Court, like Justices Breyer and Kagan, weren't in the end willing to come along.


Mr. Dean Reuter:                    Once again, if you have a question, push the star button and then the pound button on your telephone. We've got two questions in the queue right now. Let me ask just a quick follow-up question, uh, to that question and that is did you see anything in the, the language of the dissent that would indicate it was written in a way to attract the fourth vote, um?


Prof. Michael P. Moreland:    The fourth vote for the dissent?


Mr. Dean Reuter:                    Yes.


Prof. Michael P. Moreland:    Um, I mean I -- you know, I guess to some extent, you know, there is a reference in Justice Breyer's dissent to the, uh, you know, obvious fact that, that this is about abortion, um, and that, uh, that, you know, he obviously was the author also of, of cases like Whole Women's Health. And so, in that respect, I think, um, there's a general kind of pro-choice orientation, um, and, and, and favoring of, of a kind of, um, ability or what should I say, kind of a constitutional right to abortion and therefore, that, um, there should be, you know, may-, maybe that should also have some inflection with regard to a First Amendment analysis.


                                                I also think, though, that, um, the fact that there's this reference in the opinion to, for example, Lochner. I do think that it's a concern on the part of maybe the liberal justices, uh, as Justice Breyer chose to write the opinion about a kind of, I don't know, I guess a kind of libertarianism that they think is afoot here in the, uh, in the free-speech realm, which, which they are uncomfortable with. Um, but again, that's, you know, some speculation on my part.


Mr. Dean Reuter:                    Once again, push the star button and the pound button on your telephone if you have a question. Let's take another call.


Mr. Kenneth Klukowski:        Yes, hello. This is Kenneth Klukowski. Uh, quick question: I had filed an amicus brief for, uh, Professor Richard Epstein and a number of other, uh, constitutional professors regarding viewpoint discrimination. Uh, what significance, if any, do you attach to Justice Thomas not going there with the other four justices on the viewpoint history?


Prof. Michael P. Moreland:    Well, and uh, I should add by way of full disclosure that I was also a signatory to that, to that brief about, uh, about viewpoint discrimination, uh, in this case.


                                                So, uh, if you want to know something --


Mr. Kenneth Klukowski:        -- I, I did not want to be the one to highlight that, but I'm glad you did. Thank you.


Prof. Michael P. Moreland:    Right, right, and along with several others. Um, so I, I -- the viewpoint discrimination point is an interesting one in, in lots of ways. Um, as I was, uh, pointing out to someone on Twitter just a little bit ago, interestingly in McCullen v. Coakley—which again, is in quite different kind of regulation to be sure, but in the analogous are of abortion, uh, regulation and speech—Justice Alito was the lone opinion in that case to raise a concern about viewpoint discrimination, and here you have four justices in concurrence raising the concern about, uh, viewpoint regulation, but not Justice Thomas in his majority opinion.


                                                In fact, the brief that -- that amicus brief is cited in the dissent by Justice Breyer, uh, to make this point about viewpoint discrimination and in kind of an interesting way. He says, well, look, you know, maybe this is a potential concern—and obviously then, um, uh, he presumably would, would be brought around to, to view the statute as much more pro-, problematic. But he also makes a point that he doesn't think the record was developed, uh, well enough on that point, that it wasn't adequately argued below and therefore, uh, he rejects the viewpoint-based, uh, restriction.


                                                I do think, though, that Justice Kennedy, albeit it in a relatively short concurrence, is right that, uh, there is some evidence from the legislative record. Also, the, the kind of the gerrymandering with regard to how, uh, the clinics are regulated. That for instance, um, uh, clinics that receive, um, certain kinds of funding are exempt from the requirement, that the State's own clinics are exempt from the requirement. And so, in a way, uh, the vast percentage of, you know, very, very, very high percentage of the clinics subject to this regulation were precisely these pro-life crisis pregnancy centers that refused to provide abortion and other kinds of related services.


                                                And so, in that regard, I do think that, uh, both that brief, uh, and also Justice Kennedy had a, had a good argument that there was at least a plausible way of getting to the conclusion that this was viewpoint restriction. But, you know, from a doctrinal perspective, uh, I suppose it's true—in defense of Justice Thomas' approach to the case in the majority—that it's easier to show content-based regulation if you're a free-speech plaintiff and failure to satisfy strict scrutiny and just call it a day rather than go through the burden, uh, of showing, uh viewpoint restriction, which means, at least in some instances across a range of cases, might be much more difficult to establish.


Mr. Dean Reuter:                    Once again, if you have a question, push the star button and the pound button on your phone. We've got just one caller question remaining. Let's check in with that call.


Mr. Brian Hawkins [sp]:         Hello, this is Brian Hawkins. Um, looking at the opinion there is some -- seem to be some important wins on the professional speech side. Did you see any implications for, um, broader commercial speech protections or any implications more broadly for, um, commercial speech in Justice Thomas' opinion?


Prof. Michael P. Moreland:    I don't, I don't think so, and at least in a couple ways. One is that, um, this continues a, uh…so that as I mentioned, the Ninth Circuit had resolved this case on commercial -- uh, sorry, professional speech grounds, and had kind of created this whole new category of professional speech, and, and then, uh, said it was subject to a lower level of scrutiny. And it's clear that in this case, uh, like in some other recent cases—for instance the Violent Video Games case—the Court is not, uh, willing to be in the business of creating new categories of speech subject to lower scrutiny. That instead the -- uh again to go back to the earlier point, the content based restriction on speech triggering strict-scrutiny framework is, um, is the, the -- that's, that framework is very strongly in place in this opinion and in recent opinions like the Violent Video Game case, for in-, for example.


                                                And so, in, in one respect there's I think a refusal to kind of chop up in any new categories of speech, or even as Justice Breyer's dissent would suggest, a kind of maybe general head of health and safety recognition of speech by the State as getting some, uh, increased level of deference. So they're not willing to go down that road.


                                                And more narrowly on commercial and, and professional speech, the Court, uh, I would say it offers a fairly narrow interpretation of precedence like Zauderer, which was an attorney advertising objective, factual, non-controversial requirement by the, uh, Ohio Bar. Uh, and the Court in 1985 had held that that was constitutionally permissible.


                                                But here, the Court very clearly really wants to push against Zauderer being over read to give the government an ability to regulate, um, more broadly either in the professional realm or with regard to, uh, commercial speech. And, of course, that then in the dissent is a point that Justice Breyer makes wanting to turn this into a case where Zauderer is a much more, uh, much more powerful precedent.


                                                And I, I should add, I mean, this is not surprising coming from Justice Thomas, especially, because, uh, even going back to, uh, some of the kind of pure commercial speech cases, which of course this in the technical sense is not because it was non-profit, uh, um, pregnancy centers, not, not -- they're not offering, you know, commercial services. But, uh, in the commercial-speech context, uh, he has, uh, tended to push against the kind of intermediate level of scrutiny regime that has been the sort of Central Hudson framework, uh, in recent cases, and I think really wants to push these cases more strongly in the direction of, of strict scrutiny. And so, in that respect it's not surprising that the decision, uh, isn't willing to kind of go on with, with much, uh, with much in the commercial or professional speech area.


Mr. Dean Reuter:                    We do have another question pending after which our lines will be wide open. Push the star button, then the pound button on your telephone if you'd like to ask a question. Let's take another call.


Mr. Craig Alexander:              Uh, good morning, Professor. Craig Alexander out from California. Thanks -- thank you for your, uh, time today. Uh, if I can pose two questions. The first one is, uh, this decision sends it back down to the, uh, District Court. Uh, if I could ask your prognostication of what you think will be going on now. And secondly, uh, Justice Kennedy's concurrence -- concurring opinion was, uh, a pleasant surprise, I guess, and, uh, again your prognostication. Obviously I think he's trying to send a message about, you know, this issue in general. But, uh, we have AB-2943 working its way through the Legislature: the ban on quote, unquote "restorative therapy" and the, uh, controversy regarding that, uh, free-speech issue. Uh, I'd be, uh, very curious to hear your thoughts about that. Thank you.


Prof. Michael P. Moreland:    Well, as to further proceedings, uh, so this came up on a, um, claim for preliminary injunction in the District Court, which was denied and then, uh, that denial was, uh, was then upheld by the Ninth Circuit. So, presumably, now that'll go back to the District Court, um, and, um, if I had to prognosticate on it, I would expect that the District Court will grant the preliminary injunction to the, uh, to the pro-life, uh, pregnancy centers, uh, based on the Court's, uh, opinion here.


                                                Um, and interestingly, um, as I mentioned there are a lot of these laws, um—well, maybe not a lot—there's a handful of these laws in, in states and local governments, and for the most part they've been struck down, actually, in, in the lower courts either in the district courts or the circuit courts. But, um, in California with regard to the Ninth Circuit's decision here and also in a case involving a San Francisco ordinance, they had been upheld. But given, again, I think the strength of the opinion here and, and the breadth of the opinion here, I think those, uh -- any such, uh, regulations now will be subject to preliminary enjoined, uh, by the district courts.


                                                Um, I agree. I mean, Justice Kennedy's, uh, concurrence was, uh, as you say a pleasant surprise. It has some, uh, very powerful lines about, uh, controlling the messages and the, the need for vigilance against, uh, government authoritarianism with respect to, um, uh, messages that one expresses.


                                                As to the, uh, therapy issue, yeah, I haven't followed that issue that much. Uh, you know, again to the extent that, uh, this case is about regulation that is more or less outside the context of medical procedures—granted the license requirement—goes to, uh, clinics that are engaged in some medical procedures. Um, but given that the Court is very much at pains in this case to distinguish what the State is requiring here from anything states might do with regard to, um, informed consent or the practice of medicine or other kinds of, uh, regulation of professional conduct. They make -- also make a point in the majority opinion of distinguishing, uh, professional conduct, which of course happens all the time, either through statutes or through tort liability, for example.


                                                Um, and so I think that any, you know, further action in this area will have to kind of grapple with which side of that line does a state regulation fall on? Is it regulation of professional conduct and, um, informed consent where the State does still have, a, a, a great deal of leeway with regard to what it can require? Or does it fall more on the line here of a -- in NIFLA of a content-based restriction, that is really in the courts, you (sic) only kind of incidentally touching on professional, uh, speech or medical practice?


Mr. Dean Reuter:                    We are out of questions for the moment. Let me make another call for questions. If you'd like to ask, uh, our guest and expert, Professor Michael Moreland, a question, now's the time. Push the star button and the pound button on your telephone. Uh, let me ask a question. I've been hearing this as you might want to dodge this question, but I'll ask it while we wait to see if others want to ring in.


                                                Uh, we've mentioned a couple time, uh, Justice Kennedy's, um, uh, opinion. He, he almost seems to be speaking in fairly grand terms, maybe speaking to the ages. Some people, uh, in, in, in certain circles are, are seeing this as a possible indication of a retirement impending. Uh, have you, have you been hearing speculation like that? Do you have any thoughts on that? And as I say, feel free to dodge that question.


Prof. Michael P. Moreland:    Well, we probably follow some of the same people on Twitter and, and the, um, you know, and the blog sphere and the like. Uh, people have been making that point both about the concurrence in, uh, NIFLA that we've been talking about here and also his concurrence in the travel ban case, which you'll have a call on, uh, in a lil-, in a little bit. Um, and I mean, I can just add on that, I mean I do think that -- look, he's, he's, he's been a very strong defender of free speech, um, for his entire career on the Court. Uh, and there're even cases like IMS v. Sorrell that touch somewhat on the issues raised in NIFLA with regard to regulation of medical practice and so forth, where, uh, we see his, uh, strong fro-, strong free-speech legacy coming to the fore.


                                                Um, but I also think, uh, you know, he, he I think he generally was bothered, uh, as to the brief that was mentioned earlier pointed out some of the gerrymandering of the clinics that were subject to this requirement. And so, whether it pretends a retirement or not, I don't know. But it is, I think, consistent with a, uh, with a very long and robust line of pro-free speech protection from Justice Kennedy over the -- over his years on the Court.


Mr. Dean Reuter:                    We do have another question from the audience. We can carry on. Uh, if you have a question, push the star button then the pound button on your telephone. Let's head in a new direction with a new caller.


 Caller 5:                                 Hi, uh, I'm calling from California. My name is [inaudible 30:23] and I have a question in regards to the travel ban, and I would like to know the opinion of the professor in regards to our Supreme Co-, Court possibly upholding the following proclamation or following executive order by President Trump. I'd like to know [inaudible 30:40] has a serious crisis. Over 600,000 people crossing the border every day, and, uh, the U.S. not having enough detention space at inaudible 30:52]. And, uh, do you think if President Trump today issued a proclamation stating that in the interest of national security, this lack of space in detention centers and lack of funding, all the individuals who are crossing the borders -- the border illegally will be returned to the country from where they crossed the border, not at the -- not the country where they are persecuted, and will be told to apply legally and wait for adjudication, which will solve the problem of separation of children and adults, uh, which will solve the problem of overcrowding of detention centers and so forth. Do you believe the Supreme Court will approve that?


Prof. Michael P. Moreland:    Uh, I couldn't hear all of the caller's question. Some of it was a little muffled. I gathered it was about the travel ban case, but also about the, um, the, uh, current, uh, immigration border issues. Is that right?


Caller 5:                                  Yeah. I can, I can, uh, I can repeat, uh, the question. Uh, basically what I'm saying if today President Trump issues a proclamation which states due to the interest of, uh, national security, based on today's ruling of the Supreme Court, due to overcrowding and lack of space in detention centers, and, uh, lack of funding all of individuals who are crossing the border illegally and claiming asylum will be returned to the country from where they crossed the border, not to the countries where they're persecuted, and will be told to apply legally at the ports of entry and wait for the decision there. Um, so this way we'll have no separation of children and adults. We will not have catch-and-release of thousands of people fleeing their country, and we will not have overcrowding of detention centers. Do you believe the Supreme Court will decide in favor to uphold this proclamation by President Trump?


Prof. Michael P. Moreland:    I, I really -- I'm not an expert on, uh, immigration law. I mean, I've, I've, you know, worked on it sp-, sporadically on it over my career, but I, I, I would not, I would not feel confident to, um, o-, opine, on, on, on the immigration issues you raised. And as to the travel ban and its potential implications with regard to presidential authority over, uh, immigration and the like, uh, again, I, I'm not a, a particular expert, uh, on that, except I've looked at the opinion that was announced today. But, yeah, there will be another Federalist Society teleforum shortly, which -- where you can, uh, have those questions, uh, looked at.


Mr. Dean Reuter:                    I would second that, Professor Moreland, and thank you, um, caller, but we will have a, a call on the, uh, Trump v. Hawaii case or Hawaii v. Trump case, uh, in just about an hour.


                                                Um, let me make another call for questions. If you have a question, there are none on the board right now, push the star button and the pound button if you have a question.


                                                Um, I'll, I'll ask one question, which I think you used -- you more or less already answered, but per-, perhaps not directly, and that is about other statutes in other states that are similar to this. Do you have a sense of the lay of the land? Um, will this decision go, you know, much beyond California's, uh, rule to other like rules?


Prof. Michael P. Moreland:    Well, again, in the other courts that, uh, have looked at this, uh—for example there was a case out of Baltimore, um, and uh, and some others—uh, the pro-life crisis pregnancy centers had already prevailed. So they, they lost in California in San Francisco. So, uh, I think this is a very, uh, as I've said, uh, several times, I think this is a very strong pro-free speech decision in this area, and unless the State is trying to regulate something that happens as part of a medical procedure narrowly, and again as part of informed consent, I think that, uh, it's a very strong indication that other kinds of compelled speech, compelled advertising, compelled disclosure in this area will be, uh, will, will be held unconstitutional. It's, it's a, as I say, it's a very, very broad opinion, I think, in that regard.


Mr. Dean Reuter:                    Very good. Um, we do have another question from a caller. Let's check in with one more caller.


Prof. Teresa Collett:                Hi, Mike. This is Teresa Collett. Um, and I apologize because I was not available during the first part of your remarks. I have been deeply concerned about its implication for the informed-consent statutes that we have, some of which are really quite broad, some of which are very na-, narrow. I understood you to say that you think as long as we can attach it to a medical procedure and -- that we're probably fine. But at those states, for example, that require, um, the gestational, uh, development booklets to be reviewed or made available or even, uh, the States that require, um, the ultrasound being listened to -- or the, uh, heartbeat, I think that's because it's so early. But, uh, the ultrasound where they allow the woman to look away, but nonetheless it has to be position where she can, can see it. You think, you think we're safe? This is not going to be used to, to overturn those laws?


Prof. Michael P. Moreland:    Right. So there're a number, as I've said, a number of states that have, uh, as a word, kind of the, I don't know, inverse, if you will, of what California did here with regard to, uh, pro-life disclosures, uh, in the context of, um, of performing an abortion, and, uh, Professor Collett's right. A lot of this had been upheld, most prominently some cases like from the Eighth Circuit, such as South Dakota v. Rounds, or, uh, Rounds v.  Planned Parenthood—I forget what the exact title is --


Prof. Teresa Collett:                -- Right.


Prof. Michael P. Moreland:    -- but it's something like that. Um, and the opinion, though, from Justice Thomas distinguishes those because it -- so it mentions the, uh, lines in Casey where the Court, uh, in the plurality opinion in Planned Parenthood v. Casey had upheld, uh, informed-consent disclosure requirements, uh, on the part of the State. And then he says here at page 11 of the slip opinion:


                                                "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 covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures."


                                                And so, I think those sentences from page 11 of the slip opinion are, are a pretty clear distinction that the Court, uh, is, is, is drawing here between the, uh, the kinds of, uh, requirements that were upheld in Casey and that, uh, that, as you know well, have been upheld in a lot of other, uh, states, uh, as well, and the kind of requirement here that the Court is, is striking down. So, again, if it's about a medical procedure and informed-consent requirements attached to it, and it's related to the conduct of the practice of medicine, the State has a, uh, has some leeway to regulate. But as the, uh -- those sentences I read from page 11 of the opinion point out that's not the issue here.


Prof. Teresa Collett:                Can I, can I push back for just one second? Can I have a follow-up, Dean? I'm sorry. Um, so --


Mr. Dean Reuter:                    -- Yeah, go right ahead, Teresa.


Prof. Teresa Collett:                So the language that you, you read, though, I guess it's the, it's the gestational age stuff. It's the stuff that doesn't arguably directly relate to the procedure itself that I'm concerned about. And, and -- but you cite to the Rounds opinion, which is -- I'm now in the Eighth Circuit and we, we love that because it allows them to, to say that, you know, abortion will end the, the life of a separate, unique, uh, human being. So, so should we -- certainly in the Ninth Circuit we should expect them to hang their hat on that and unless it's directly related to risk of hemorrhage, perforation, you know, that sort of thing, they'll try to probably, you know, put it off. But you think the Court intended to encompass a broader, as long as it's truthful, non-misleading -- will stick with that language from Casey?


Prof. Michael P. Moreland:    Right. Truthful, factual, not misleading, not ideologically freighted messages that have to be imparted as part of informed consent. You know, and the States of course do this in, uh—I mean obviously we're focused on abortion here—the States, both either through tort law or through statutes have all kinds of regulations of informed consent all over the place, right, about what, uh, what kinds of disclosures have to be made by physicians, uh, with regard to the risks of procedures and so forth.


                                                Um, uh, but I do think that, uh, for now those kinds of disclosure requirements in the context of informed consent are, are safe. Like the, the, uh, disclosure that was upheld in -- the South Dakota disclosure that was upheld in Rounds precisely because of this language from the Court's opinion.


Prof. Teresa Collett:                Excellent. That's comforting. Thank you.


Prof. Michael P. Moreland:    And I, I mean, should just to follow on it, I mean, this, of course, is a, is a big point of contention as I mentioned earlier between, between the majority and the dissent. I mean, Justice Breyer's concern that he raised at oral argument where, uh, he said, you know, what's good for the goose should be good for the gander; that the same kinds of restrictions on, um, uh, speech here should also be, uh, sho-, should be fair game for, uh, the kinds of disclosure requirements that are part of, uh, informed consent. He says at page -- this is page 12 of his dissent:


                                                "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 applies only to 'primary care clinics,' which provide 'services for the care and treatment of patients for whom the clinic accepts responsibility.'"


                                                And so, um, I just highlight that, that, that precisely this point that Professor Collett and I were discussing is, is a point of contention between the majority and the dissent here.


Mr. Dean Reuter:                    Very good. It looks like we've had our final question, Professor Moreland. Let me give you a minute or two to wrap up, express any final thought you might have.


Prof. Michael P. Moreland:    Well, uh, you know, again, I think it's a sign of the strength of the free-speech arguments that, uh, that the Court, um, uh, has accepted over the last few years, uh, going back to, as I mentioned earlier, cases like the Violent Video Games case and U.S. v. Stephens and others, uh, so you know, it's part of a larger trend I'd say that's, uh, very strongly, uh, pro-free speech. Uh, I do think that the opinion here is, uh, is a very well-crafted defense of a, uh, framework of content-based regulation triggering strict scrutiny that California clearly couldn’t satisfy. Um, and, uh, I mean, we've already talked about some of the further implications down the road about it. But I think for now it was a -- is a very strong victory for, for freedom of speech, and underscored, also, I should, uh, again, emphasize by the Justice Kennedy concurrence for himself and three other justices that was even willing to—given how the statute was framed—was even willing to find, uh, viewpoint discrimination.


Mr. Dean Reuter:                    Very good. Well, my thanks to, uh, Professor Mike Moreland. Thank you, uh, you were with us all along the way for this case. We cer-, certainly appreciate it, uh, not just the preview in the oral argument, but the decision as well. So thank you for joining us today.


Prof. Michael P. Moreland:    Happy to do it.


Mr. Dean Reuter:                    Thank you to the audience as well. A reminder to the audience, uh, about our next teleforum conference call, which will begin in less than an hour at 3 pm Eastern Time. We'll be talking about the Supreme Court's other decision today in the Trump -- uh, the travel moratorium case, uh, at this same number 3 o'clock today. But until that next call, we are adjourned. Thank you very much everyone.


Operator:                                 Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at