Constitutional Gerrymandering Against Abortion Rights: NIFLA v. Becerra
Michele Bratcher Goodwin and Erwin Chemerinsky, Constitutional Gerrymandering Against Abortion Rights: NIFLA v. Becerra, 94 NYU L. Rev. 61 (2019).
In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful factual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare.
In concluding that the California law is unconstitutional, the Court’s decision has enormously important implications. It puts all laws requiring disclosures in jeopardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitutionally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the interests at stake in its decision, and applied a more demanding standard based on content of speech.
But NIFLA v. Becerra is only secondarily about speech. It is impossible to understand the Court’s decision in NIFLA v. Becerra except as a reflection of the conservative Justices’ hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion.