California’s FACT Act — which requires, inter alia, “crisis pregnancy centers” to disclose that they are not, in fact, medical clinics — is being challenged in NIFLA v. Becerra, as a violation of the First Amendment. The petitioners, including the National Institute of Family and Life Advocates, which provides legal and other support for crisis pregnancy centers, and Fallbrook Pregnancy Resource Center, claim the law forces them to make statements contrary to their purpose. I suppose if your goal is to trick people into thinking you’re a medical clinic when you are not, in fact, a medical clinic, this law would put a crimp in your style.
During oral arguments this week, it seems Justice Sonia Sotomayor’s patience with the Fallbrook Pregnancy Resource Center was put to the test. Having taken a look at the petitioner’s — not a licensed medical clinic — website, she notes there are plenty of materials there that would lead the average person to conclude Fallbrook was a medical facility. As Justice Sotomayor describes the webpage:
“There is a woman on the home page with a uniform that looks like a nurse’s uniform in front of an ultrasound machine,” she said. “It shows an exam room. … If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”
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That is when Justice Anthony Kennedy stepped into the fray. According to Law360, he scolded Sotomayor for doing research beyond the record:
Justice Kennedy, the court’s most senior member, objected.
“Well, in this case I didn’t go beyond the record to look on the internet because I don’t think we should do that,” he said.
Without cameras in the courtroom capturing the moment, we’ll just have to imagine the shade that drips off those words.
But it wasn’t the only notably terse moment from the day’s arguments:
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That was not the only tense moment during the arguments, during which the justices are normally exceedingly deferential to one another’s questions. Another came when Justice Sotomayor interrupted U.S. Deputy Solicitor General Jeffrey Wall as Wall responded to a question from Justice Stephen Breyer.
“Maybe could we let him finish the answer, please,” Chief Justice John Roberts Jr. said, frustrated.
I guess interrupting people actually becomes a problem when men are on the receiving end.
And though the argument demonstrated a predicable distinction between the conservative and liberal justices on the Court, Justice Elena Kagan questioned whether the exemptions in the statute targets anti-choice groups:
But to court watchers’ surprise, Justice Elena Kagan suggested during [California Deputy Solicitor General Joshua Klein]’s presentation that it seemed as if the state had narrowly targeted the law at pro-life groups by providing various exemptions to other groups.
“There is a sense when you read this statute, Mr. Klein, there’s at least a question that arises as to whether this statute has been gerrymandered,” she said.
It was a point Justice Samuel Alito couldn’t wait to agree with.
Now we’re just left to speculate how the verbal sparring in the oral arguments translates into the justices’ decisions.
Kathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).