HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

[ARCHIVE CLIP: We'll hear argument this morning in case number 16-1140. The National Institute of Family and Life Advocates v. Becerra.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, the hosts are talking about NIFLA v. Becerra, a case from 2018 that centers around reproductive rights and free speech. NIFLA, if you're not familiar with the crisis pregnancy center scene, is the National Institute of Family and Life Advocates, a nonprofit that claimed California law violated free speech protections by requiring clinics offering pregnancy-related care to provide people with certain information about legal abortion. The law also required that clinics disclose if they are licensed medical providers, which most of these crisis pregnancy centers were not.

[ARCHIVE CLIP: There are thousands of fake health clinics around our country—370 in the state of California—that are unfortunately deceiving women.]

Leon: The Supreme Court sided with the pro life clinics and struck down the California law. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have poked holes in our civil rights like Elon Musk poking holes in his brain with amphetamines. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Hey, it's me. Elon Musk is really tweaking, isn't he?

Peter: Losing it every single day. It's cool to watch someone have a perpetual meltdown for actual years—both in person and online—and also know that they are the most powerful person in the world. That's cool. That rules.

Rhiannon: Yeah. To have been rewarded for those years of being prime time bitch number one publicly, you know?

Peter: Yeah.

Rhiannon: And to now just be standing in the Oval Office next to the president's desk being like, "Yeah, I run this shit." It's horrible.

Peter: Yeah. This is a world where being a whiny little punk just gets rewarded over and over again. Absolutely one of the top punks of all time. Just a top-tier bitch. There's no other way to put it. I know every now and then someone complains when I call someone a bitch, but I don't know what else to do with that, man.

Rhiannon: I'll give you the pass on this one.

Peter: Thank you.

Rhiannon: Yeah. Yeah. [laughs]

Peter: Michael taking the week off this week, and because of that, we are once again punting on McCutcheon v. FEC, which I believe we've punted on, like, three weeks in a row or something?

Rhiannon: Yeah. This is now just like the 2025 bit, maybe. Like, we're just never gonna do McCutcheon.

Peter: It is starting to be a bit, and now feels like maybe we shouldn't do it, you know?

Rhiannon: [laughs] Yeah, I know. But Michael taking this week off—and we really need Michael on McCutcheon, like, you know, money in politics, that's absolutely his bag. So yeah, not this week. Maybe next week. We don't know.

Peter: Yeah, I'm not ever gonna commit to anything again.

Rhiannon: Yeah.

Peter: The world is too dynamic. Today's case: National Institute of Family and Life Advocates v. Becerra. This is a case from 2018 about crisis pregnancy centers.

Rhiannon: Yeah.

Peter: Crisis pregnancy centers, if you don't know, are centers set up by anti-abortion groups to provide consultations to pregnant women. The premise of these, for anyone not familiar, is essentially a bait and switch. They present themselves as resources for someone who's pregnant, and then when those people show up, they use the opportunity to dissuade them from getting an abortion.

Rhiannon: Yes.

Peter: And in the process, they often share a lot of misinformation about abortion and misinformation about the person's own body. So California was one of several states to pass a law designed to crack down on the practice by requiring that these centers make certain disclosures to their clients, including providing information about legal abortion and disclosing whether or not the center is a licensed medical provider. And, you know, spoiler, they're generally not.

Rhiannon: Right.

Peter: The nonprofits that owned the centers challenged the law, claiming that it violated their speech rights. And the Supreme Court, in a five to four decision, agreed.

Rhiannon: Mm-hmm. Yeah, this is actually pretty recent. So Peter, you mentioned California and several other states passed laws kind of trying to crack down on the disinformation, the unlicensed practice of medicine that was kind of spreading through these centers. And California passed that law in 2015, and this case came down in 2018. It's not that old. I just want to mention up top, it's because the proliferation, the absolute boom in the existence of crisis pregnancy centers across the country was as a result of tens of millions of dollars in federal grants being delivered to crisis pregnancy centers during the George W. Bush administration. So just if you needed a reminder of how shitty that guy was, you know?

Peter: Yeah. Or a lot of our listeners who are all 21 years old don't know.

Rhiannon: Right. Right. You don't know. But that guy was real bad, too. So let's get into crisis pregnancy centers, like what they do, what they're up to, what this law in California was trying to address. So there are thousands of crisis pregnancy centers across the country. They are mostly run by nonprofit organizations; they are a lot of times backed by religious groups, by churches, the vast, vast, vast majority being conservative Christian churches. And they exist to persuade pregnant people not to have an abortion. That is the mission.

Rhiannon: There are many, many, many more crisis pregnancy centers in the United States than there are abortion clinics. And crisis pregnancy centers provide, you know, lots of sort of pregnancy-related services. They will provide, you know, free pregnancy testing. They will often provide sonograms. But many, many operate without actual medical licenses, right? There aren't licensed medical, you know, healthcare providers working in these places. And, you know, in terms of getting people kind of in the door, pregnant people, so that they can dissuade them from getting an abortion, crisis pregnancy centers have been found to often use deceptive advertising that, you know, sometimes targets people who want abortions. So we'll say, like, you know, "Are you pregnant? Do you need help?" That kind of thing. "Are you looking for abortion services? Well, come here."

Rhiannon: And then when you're there, crisis pregnancy centers provide misleading, you know, kind of like really graphic information sometimes, to convince women and pregnant people not to get abortions. One tactic that they do is conducting free sonograms. If you think—you know, probably a lot of our listeners know about in anti-abortion states, those states will require that abortion providers do sonograms when people are coming to receive abortion care. A sonogram, of course, being completely irrelevant to, you know, in terms of medically what abortion care looks like.

Peter: Just like, "Look. Look him in the eyes."

Rhiannon: Exactly. Exactly. It's all about like, here's a picture of a fetus. And so it's supposed to sort of emotionally muddy the waters for somebody who is seeking abortion services. Now at a crisis pregnancy center, what they'll offer then a lot of the times is a free sonogram. Do you need a sonogram? Let's check it out. Let's check out the health and development of the fetus. So that's something else that happens at crisis pregnancy centers, along with a general sort of dissemination of false medical information.

Rhiannon: A lot of these places, you know, they present decades-old medical studies that have since been found to, like, not really be unfounded. They provide false information about the health risks of abortion. Often, you know, people who go to these crisis pregnancy centers will say that they were told that, for example, abortion is more dangerous than childbirth when actually factually, the opposite is true. Abortion is much more safe to the pregnant person than going through childbirth.

Peter: There's an irony there, which is that the availability of abortion makes childbirth safer because it prevents high-risk childbirth. Whatever. Okay.

Rhiannon: Yeah. Yeah, yeah.

Peter: You don't want to get too in the weeds, but this all is bullshit, yeah.

Rhiannon: It's all bullshit. Yeah, exactly. Another big, let's say, exaggeration if not, you know, just outright falsifying this information is talking about the massive mental health risks of abortion. So saying that, you know, women who get abortions experience, you know, much higher rates of depression, much higher rates of regret, much higher rates of unhappiness. You know, even that abortion causes cancer.

Peter: That's one of their favorites, the fake link to breast cancer.

Rhiannon: Yeah.

Peter: Which has been pretty thoroughly debunked, but is ubiquitous if you read the reporting across all of these centers.

Rhiannon: Yes. Yeah, totally. So that's what a crisis pregnancy center is, that's what they do. And let's bring in NIFLA then, the National Institute of Family and Life Advocates. This is the plaintiff in this case, the nonprofit organization that sued to challenge this California law. NIFLA was founded in 1993 with the aim of, quote, "Developing a network of life-affirming ministries in every community across the nation in order to achieve an abortion-free America."

Rhiannon: Now what does NIFLA do? They provide legal advice, legal counsel and some quote-unquote "medical training" to its membership CPCs—crisis pregnancy centers. So this is one of the nonprofits that supports CPCs across the country.

Rhiannon: Now let's turn then to the California law, and what California was requiring of abortion providers and crisis pregnancy centers and the like. So in 2015, California passed the Reproductive Freedom Accountability Comprehensive Care and Transparency Act. FACT—F-A-C-T—FACT Act. Now this act required that licensed facilities providing services, you know, including ultrasounds, contraception, pregnancy tests and abortions, so a licensed facility that provides pregnancy-related care, it required those facilities to post notices that informed patients of California's free and low-cost family planning services, prenatal care services and abortion. So basically provide people with information about where they could obtain help, including financial help from the state with comprehensive family planning services, you know, kind of California publicly providing some of this stuff. So the licensed medical facility has to post that those services are available.

Rhiannon: Now there's another requirement in the FACT Act. It also required that unlicensed facilities that provided similar care, unlicensed facilities that provide ultrasounds, prenatal care, pregnancy tests, that those facilities were required to disclose on site and in their advertising that they're not licensed. The required disclosure, quote, "This facility is not licensed as a medical facility by the state of California, and has no licensed medical provider who provides or directly supervises the provision of these services."

Peter: Yeah, the "FYI, we're a bunch of morons here."

Rhiannon: [laughs]

Peter: "Just a bunch of assholes."

Rhiannon: "Just FYI, we are built to look like a clinic, a medical clinic. Just want you to know no doctor or nurse works here." [laughs]

Peter: "We're doing sonograms because we're sexual perverts. That's what's happening, FYI."

Rhiannon: God! Yeah, so NIFLA, along with other organizations that either run or support or otherwise, you know, believe in crisis pregnancy centers, sued the state of California, saying this law, the FACT Act, violated their First Amendment free speech rights.

Peter: Totally.

Rhiannon: Yeah. Totally, dude!

Peter: So let's talk about the law here. You have these two disclosure requirements. They have to disclose the availability of abortion services in California. They have to disclose whether they are licensed. And they argue that this is a violation of their First Amendment rights because it is a form of compelled speech. It is forcing them to speak in a way that they don't want to speak. That is a category of First Amendment protection. The First Amendment doesn't just protect you from being punished, for example, for saying something that you want to say, it also makes it so that the government can't make you say certain things. So the government could not constitutionally pass a law requiring you to give a speech about how much you love Donald Trump or whatever, right?

Peter: But there are a ton of exceptions, especially in the commercial business context. The government requires all sorts of labeling and disclosures for food, for example—nutrition information, genetic engineering disclosures. You have required warning labels on tobacco and alcohol products. If you've ever worked at a restaurant, you've seen postings in work areas concerning food safety and handling. Businesses across the country are required to publicly post information about workers' rights in public spaces. More on point, doctors often have to inform you about certain risks and concerns before different procedures and prescriptions. It's called "informed consent." Countless examples of these, right?

Rhiannon: Yeah.

Peter: So the fundamental question here is where on the spectrum this disclosure or these disclosures fall? How do we draw the line, and where are these disclosures on that spectrum? Clarence Thomas writes the majority opinion. What he says is that generally under the Court's precedent, compelled speech will be okay if it is, quote, "Purely factual and uncontroversial information."

Rhiannon: Hmm.

Peter: Now again, the required disclosures here are one, the fact that legal family planning and abortion services are available in California, and two, a disclosure that the center is, in fact, not a licensed medical provider. Those seem both factual and uncontroversial on their face, right? You can't exactly dispute them. But what Thomas says is that this doesn't apply because abortion is a controversial topic.

Rhiannon: Mm-hmm.

Peter: Which is a cute little bait and switch, right? Like, the test isn't supposed to be whether the topic is controversial, it's whether the facts are controversial. Yes, abortion is a controversial topic, but just saying that abortion services are available in California is an undisputed uncontroversial fact. Racial discrimination is a controversial topic. Does that mean that workplace posters saying that employers can't discriminate violate the First Amendment? A little too spicy, little too controversial.

Rhiannon: Controversial-uncontroversial dichotomy, completely subjective. I can say so many things are controversial where that businesses or whoever have to disclose. That's not a real test. That's not a legal test.

Peter: No. If there's a poster requirement, for example, saying it's illegal to hire undocumented workers in this facility, you think Clarence Thomas says "No, immigration's too controversial?"

Rhiannon: [laughs]

Peter: No, come on.

Rhiannon: It's a hot-button issue.

Peter: This is all just very cutesy. You know, he's just sort of changing what the test is from whether the fact is controversial to whether the topic is controversial. And that's just not what the law said.

Rhiannon: Mm-hmm.

Peter: And that's just not what the test is. He also seems to be concerned that this law is targeting anti-abortion activists. Several times he says the restriction is speaker based, which is true, but it's also true of basically all disclosure requirements, or at least every disclosure requirement that I can think of. There's no law that requires everyone to disclose something. That would be ludicrous, right? They depend on the speaker. Food producers have to disclose nutritional info, tobacco companies need to disclose cancer risks, et cetera, right? They're all quote-unquote, "speaker based."

Peter: He also says that this forces these clinics to advertise the very practice they are opposing, which is basically true—and maybe his strongest argument—but also it's true that many if not most disclosure requirements go against the interest of the person or organization who has to disclose them, right? That's sort of the point. Cigarette companies don't want to tell you that it causes cancer, the government forces them to.

Rhiannon: Or when you work at a restaurant, like, the restaurant has to tell you, "Oh, you actually have this pathway. You can go to the EEOC or whatever to file your complaint against us." Like, it's obviously against their interest. They still have to do it.

Peter: Right. Gambling websites have to be like, "Hey, if you have a gambling problem, call this number." Right?

Rhiannon: Yeah.

Peter: It goes against their interest. That's the entire point. The government is saying, "Hey, you are in this sort of risky space. You need to provide this very pertinent information to the customer given the stakes." So according to Thomas's rule, it seems like you can't make someone disclose something if they deeply oppose it. So if a company is run by devout racists, do they not have to post the employment discrimination disclosures? Is that really how it works? It seems at the end of the day like Thomas just thinks that abortion is different. He's pretending that this is like a real rule, but really he's just creating a rule that only applies in the abortion context. He's saying abortion is different. Anti-abortion activists and organizations receive extra legal protection. Right?

Rhiannon: Yeah. Yeah. A little cushion for them. Little kiss on the lips. Yeah.

Peter: The last thing I want to mention is his argument about the licensure disclosure, right? Remember, he's saying these places don't even have to disclose that they are not licensed medical providers.

Rhiannon: This is the wildest part, I think. It's so crazy.

Peter: What he says is that this doesn't pass muster because the harm caused by not disclosing is, quote, "purely hypothetical."

Rhiannon: [laughs]

Peter: Which, it's worth noting, is not true. When they were considering the law in California, the legislature heard testimony from people who relied on these centers and were lied to and deceived. So it's not hypothetical, but also it's just silly. Like, we're going to pretend that not knowing whether a medical provider is licensed is no big deal? That it's like just this hypothetical issue? Give me a fucking break. Like, what are you—what are you talking about?

Rhiannon: We talked about this last night, you and me, Peter. Like, it just seems like de facto harm.

Peter: Right.

Rhiannon: If somebody goes to a clinic thinking that it's a licensed medical provider and it's not, that's harm. There is legal harm there.

Peter: What's the point of licensure at all if the consumer doesn't know?

Rhiannon: Exactly. If the consumer is seeking services from unlicensed providers and doesn't know that they're unlicensed, I mean, it's de facto per se harm, and could be defined as such reasonably under the law. And Thomas just gets to call it hypothetical.

Peter: Right. In no other context would anyone on the right find this acceptable, where it's just like, we're gonna set up a fake medical center in order to basically trick people into thinking that we know what we're talking about, and push them away from XYZ medical procedure, right? I couldn't be like, "Hey, I believe in the sanctity of the body. I really oppose knee surgeries," and just set up a center that's like, "Have knee problems? Come see me." And then I just, like, put you under, and then when you wake up, I'm like, "I didn't give you the surgery." Like, this is ridiculous. In any other context, it's completely ridiculous.

Rhiannon: It doesn't make sense!

Peter: But when it comes to abortion, they're like, "Well, free speech. Free speech."

Rhiannon: So special. It's an exceptional part of the law to them. Moving to the concurrence, Anthony Kennedy writes a concurrence which is joined by all the conservatives except for Thomas. Kennedy is talking in the concurrence about "viewpoint discrimination," which he is concerned about in the law. So totally agrees with Thomas, also is saying there's a viewpoint discrimination problem in this California law and that's another reason why it's unconstitutional under the First Amendment. Thomas's majority opinion does not reach the question of viewpoint discrimination. So Kennedy's, like, adding that on, saying, "Yeah, and here's another reason why this law is unconstitutional." He's saying that viewpoint discrimination—again, the speakers themselves are being discriminated against for their viewpoint, here being anti abortion. Viewpoint discrimination, Kennedy says, is inherent in the design of this act because the law compels clinics, according to him, that are likely to be anti abortion to give a notice about abortion services. True, but also it's to all pregnancy care-related providers that that requirement applies to.

Peter: I think that this is a stronger argument than anything Thomas says, that it's just like, well, you're targeting people who believe this and are saying this about abortion. You're targeting people who are anti abortion. The problem with that, though, is that these people are not being prevented from speaking. They are still allowed to operate. All that is being required of them is that they make certain very, like, simple disclosures, and disclosures that make sense in the context of people who are at least purporting to provide medical advice. Now I think the better way to look at it is like we just said, that it's not that this viewpoint is being discriminated against per se because you couldn't do this in any other context and get away with it, right?

Rhiannon: Right.

Peter: If anything, the opposite is true. These people are being allowed to function in this, like, medical gray area, provide flat out misinformation, and be immune to any regulation. I mean, you don't see this anywhere else, right? Like, if your supplements are not FDA approved, you have to reveal that.

Rhiannon: Yeah. Yeah. I mean, any informed consent requirement. And just take healthcare, this goes to abortion, to the conservatives being exceptionalized, it's not viewed as healthcare, it's not viewed as a medical service, it's not viewed as in line with, you know, any type of healthcare service that you would get. Instead, it's viewed as political and moral and controversial, and something that's not routine medical care. But any type of informed consent requirement on any type of healthcare service, medical care that you would receive can be defined under Kennedy's definition here as viewpoint discrimination if the provider of it has to get informed consent or explain that a certain procedure or something is available to somebody but personally doesn't agree with that procedure.

Peter: Right.

Rhiannon: When you're carving out abortion from everything else in healthcare, then you get to say that people are being discriminated against when they have to say that abortion is available like a healthcare choice.

Peter: Yeah. I mean, again, I will go back to the employment discrimination disclosures. Again, if you're at a workplace in America, there is probably, like, a little kitchenette area or something where there are posters about your rights as a worker, right?

Rhiannon: Yep.

Peter: Those are required disclosures. That could be viewed as discrimination against people who oppose those laws, right?

Rhiannon: Yes!

Peter: But no one views it that way because it's ridiculous. Because in a world where, like, people want to be informed and the government wants to have people be informed from time to time, you need disclosures like that. Again, this is sort of like classic conservative shit. They're claiming that this is discrimination against their viewpoint, but what they actually are looking for is special treatment. They want their viewpoint carved out from the rest of the legal order so that they get special privileges, and they get to pretend that they are medical providers and trick pregnant people into coming into their centers for abortion services and then being like, "Actually, it's a baby. You can't kill it. You'll get cancer."

Rhiannon: [laughs] Yeah. Yeah, that's what they want to do.

Peter: They just want to operate outside of the law, and it's so fucking obvious. And, like, this little shtick about how you're discriminating against us? Come on. It's just tired bullshit.

Rhiannon: Yeah, it's ridiculous. Justice Breyer is joined by all of the liberals in dissent here. Just a note again, this came down in 2018, so Breyer's on the court. He's writing the dissent. He's joined by Ruth Bader Ginsburg, Sotomayor and Kagan.

Peter: Quaint time at the Supreme Court.

Rhiannon: I know. What an interesting time. Now the dissent, I would say, you know, it's pretty—like, I would describe it as, like, meticulous. He goes through precedent. What does precedent say about this issue? Breyer goes through the arguments about this law in California, and he calls out places where the majority is not relying on facts or anything in the record to make its assertions. First, just talking about precedent a little bit, there are cases at the Supreme Court in which laws that required anti abortion messaging as part of informed consent rules were struck down.

Peter: Yeah.

Rhiannon: The court struck them down. There's a case called Akron v. Akron Center for Reproductive Health, where a city ordinance in the city of Akron required that doctors tell pregnant people that were considering abortion, doctors had to tell those folks that quote, "The unborn child is a human life from the moment of conception."

Peter: See, now that would be a controversial fact. You know what I mean?

Rhiannon: Exactly. Exactly. And—right, a controversial compelled speech, you know?

Peter: That's the difference, right? There's, like, a material difference between making someone say, "Hey, there are abortion services available in this state," and, "Hey, that's a human being."

Rhiannon: Right. Right.

Peter: And it's the same as a fully-grown person and God is real.

Rhiannon: [laughs] Right? And then a doctor has to say it, you know? Anyways, and so Breyer points out, you know, those laws were designed—it wasn't actually informed consent.

Peter: Right.

Rhiannon: It wasn't actually to inform the woman's consent, but rather, he says, to persuade her to withhold it altogether. It's to get the run around on somebody's consent. It's to fuck with your consent, actually, you know? Then of course—so there are a couple of cases like that on the books. Then of course, you get Planned Parenthood v. Casey. That is the case—we've talked about it on the podcast many times before—that says that any law sort of restricting or limiting access to abortion is unconstitutional if it poses an undue burden on the pregnant person. In Casey, in that case, there was a law that required the doctor to tell pregnant people about the health risks of abortion, and to make printed materials available that sort of like, describe the development of a fetus, describe and provide information about medical assistance for childbirth, and also provide information about agencies that could provide adoption services.

Rhiannon: Under Casey, those were not found to be an undue burden, right? So what Breyer is doing here is saying we have a whole body of precedent on abortion that explains how we should be thinking about these laws, and the majority is doing something completely different. Now talking about the state of the law after Casey and then what this case does to the state of the law, Breyer points out that, like, things are really muddied now by this case coming down because of the court's decisions that have come after Casey.

Rhiannon: So for example, after Planned Parenthood v. Casey in which courts were instructed to decide whether or not, you know, any laws related to abortion placed an undue burden, a lot of laws have been passed that compel abortion providers to relay to some extent anti-abortion messages. For example, in Mississippi, there's an informed consent statute that requires providers to tell patients that abortion is linked to breast cancer and infertility.

Peter: Mm-hmm.

Rhiannon: The state of Alabama requires doctors to claim that, quote-unquote, "An unborn child over 19 weeks gestation might survive outside of the womb." There are many examples of these kinds of laws which are okay under Casey. Those are fine. You know, states can force professional abortion providers to inflate the physical and psychological risks of abortion. They can even require that, you know, those providers tell patients that an abortion terminates the life of a separate, unique person.

Peter: Mm-hmm. Mm-hmm.

Rhiannon: But now under this case, states cannot compel crisis pregnancy centers to disclose that they are unlicensed healthcare providers, or that the state provides, you know, like, publicly supported, subsidized abortion and contraceptive services. So it's ridiculous. It's illogical. It is exactly what we're saying, that, like, abortion is somehow different. When you are anti abortion, you actually need special treatment and special support from the law. If you support abortion, if you're an abortion provider, limitations on you and your practice, that's fine.

Peter: Right. So just to drill down on this. Again, when this case drops, across the country, many states are legally allowed to require abortion providers to tell women that the risk of breast cancer is inflated when you get an abortion, even if those doctors don't agree with that, which they probably don't, because it's not really true.

Rhiannon: That's so stupid.

Peter: But if you are a pregnancy crisis center, you don't even have to tell them that you're not a fucking medical provider. You don't even have to tell them that you're some fucking bum off the street who's giving you a sonogram. I mean, it's ridiculous. It is again just the manifestation of the conservative belief that they are the true heroes of history, that they can only be the victims. That when a disclosure requirement applies to them, that's viewpoint discrimination, but when it applies to an abortion provider, that's informed consent. That's just—that's just the medical system working.

Rhiannon: Exactly. Breyer kind of ends the dissent, you know, rounds out the dissent with points about other, you know, First Amendment applications to, like, commercial speech, and saying, like, what the majority is doing is weighing this all wrong, weighing, like, the individual's First Amendment right versus the benefit to a consumer. You've got this balance all wrong. So there's a case called Zauderer, which required attorneys to disclose in their advertisements that clients might be responsible for, like, significant costs even if they lose their lawsuit. Lawyers have all kinds of disclosure requirements, right?

Peter: Yeah.

Rhiannon: And the court upheld that.

Peter: It's fucking bullshit, dude.

Rhiannon: [laughs] Yeah, I fucking hate it. It's viewpoint discrimination. Yeah.

Peter: The only type of discrimination I believe in.

Rhiannon: And so Breyer is referring to that case in which the Supreme Court says, like, the point of First Amendment protection of commercial speech is the value to consumers of the information that that speech provides.

Peter: Right.

Rhiannon: So conversely, turn that around. A professional's, quote, "constitutionally-protected interest in not providing any particular factual information in his advertising is minimal." So you having some sort of First Amendment protected right to not give people facts is tiny, tiny in comparison to the benefit to the masses of people who need to be provided those facts.

Peter: Right. And that's the other side of free speech is there are people listening, and the information that they want to receive and should receive, those are factors as well, right?

Rhiannon: Exactly. Exactly.

Peter: You see this across the jurisprudence, but Thomas just ignores it. The, like, accuracy of the information being received by the woman sitting at this clinic is irrelevant to him. And I think it's worth noting, relatedly, one of the tactics that these centers use is to try to run out the clock on the pregnancy. So there's a ton of reporting on this, but this is, I think, an opportunity to talk about what one thing that the majority really ignores. So there are many reports about these centers lying to women about how long abortion is legally available in their state, and even how far along the woman is in order to trick her into waiting to seek an abortion for too long, and then she can't. She can't seek it legally, right?

Peter: The majority very conspicuously avoids getting into just how much misinformation plays a role at these establishments. So they're lying about the risks of abortion, they lie about the risks of birth control, they are lying about this person's body to this person, they're lying about the law in that state. All of this is relevant because it speaks to what I think the government is really trying to accomplish here, which isn't just publicizing the availability of abortion services, but combating operations that are rife with fraud and misinformation.

Peter: There are exceptions in the First Amendment for this sort of thing. Like false advertising is not protected free speech. That's something that's very clear in the Supreme Court's precedent. So I think it's reasonable to view these disclosure requirements as part of an effort to clamp down on the dissemination of false and misleading information to pregnant people. It's not exactly the same as prohibitions on false advertising, but it's very sensible to view it as part of the same project, as part of the same fabric, right?

Peter: The sort of remarkable thing is that if California passed a law saying, "Hey, you can't lie to a pregnant person about how far along they are," that would be very plainly okay, but everyone knows that the centers that are doing this are doing this outside of the law anyway. So what do they do? They say, "Okay. Well then, we'll require that you disclose that you are not a fucking medical provider."

Rhiannon: [laughs]

Peter: That way, whatever lies you tell, at least the person has enough information perhaps to be like, "Oh, maybe I should seek advice elsewhere." I was kind of bothered to see the dissent not even mention this, that, like, that you could get into a completely different framework here by talking about misinformation and disinformation as part of the project here, as part of the legal framework.

Rhiannon: Yeah. And I think that's exactly right. I think that goes with—it's a particular Breyer thing, but it's also the liberals usually who just, like, meet the conservative arguments on their own terms and don't, like, offer any other alternative, right?

Peter: Yeah, there's no vision. There's no affirmative vision.

Rhiannon: Yeah, exactly. But what I think is so powerful about what you're proposing, Peter, is like, yeah, it's just a framework that, like, could be applied here just as legitimately—obviously even more legitimately in my mind, and just as convincingly as the framework that the conservatives are putting forth. You are deciding what areas of the law are relevant, support your arguments, and can be applied here. You don't have to just pick apart the conservatives' arguments, especially when they're so, so, so reliant on just straight bullshit.

Rhiannon: Yeah, one more point about bullshit. So Thomas in the majority has said things like, "Oh, well, this is a controversial topic," and has said things like, "The harm to somebody who goes into an unlicensed medical facility and is not informed that it's unlicensed, that harm is, quote-unquote, "hypothetical." There's bullshit all through the majority opinion. Both the majority and the concurrence sort of allege that this law in California was only being applied to anti-abortion clinics, to crisis pregnancy centers, and that you can see why, like, that beefs up their argument that this is, you know, like, targeted and viewpoint discrimination. Breyer points out in dissent, there is absolutely no evidence in the record, top to bottom, bottom to top, that it was only applied to anti-abortion clinics or disproportionately applied to anti-abortion clinics. And so not only do they greenlight misinformation, disinformation in this case in the crisis pregnancy centers, they're also peddling in it. They're also supporting their arguments with it. A lot of this is just not fact.

Peter: Right. And you know that they're the bad guys when the law is like, "Hey, you have to reveal if you're not a licensed medical provider," and they're like, "You're discriminating against us."

Rhiannon: [laughs]

Peter: Are we? Are we, or is it that you're not a licensed medical provider?

Rhiannon: Shut up!

Peter: This is a 2018 case that in a lot of ways feels very 2025. I mean, right?

Rhiannon: Yeah.

Peter: The bullshit runs through it. Thomas just changing the test so that he can say that this is unconstitutional.

Rhiannon: Yeah.

Peter: Lying about the law and just sort of, you know, together they carve out an exception for these anti-abortion lunatics who have set up thousands of centers across the country designed to trick people.

Rhiannon: Yeah.

Peter: Designed top to bottom.

Rhiannon: Yeah.

Peter: Top to bottom to trick people who are looking for medical services.

Rhiannon: 2018. It is a weird time on the court where, like, it's like there was, like, signals about what the 2025—what the 2024, 2025 cases were gonna read like.

Peter: Yeah, you had, like, Trump v. Hawaii in this era.

Rhiannon: Yeah.

Peter: You know, there was definitely a moment where, like, you look back and it all starts to click into place, right?

Rhiannon: Yeah. Yeah. We've mentioned obviously Anthony Kennedy was still on the court at this time. Justices Breyer and Ginsburg were on the court at this time. Gorsuch had just gotten on the court at about this time. This was, in fact, the first abortion case at the Supreme Court during Gorsuch's tenure. So yeah, you see the chips starting to fall where they will, you know?

Peter: When's Anthony Kennedy gonna die, by the way? Because I obviously ...

Rhiannon: Where is he?

Peter: We'll have to have a Zoom. You know, we'll have to do a special episode.

Rhiannon: A little fiesta.

Peter: We should maybe just pre-record it like an obituary, you know?

Rhiannon: Like a New York Times obituary. Yeah.

Peter: Yeah.

Rhiannon: Yeah, I got lots to say right now.

Peter: That's—that's just good journalism, you know?

Rhiannon: Uh-huh. He's fucking summering in Italy, I'm sure.

Peter: All right. He'll be 89 this year. Tick tock, tick tock.

Rhiannon: It's gotta be coming. It's gotta be coming!

Peter: Next week, McCutcheon v. FEC.

Rhiannon: Maybe.

Peter: Maybe. Who knows, folks? You have to believe.

Rhiannon: Yeah.

Peter: You have to believe you'll get McCutcheon v. FEC. Or maybe—maybe one of the various cases trying to stop Donald Trump from seizing Congress's power for himself will wander its way up to a higher court and we'll talk about that, you know? Who knows? 2025, baby. Follow us on social media at fivefourpod, subscribe to our Patreon: Patreon.com/fivefourpod—all spelled out, for access to premium episodes, special events, our Slack, all sorts of shot. We will see you next week.

Rhiannon: Bye! Love you!

Peter: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy, our artwork is by Teddy Blanks at CHIPS.BY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod