SINCE 1992, when the Supreme Court barred regulations posing an “undue burden” on a woman’s right to choose to have an abortion, pro-life and pro-choice forces have battled over how far states may go in circumscribing the right first recognised 45 years ago in Roe v Wade. But in a case on March 20th involving a California law that is designed to expand access to abortion, Anthony Kennedy—the Court’s perennial swing justice—appeared to flip the standard on its head. 

In an exchange with Michael Farris, the lawyer representing the National Institute of Family and Life Advocates (NIFLA) Justice Kennedy said the law posed an “undue burden” on the mission of so-called “crisis pregnancy centres” (CPCs), pro-life establishments that seek to steer women away from abortions. The FACT Act, which went into effect on January 1st, 2016, and which NILFA is challenging, seeks to protect low-income women from being misled by California’s hundreds of CPCs that “pose as full-service women’s health clinics” while “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights”. The law requires centres to post a sign with a phone number where women can access free or subsidised family planning services—and, for unlicensed facilities lacking medical personnel, to tack up a second sign noting that fact.

Oral arguments are for asking questions, but Justice Kennedy seemed to have his answer rather early in the hearing, when he said the burden posed by the FACT Act “should suffice to invalidate” it. That is a rather definitive statement. On first glance, it may be hard to see how requiring a facility’s waiting room to include 8.5” by 11” notices in 22-point font (for the licensing disclosure) or a 48-point font (for abortion availability) interferes unduly with the organisation’s freedom of speech. But the law applies outside the doors of the CPC, too. The disclaimers must be “disseminate[d] to clients” both “on site” and “in any print and digital advertising materials including Internet Web sites”. They must be “in larger point type than the surrounding text” or in contrasting font styles. This is especially burdensome, as Justice Kennedy noted, when envisioning a highway billboard on which a CPC may wish to advertise its views. A billboard urging women to “Choose Life”, for example, would have to be emblazoned with the 29-word disclosure in a font that’s at least as eye-catching as the organisation’s two-word message. 

When the same question arose during the California lawyer’s stint at the lectern, even Justice Sonia Sotomayor—who had spent most of the hour being sceptical about NIFLA’s free-speech claim—appeared to balk. Forcing a CPC to reproduce the disclaimers on billboards in large type is “burdensome and wrong”, she told Joshua Klein, who had trouble defending this perhaps unintended application of the FACT Act. He also struggled to satisfy Justice Elena Kagan, who wanted evidence that California passed this law in hopes of protecting “poor women [who] don’t have access to information” about abortion, rather than to stick it to “a particular kind of centre that is misleading women as to what they do and don’t provide”. 

The conservative-leaning justices—with the exception of Clarence Thomas, who, as is his custom, asked no questions—all seemed to line up on NIFLA’s side. Justice Neil Gorsuch asked why the state should “free-ride on a limited number of clinics to provide” information about abortion services. “It’s pretty unusual to force a private speaker” to communicate a message the state wishes to broadcast, he said. Chief Justice John Roberts raised his eyebrows at the notion that an organisation can “be required to list services that they don't provide but that may be provided elsewhere”. And Justice Samuel Alito suggested “intentional discrimination” underlies California’s law.

Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan all compared the crux of the California law to “informed consent” rules in pro-life states requiring abortion providers to, among other things, show women ultrasound images of their fetuses, discuss adoption and hand out pamphlets warning of purported dangers of abortion. “What’s sauce for the goose is sauce for the gander”, Justice Breyer quipped. If some states can use third parties as their mouthpieces to broadcast an anti-abortion message, other states should have the same power to inform women of all their reproductive health options. But the liberal wing of the Supreme Court seems hesitant to endorse every part of the FACT Act, a poorly drafted statute that unnecessarily targets pro-life organisations. That reluctance coupled with opposition from the conservative justices will probably doom the California law when the justices rule in NIFLA v Becerra later this spring.