NIFLA v. Becerra

Crisis pregnancy centers can provide misinformation about healthcare and perform medical procedures without requiring a licensed doctor. Yes, all of that is legal, thanks to the Supreme Court. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We'll hear argument this morning in case number 161140, the National Institute of Family and Life Advocates versus Becerra.

• 0:12Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, 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's 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.

• 0:52Speaker 02

  There are thousands of fake health clinics around our country, 370 in the state of California, that are unfortunately deceiving women.

• 1:02Speaker 01

  The Supreme Court sided with the pro-life clinics and struck down the California law. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:20Peter Shamshiri?

  Welcome to Five to Four, 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.

• 1:29Speaker 04

  Hmm.

• 1:30Peter Shamshiri?

  I'm Peter. I'm here with Rhiannon.

• 1:32Speaker 04

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

• 1:36Peter Shamshiri?

  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.

• 1:50Speaker 04

  Yeah, to have been rewarded for those years of being primetime bitch number one publicly, you know?

• 1:57Peter Shamshiri?

  Yeah.

• 1:58Speaker 04

  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.

• 2:06Peter Shamshiri?

  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.

• 2:25Speaker 04

  I'll give you the pass on this one.

• 2:26Peter Shamshiri?

  Thank you.

• 2:27Speaker 04

  Yeah.

• 2:30Peter Shamshiri?

  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.

• 2:43Speaker 04

  Yeah, this is now just like the 2025 bit, maybe like we're just never gonna do McCutcheon.

• 2:48Peter Shamshiri?

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

• 2:52Speaker 04

  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, so yeah, not this week, maybe next week, we don't know.

• 3:03Peter Shamshiri?

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

• 3:19Speaker 04

  Yeah.

• 3:19Peter Shamshiri?

  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.

• 3:43Speaker 04

  Yeah.

• 3:44Peter Shamshiri?

  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.

• 4:17Peter Shamshiri?

  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.

• 4:28Speaker 04

  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

• 5:12Speaker 04

  administration. So just if you needed a reminder of how shitty that guy was, you know?

• 5:17Peter Shamshiri?

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

• 5:21Speaker 04

  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. There are many, many, many more crisis pregnancy centers in the United States than there are

• 6:02Speaker 04

  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, or 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.

• 6:38Speaker 04

  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. 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, right?

• 7:22Speaker 04

  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.

• 7:32Peter Shamshiri?

  Just like, look them in the eyes.

• 7:33Speaker 04

  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. A lot of these places, you know, they present decades old medical studies that have since been found to like, not really be unfounded.

• 8:16Speaker 04

  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.

• 8:38Peter Shamshiri?

  There's an irony there, which is that the availability of abortion makes childbirth safer.

• 8:45Speaker 04

  Right.

• 8:45Peter Shamshiri?

  Because it prevents high-risk childbirth, whatever. Okay.

• 8:49Speaker 04

  Yeah, yeah, yeah.

• 8:50Peter Shamshiri?

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

• 8:53Speaker 04

  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.

• 9:20Peter Shamshiri?

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

• 9:23Speaker 04

  Yeah.

• 9:23Peter Shamshiri?

  Which has been pretty thoroughly debunked.

• 9:25Speaker 04

  Yes.

• 9:26Peter Shamshiri?

  But is ubiquitous if you read the reporting across all of these centers.

• 9:31Speaker 04

  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." 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

• 10:16Speaker 04

  of the nonprofits that supports CPCs across the country. 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- 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

• 11:01Speaker 04

  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. 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 onsite and in their advertising

• 11:46Speaker 04

  that they're not licensed.

• 11:49Speaker 04

  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."

• 12:03Peter Shamshiri?

  Yeah, FYI, we're a bunch of morons here. Just a bunch of assholes.

• 12:09Speaker 04

  Just FYI, we are built to look like a clinic, a medical clinic. Just want you to know, no doctor or nurse works here.

• 12:18Peter Shamshiri?

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

• 12:24Speaker 04

  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.

• 12:44Speaker 04

  Yeah, totally dude.

• 12:46Peter Shamshiri?

  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.

• 13:29Peter Shamshiri?

  Right? 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.

• 14:15Peter Shamshiri?

  Countless examples of these, right?

• 14:16Speaker 04

  Yeah.

• 14:17Peter Shamshiri?

  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." 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?

• 15:01Peter Shamshiri?

  You can't exactly dispute them. But what Thomas says is that this doesn't apply because abortion is a controversial topic. 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? Little too spicy, little too controversial.

• 15:39Speaker 04

  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.

• 15:53Peter Shamshiri?

  No. If there's a poster requirement, for example, saying it's illegal to hire undocumented workers in this facility, right? You think Clarence Thomas says, no, immigration's too controversial? No, come on.

• 16:08Speaker 04

  It's a hot-button issue.

• 16:10Peter Shamshiri?

  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. 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."

• 16:53Peter Shamshiri?

  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.

• 17:19Speaker 04

  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, obviously, it's against their interest. They still have to do it.

• 17:31Peter Shamshiri?

  Right. Gambling websites have to be like, hey, if you have a gambling problem, call this number, right?

• 17:37Speaker 04

  Yeah.

• 17:37Peter Shamshiri?

  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?

• 18:22Speaker 04

  Yeah, yeah. Little cushion for them. Little kiss on the lips. Yeah.

• 18:26Peter Shamshiri?

  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.

• 18:38Speaker 04

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

• 18:41Peter Shamshiri?

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

• 19:02Peter Shamshiri?

  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?

• 19:14Speaker 04

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

• 19:18Peter Shamshiri?

  Right.

• 19:19Speaker 04

  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.

• 19:27Peter Shamshiri?

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

• 19:32Speaker 04

  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.

• 19:43Peter Shamshiri?

  Right.

• 19:43Speaker 04

  And could be defined as such reasonably under the law, and Thomas just gets to call it hypothetical.

• 19:50Peter Shamshiri?

  Right. In no other context would anyone on the right find this acceptable, where it's just like, like, we're gonna set up a fake medical center.

• 19:59Speaker 04

  Yeah.

• 20:00Peter Shamshiri?

  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,

• 20:29Speaker 04

  Yeah.

• 20:29Peter Shamshiri?

  This is ridiculous. In any other context, it's, it's completely ridiculous.

• 20:33Speaker 04

  It doesn't make sense.

• 20:34Peter Shamshiri?

  But when it comes to abortion, they're like, well, free speech. Free speech.

• 20:39Speaker 04

  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, add- 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

• 21:23Speaker 04

  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.

• 21:54Peter Shamshiri?

  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,

• 22:34Speaker 04

  Yeah.

• 22:34Peter Shamshiri?

  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?

• 22:50Speaker 04

  Right.

• 22:50Peter Shamshiri?

  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.

• 23:06Peter Shamshiri?

  I mean, you don't see this anywhere else, right? Like, if your supplements are not FDA approved, you have to reveal that.

• 23:14Speaker 04

  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

• 23:59Speaker 04

  or explain that a certain procedure or something is available to somebody, but personally doesn't agree with that procedure.

• 24:07Peter Shamshiri?

  Right.

• 24:07Speaker 04

  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, healthcare choice.

• 24:20Peter Shamshiri?

  Yeah, I mean, again, it's, 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?

• 24:36Speaker 04

  Yep.

• 24:36Peter Shamshiri?

  There's required disclosures. That could be viewed as discrimination against people who oppose those laws, right?

• 24:42Speaker 04

  Yes.

• 24:43Peter Shamshiri?

  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.

• 25:25Speaker 04

  Yeah, that's what they want to do.

• 25:26Peter Shamshiri?

  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.

• 25:38Speaker 04

  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.

• 25:55Peter Shamshiri?

  Quaint time at the Supreme Court.

• 25:57Speaker 04

  I know. What an interesting time. Now, the dissent, I would say, you know, it's, 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, is not relying on facts or, 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. The court struck them down.

• 26:35Speaker 04

  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."

• 26:54Peter Shamshiri?

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

• 26:58Speaker 04

  Exactly, exactly. And, right, a controversial compelled speech, you know?

• 27:04Peter Shamshiri?

  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.

• 27:15Speaker 04

  Right, right.

• 27:16Peter Shamshiri?

  And it's the same as a fully grown person. And God is real.

• 27:20Speaker 04

  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. 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 runaround on somebody's consent. Yeah, right.

• 27:42Speaker 04

  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,

• 28:23Speaker 04

  and also provide information about agencies that could provide adoption services. 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. So, for example, after Planned Parenthood v. Casey,

• 29:07Speaker 04

  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. 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.

• 29:46Peter Shamshiri?

  Right.

• 29:46Speaker 04

  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.

• 30:03Peter Shamshiri?

  Mm-hmm, mm-hmm.

• 30:04Speaker 04

  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.

• 30:41Peter Shamshiri?

  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.

• 31:01Speaker 04

  Right.

• 31:01Peter Shamshiri?

  Even if those doctors don't agree with that, which they probably don't, because it's not really true.

• 31:07Speaker 04

  It's so stupid.

• 31:09Peter Shamshiri?

  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.

• 31:20Speaker 04

  Yes.

• 31:21Peter Shamshiri?

  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.

• 31:45Peter Shamshiri?

  But when it applies to an abortion provider, that's informed consent. That's just, that's just the medical system working.

• 31:52Speaker 04

  Exactly. Breyer kind of ends the dissent, you know, rounds out the dissent with points about other, you know, First Amendment application 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 Zotterer, 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?

• 32:32Peter Shamshiri?

  Yeah.

• 32:33Speaker 04

  And the court upheld that.

• 32:34Peter Shamshiri?

  It's fucking bullshit, dude.

• 32:36Speaker 04

  I fucking hate it. It's viewpoint discrimination.

• 32:39Peter Shamshiri?

  The only type of discrimination I believe in.

• 32:42Speaker 04

  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.

• 32:55Peter Shamshiri?

  Right.

• 32:56Speaker 04

  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.

• 33:27Peter Shamshiri?

  Right. And that's the other side of free speech.

• 33:29Speaker 04

  Yes.

• 33:29Peter Shamshiri?

  There are people listening and the information that they want to receive and should receive.

• 33:38Peter Shamshiri?

  Those are factors as well, right? 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. Yes. 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

• 34:19Peter Shamshiri?

  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? 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

• 35:02Peter Shamshiri?

  services, but combating operations that are rife with fraud and misinformation. 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? The sort of remarkable thing is that if California passed a law saying, hey, you can't lie Yes.

• 35:46Peter Shamshiri?

  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. That way, whatever lies you tell, at least the person has enough information,

• 36:11Speaker 04

  Yeah.

• 36:12Peter Shamshiri?

  perhaps, to be like, oh, maybe I should seek advice elsewhere. I was kind of bothered to see the dissent not even mention this.

• 36:20Speaker 04

  Yeah.

• 36:20Peter Shamshiri?

  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.

• 36:33Speaker 04

  Yeah, and I, 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?

• 36:47Peter Shamshiri?

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

• 36:49Speaker 04

  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. Yeah, one more point about bullshit. So, Thomas and the Majority has said things like,

• 37:31Speaker 04

  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, 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, and viewpoint discrimination. Breyer points out in dissent, there is absolutely no evidence in the record, top to bottom,

• 38:16Speaker 04

  bottom to top, that it was Only applied to anti-abortion clinics or disproportionately

• 38:22Peter Shamshiri?

  Right.

• 38:23Speaker 04

  Applied to anti-abortion clinics. And so not only do they green light 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.

• 38:38Peter Shamshiri?

  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. Are we? Are we? Or is it that you're not a licensed medical provider?

• 38:57Speaker 04

  Shut up.

• 38:58Peter Shamshiri?

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

• 39:03Speaker 04

  Yeah.

• 39:04Peter Shamshiri?

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

• 39:12Speaker 04

  Yeah.

• 39:13Peter Shamshiri?

  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.

• 39:29Speaker 04

  Yeah.

• 39:30Peter Shamshiri?

  Designed top to bottom.

• 39:31Speaker 04

  Yeah.

• 39:32Peter Shamshiri?

  Top to bottom.

• 39:33Speaker 04

  Yeah.

• 39:33Peter Shamshiri?

  To trick people who are looking for medical services.

• 39:36Speaker 04

  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.

• 39:45Peter Shamshiri?

  Yeah, you had like Trump v. Hawaii.

• 39:46Speaker 04

  Yeah.

• 39:47Peter Shamshiri?

  In this era, you know? There was definitely a moment where, like, you look back and it all starts to click into place. Right?

• 39:55Speaker 04

  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?

• 40:19Peter Shamshiri?

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

• 40:25Speaker 04

  Where is he?

• 40:25Peter Shamshiri?

  We'll have to have a Zoom, you know?

• 40:27Speaker 04

  Yeah.

• 40:27Peter Shamshiri?

  We'll have to do a special episode.

• 40:31Speaker 04

  Little fiesta.

• 40:32Peter Shamshiri?

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

• 40:36Speaker 04

  Like a New York Times obituary, yeah.

• 40:38Peter Shamshiri?

  Yeah.

• 40:38Speaker 04

  Yeah, I got lots to say right now.

• 40:41Peter Shamshiri?

  That's, that's just good journalism, you know?

• 40:44Speaker 04

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

• 40:48Peter Shamshiri?

  All right, he'll be 89 this year. Tick tock, tick tock.

• 40:53Speaker 04

  It's gotta be coming. It's gotta be coming.

• 40:59Peter Shamshiri?

  Next week, McCutcheon v FEC.

• 41:01Speaker 04

  Maybe.

• 41:03Peter Shamshiri?

  Maybe. Who knows, folks?

• 41:07Peter Shamshiri?

  You have to believe.

• 41:08Speaker 04

  Yeah.

• 41:08Peter Shamshiri?

  You have to believe you'll get McCutcheon v FEC. Or maybe, uh, 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 54pod. Subscribe to our Patreon. Patreon.com/54pod, all spelled out, for access to premium episodes, special events, our Slack, all sorts of shit. We will see you next week.

• 41:47Speaker 04

  Bye, love you.

• 42:06Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Neefat provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY. 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/54pod.