NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.
No. 16-1140
SUPREME COURT OF THE UNITED STATES
June 26, 2018
585 U. S. ____ (2018)
Argued March 20, 2018
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 16-1140. Argued March 20, 2018—Decided June 26, 2018
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) was enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services. The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose is to make sure that state residents know their rights and what health care services are available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals. Petitioners—two crisis pregnancy centers, one licensed and one unlicensed, and an organization of crisis pregnancy centers—filed suit. They alleged that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed. Holding that petitioners could not show a likelihood of success on the merits, the court concluded that the licensed notice survived a lower level of scrutiny applicable to regulations of “professional speech,” and that the unlicensed notice satisfied any level of scrutiny.
Held:
1. The licensed notice likely violates the First Amendment. Pp. 6–17.
(a) Content-based laws “target speech based on its communica-
(b) Although the licensed notice is content-based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” But this Court has never recognized “professional speech” as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals. The Court has afforded less protection for professional speech in two circumstances—where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech,” see, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651, and where States regulate professional conduct that incidentally involves speech, see, e.g., Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456. Neither line of precedents is implicated here. Pp. 7–14.
(1) Unlike the rule in Zauderer, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which . . . services will be available,” 471 U. S., at 651. California‘s notice requires covered clinics to disclose information about state-sponsored services—including abortion, hardly an “uncontroversial” topic. Accordingly, Zauderer has no application here. P. 9.
(2) Nor is the licensed notice a regulation of professional conduct that incidentally burdens speech. The Court‘s precedents have long drawn a line between speech and conduct. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, for example, the joint opinion rejected a free-speech challenge to an informed-consent law requiring physicians to “give a woman certain information as part of obtaining her consent to an abortion,” id., at 884. But the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. And many other facilities providing the exact same services, such as general practice clinics, are not subject to the requirement. Pp. 10–11.
(3) Outside of these two contexts, the Court‘s precedents have long protected the First Amendment rights of professionals. The Court
(c) Although neither California nor the Ninth Circuit have advanced a persuasive reason to apply different rules to professional speech, the Court need not foreclose the possibility that some such reason exists because the licensed notice cannot survive even intermediate scrutiny. Assuming that California‘s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it. The notice is “wildly underinclusive,” Entertainment Merchants Assn., supra, at 802, because it applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding several other types of clinics that also serve low-income women and could educate them about the State‘s services. California could also inform the women about its services “without burdening a speaker with unwanted speech,” Riley, supra, at 800, most obviously through a public-information campaign. Petitioners are thus likely to succeed on the merits of their challenge. Pp. 14–17.
2. The unlicensed notice unduly burdens protected speech. It is unnecessary to decide whether Zauderer‘s standard applies here, for even under Zauderer, a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U. S., at 651. Disclosures must remedy a harm that is “potentially real not purely hypothetical,” Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Ac-countancy, 512 U. S. 136, 146, and can extend “no broader than reasonably necessary,” In re R. M. J., 455 U. S. 191, 203. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” The only justification put forward by the state legislature was ensuring that pregnant women know when they are receiving medical care from licensed professionals, but California denied that the justification for the law was that women did not know what kind of facility they are entering when they go to a crisis pregnancy center. Even if the State had presented a nonhypothetical justification, the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State‘s informational interest. It requires covered facilities to post California‘s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services, but not those that provide, e.g., nonprescription birth control. Such speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” Sorrell, supra, at 580. For these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. Pp. 17–20.
839 F. 3d 823, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ROBERTS, C. J., and ALITO and GORSUCH, JJ., joined. BREYER, J., filed dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 16–1140
NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v. XAVIER BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE THOMAS delivered the opinion of the Court.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices.
I
A
The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers—according to a report commissioned by the California State Assembly, App. 86—are “pro-life (largely Christian belief-based) organizations that offer a limited
1
The first notice requirement applies to “licensed covered facilit[ies].”
“(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women.
“(2) The facility provides, or offers counseling about, contraception or contraceptive methods.
“(3) The facility offers pregnancy testing or pregnancy diagnosis.
“(4) The facility advertises or solicits patrons with of-
fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(5) The facility offers abortion services.
“(6) The facility has staff or volunteers who collect health information from clients.” Ibid.
The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are “enrolled as a Medi-Cal provider” and participate in “the Family Planning, Access, Care, and Treatment Program” (Family PACT program).
If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site.
The stated purpose of the FACT Act, including its licensed notice requirement, is to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” 2015 Cal. Legis. Serv. Ch. 700, §2 (A. B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that “thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery.” §1(b). Citing the “time sensitive” nature of pregnancy-related decisions, §1(c), the Legislature concluded that requiring licensed facilities to inform patients themselves would be “[t]he most effective” way to convey this information, §1(d).
2
The second notice requirement in the FACT Act applies to “unlicensed covered facilit[ies].”
“(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women.
“(2) The facility offers pregnancy testing or pregnancy diagnosis.
“(3) The facility advertises or solicits patrons with of-
fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(4) The facility has staff or volunteers who collect health information from clients.” Ibid.
Clinics operated by the United States and licensed primary care clinics enrolled in Medi-Cal and Family PACT are excluded.
Unlicensed covered facilities must provide a government-drafted notice stating that “[t]his 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 services.”
B
After the Governor of California signed the FACT Act, petitioners—a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers—filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary
The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life Advocates v. Harris, 839 F. 3d 823, 845 (2016). After concluding that petitioners’ challenge to the FACT Act was ripe,1 id., at 833, the Ninth Circuit held that petitioners could not show a likelihood of success on the merits. It concluded that the licensed notice survives the “lower level of scrutiny” that applies to regulations of “professional speech.” Id., at 833–842. And it concluded that the unlicensed notice satisfies any level of scrutiny. See id., at 843–844.
We granted certiorari to review the Ninth Circuit‘s decision. 583 U. S. ___ (2017). We reverse with respect to both notice requirements.
II
We first address the licensed notice.2
A
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 6). As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Ibid. This stringent standard reflects the fundamental principle that govern-
The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988); accord, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974). Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option—the licensed notice plainly “alters the content” of petitioners’ speech. Riley, supra, at 795.
B
Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F. 3d, at 839. Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. See, e.g., King v. Governors of New Jersey, 767 F. 3d 216, 232 (CA3 2014); Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014); Moore-King v. County of Chesterfield, 708 F. 3d 560, 568–570 (CA4 2013). These courts define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” Id., at 569; see also, King, supra, at
But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 804 (1996) (KENNEDY, J., concurring in part, concurring in judgment in part, and dissenting in part). And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” United States v. Alvarez, 567 U. S. 709, 722 (2012) (plurality opinion). This Court‘s precedents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence . . . of a long (if heretofore unrecognized) tradition‘” to that effect. Ibid. (quoting Brown v. Entertainment Merchants Assn., 564 U. S. 786, 792 (2011)).
This Court‘s precedents do not recognize such a tradition for a category called “professional speech.” This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz,P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978). Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech. See, e.g., id., at 456; Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 884 (1992) (opinion of O‘Connor, KENNEDY, and Souter, JJ.). But neither line of precedents is implicated here.
1
This Court‘s precedents have applied a lower level of scrutiny to laws that compel disclosures in certain contexts. In Zauderer, for example, this Court upheld a rule requiring lawyers who advertised their services on a contingency-fee basis to disclose that clients might be required to pay some fees and costs. 471 U. S., at 650–653. Noting that the disclosure requirement governed only “commercial advertising” and required the disclosure of “purely factual and uncontroversial information about the terms under which . . . services will be available,” the Court explained that such requirements should be upheld unless they are “unjustified or unduly burdensome.” Id., at 651.
The Zauderer standard does not apply here. Most obviously, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which . . . services will be available.” 471 U. S., at 651; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) (explaining that Zauderer does not apply outside of these circumstances). The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services—including abortion, anything but an “uncontroversial” topic. Accordingly, Zauderer has no application here.
In addition to disclosure requirements under Zauderer, this Court has upheld regulations of professional conduct that incidentally burden speech. “[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011), and professionals are no exception to this rule, see Ohralik, supra, at 456. Longstanding torts for professional malpractice, for example, “fall within the traditional purview of state regulation of professional conduct.” NAACP v. Button, 371 U. S. 415, 438 (1963); but cf. id., at 439 (“[A] State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights“). While drawing the line between speech and conduct can be difficult, this Court‘s precedents have long drawn it, see, e.g., Sorrell, supra, at 567; Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949), and the line is “long familiar to the bar,” United States v. Stevens, 559 U. S. 460, 468 (2010) (quoting Simon & Schuster, Inc. v. Members of N. Y State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)).
In Planned Parenthood of Southeastern Pa. v. Casey, for example, this Court upheld a law requiring physicians to obtain informed consent before they could perform an abortion. 505 U.S., at 884 (joint opinion of O‘Connor, KENNEDY, and Souter, JJ.). Pennsylvania law required physicians to inform their patients of “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child.‘” Id., at 881. The law also required physicians to inform patients of the availability of printed materials from the State, which provided information about the child and various forms of assistance. Ibid.
The joint opinion in Casey rejected a free-speech challenge to this informed-consent requirement. Id., at 884. It
The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see
3
Outside of the two contexts discussed above—disclosures under Zauderer and professional conduct—this Court‘s precedents have long protected the First Amendment rights of professionals. For example, this Court has
The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:
“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their
patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu‘s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201–202 (1994) (footnotes omitted).
Further, when the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.‘” McCullen v. Coakley, 573 U. S. ___, ___ (2014) (slip op., at 8–9). Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.
“Professional speech” is also a difficult category to define with precision. See Entertainment Merchants Assn., 564
C
In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it.
If California‘s goal is to educate low-income women about the services it provides, then the licensed notice is
The FACT Act also excludes, without explanation, federal clinics and Family PACT providers from the licensed-notice requirement. California notes that those clinics can enroll women in California‘s programs themselves, but California‘s stated interest is informing women that these services exist in the first place. California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics. In fact, the exempted clinics have long been able to enroll women in California‘s programs, but the FACT Act was premised on the notion that “thousands of women remain unaware of [them].” Cal. Legis. Serv., §1(b). If the goal is to maximize women‘s awareness of these programs, then it would seem that California would ensure that the places that can immediately enroll women also provide this information. The FACT Act‘s exemption for these clinics, which serve
Further, California could inform low-income women about its services “without burdening a speaker with unwanted speech.” Riley, 487 U. S., at 800. Most obviously, it could inform the women itself with a public-information campaign. See ibid. (concluding that a compelled disclosure was unconstitutional because the government could “itself publish . . . the disclosure“). California could even post the information on public property near crisis pregnancy centers. California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evidence to that effect. And regardless, a “tepid response” does not prove that an advertising campaign is not a sufficient alternative. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000). Here, for example, individuals might not have enrolled in California‘s services because they do not want them, or because California spent insufficient resources on the advertising campaign. Either way, California cannot co-opt the licensed facilities to deliver its message for it. “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.” Riley, supra, at 795; accord, Arizona Free Enterprise Club‘s Freedom Club PAC v. Bennett, 564 U. S. 721, 747 (2011).
In short, petitioners are likely to succeed on the merits of their challenge to the licensed notice. Contrary to the suggestion in the dissent, post, at 3–4 (opinion of BREYER, J.), we do not question the legality of health and safety warnings long considered permissible, or purely factual
and uncontroversial disclosures about commercial products.III
We next address the unlicensed notice. The parties dispute whether the unlicensed notice is subject to deferential review under Zauderer.3 We need not decide whether the Zauderer standard applies to the unlicensed notice. Even under Zauderer, a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U. S., at 651. Our precedents require disclosures to remedy a harm that is “potentially real not purely hypothetical,” Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 146 (1994), and to extend “no broader than reasonably necessary,” In re R. M. J., 455 U. S. 191, 203 (1982); accord, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433 U. S. 350, 384 (1977); cf. Zauderer, 471 U. S., at 649 (rejecting “broad prophylactic rules” in this area). Otherwise, they risk “chilling” protected speech. Id., at 651. Importantly, California has the burden to prove that the unlicensed notice is neither unjustified nor unduly burdensome. See Ibanez, 512 U. S., at 146. It has not met its burden.
We need not decide what type of state interest is sufficient to sustain a disclosure requirement like the unlicensed notice. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” Ibid. The only justification that the California Legislature put forward was ensuring that “preg
Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California‘s informational interest. It requires covered facilities to post California‘s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide “family planning” services and “contraception or contraceptive methods,”
The application of the unlicensed notice to advertisements demonstrates just how burdensome it is. The notice applies to all “print and digital advertising materials” by an unlicensed covered facility.
For all these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. California has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjustified and unduly burdensome under Zauderer. We express no view on the legality of a similar disclosure requirement that is better supported or less burdensome.
IV
We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
I join the Court‘s opinion in all respects.
This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. See ante, at 6, n. 2. The Court, in my view, is correct not to reach this question. It was not sufficiently developed, and the rationale for the Court‘s decision today suffices to resolve the case. And had the Court‘s analysis been confined to viewpoint discrimination, some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld.
It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State‘s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.
The California Legislature included in its official history the congratulatory statement that the Act was part of California‘s legacy of “forward thinking.” App. 38-39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
The petitioners ask us to consider whether two sections of a California statute violate the First Amendment. The first section requires licensed medical facilities (that provide women with assistance involving pregnancy or family planning) to tell those women where they might obtain help, including financial help, with comprehensive family planning services, prenatal care, and abortion. The second requires unlicensed facilities offering somewhat similar services to make clear that they are unlicensed. In my view both statutory sections are likely constitutional, and I dissent from the Court‘s contrary conclusions.
I
The first statutory section applies to licensed medical facilities dealing with pregnancy and which also provide specific services such as prenatal care, contraception counseling, pregnancy diagnosis, or abortion-related services.
The statute requires these facilities to post a notice in their waiting rooms telling their patients:
“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
§123472(a)(1) .
The petitioners here, a group of covered medical facilities that object to abortion for religious reasons, brought this case seeking an injunction against enforcement of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act on the ground that it violates the First Amendment on its face. The District Court denied a preliminary injunction, and the Court of Appeals affirmed. The majority now reverses the Court of Appeals on the ground that the petitioners have shown a likelihood of success on the merits, i.e., that the statute likely violates the petitioners’ free speech rights and is unconstitutional on its face.
A
Before turning to the specific law before us, I focus upon the general interpretation of the First Amendment that the majority says it applies. It applies heightened scrutiny to the Act because the Act, in its view, is “content based.” Ante, at 6-7. “By compelling individuals to speak a particular message,” it adds, “such notices ‘alte[r] the content of [their] speech.‘” Ante, at 7 (quoting Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988)) (alteration in original). “As a general matter,”
The majority recognizes exceptions to this general rule: It excepts laws that “require professionals to disclose factual, noncontroversial information in their commercial speech,” provided that the disclosure “relates to the services that [the regulated entities] provide.” Ante, at 8-9. It also excepts laws that “regulate professional conduct” and only “incidentally burden speech.” Ante, at 9-10.
This constitutional approach threatens to create serious problems. Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority‘s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered “content based,” for virtually every disclosure law requires individuals “to speak a particular message.” See Reed v. Town of Gilbert, 576 U. S. 155 (2015) (BREYER, J., concurring in judgment) (slip op., at 3) (listing regulations that inevitably involve content discrimination, ranging from securities disclosures to signs at petting zoos). Thus, the majority‘s view, if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk, depending on how broadly its exceptions are interpreted.
Many ordinary disclosure laws would fall outside the majority‘s exceptions for disclosures related to the professional‘s own services or conduct. These include numerous commonly found disclosure requirements relating to the medical profession. See, e.g.,
The majority, at the end of Part II of its opinion, perhaps recognizing this problem, adds a general disclaimer. It says that it does not “question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” Ante, at 16-17. But this generally phrased disclaimer would seem more likely to invite litigation than to provide needed limitation and clarification. The majority, for example, does not explain why the Act here, which is justified in part by health and safety considerations, does not fall within its “health” category. Ante, at 14; see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 882-884 (1992) (joint opinion of O‘Connor, KENNEDY, and Souter, JJ.) (reasoning that disclosures related to fetal development and childbirth are related to the health of a woman seeking an abortion). Nor does the majority opinion offer any reasoned basis that might help apply its disclaimer for distinguishing lawful from unlawful disclosures. In the absence of a reasoned explanation of the disclaimer‘s meaning and rationale, the disclaimer is unlikely to withdraw the invitation to litigation that the majority‘s general broad “content-based” test issues. That test invites courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic
Notably, the majority says nothing about limiting its language to the kind of instance where the Court has traditionally found the First Amendment wary of content-based laws, namely, in cases of viewpoint discrimination. “Content-based laws merit this protection because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint.” Reed, 576 U. S., at ___ (ALITO, J., concurring) (slip op., at 1). Accordingly, “[l]imiting speech based on its ‘topic’ or ‘subject‘” can favor “those who do not want to disturb the status quo.” Ibid. But the mine run of disclosure requirements do nothing of that sort. They simply alert the public about child seat belt laws, the location of stairways, and the process to have their garbage collected, among other things.
Precedent does not require a test such as the majority‘s. Rather, in saying the Act is not a longstanding health and safety law, the Court substitutes its own approach—without a defining standard—for an approach that was reasonably clear. Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution. Ever since this Court departed from the approach it set forth in Lochner v. New York, 198 U. S. 45 (1905), ordinary economic and social legislation has been thought to raise little constitutional concern. As Justice Brandeis wrote, typically this Court‘s function in such cases “is only to determine the reasonableness of the Legislature‘s belief in the existence of evils and in the effectiveness of the remedy provided.” New State Ice Co. v. Liebmann, 285 U. S. 262, 286-287 (1932) (dissenting opinion); see Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 486-488 (1955) (adopting the approach of Justice Brandeis).
Even during the Lochner era, when this Court struck down numerous economic regulations concerning industry, this Court was careful to defer to state legislative judgments concerning the medical profession. The Court took the view that a State may condition the practice of medicine on any number of requirements, and physicians, in exchange for following those reasonable requirements, could receive a license to practice medicine from the State. Medical professionals do not, generally speaking, have a right to use the Constitution as a weapon allowing them rigorously to control the content of those reasonable conditions. See, e.g., Dent v. West Virginia, 129 U. S. 114 (1889) (upholding medical licensing requirements); Hawker v. New York, 170 U. S. 189 (1898) (same); Collins v. Texas, 223 U. S. 288, 297-298 (1912) (recognizing the “right of the State to adopt a policy even upon medical matters concerning which there is difference of opinion and dispute“); Lambert v. Yellowley, 272 U. S. 581, 596 (1926) (“[T]here is no right to practice medicine which is not subordinate to the police power of the States“); Graves v. Minnesota, 272 U. S. 425, 429 (1926) (statutes “regulating
The Court, in justification, refers to widely accepted First Amendment goals, such as the need to protect the Nation from laws that “‘suppress unpopular ideas or information’ or inhibit the ‘marketplace of ideas in which truth will ultimately prevail.‘” Ante, at 12-13; see New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964). The concurrence highlights similar First Amendment interests. Ante, at 2. I, too, value this role that the First Amendment plays in an appropriate case. But here, the majority enunciates a general test that reaches far beyond the area where this Court has examined laws closely in the service of those goals. And, in suggesting that heightened scrutiny applies to much economic and social legislation, the majority pays those First Amendment goals a serious disservice through dilution. Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech.
B
Still, what about this specific case? The disclosure at issue here concerns speech related to abortion. It involves health, differing moral values, and differing points of view. Thus, rather than set forth broad, new, First Amendment principles, I believe that we should focus more directly upon precedent more closely related to the case at hand. This Court has more than once considered disclosure laws
I begin with Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). In that case the Court considered a city ordinance requiring a doctor to tell a woman contemplating an abortion about the
“status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth[, and] . . . ‘the particular risks associated with her own pregnancy and the abortion technique to be employed.‘” Id., at 442 (quoting Akron Codified Ordinances §1870.06(C) (1978)).
The ordinance further required a doctor to tell such a woman that “the unborn child is a human life from the moment of conception.” Akron, supra, at 444 (quoting Akron Codified Ordinances §1870.06(B)(3)).
The plaintiffs claimed that this ordinance violated a woman‘s constitutional right to obtain an abortion. And this Court agreed. The Court stated that laws providing for a woman‘s “informed consent” to an abortion were normally valid, for they helped to protect a woman‘s health. Akron, 462 U. S., at 443-444. Still, the Court held that the law at issue went “beyond permissible limits” because “much of the information required [was] designed not to inform the woman‘s consent but rather to persuade her to withhold it altogether.” Id., at 444. In the Court‘s view, the city had placed unreasonable “obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.” Id., at 445 (quoting Whalen v. Roe, 429 U. S. 589, 604, n. 33 (1977)) (alteration in original).
“‘There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.‘” Id., at 761 (quoting
18 Pa. Cons. Stat. §3208(a)(1) (1982) ).
The Court, as in Akron, held that the statute‘s information requirements violated the Constitution. They were designed “not to inform the woman‘s consent but rather to persuade her to withhold it altogether.” Thornburgh, supra, at 762 (quoting Akron, supra, at 444). In the Court‘s view, insistence on telling the patient about the availability of “medical assistance benefits” if she decided against an abortion was a “poorly disguised elemen[t] of discouragement for the abortion decision,” and the law was the “antithesis of informed consent.” Thornburgh, supra, at 763-764.
These cases, however, whatever support they may have
This time a joint opinion of the Court, in judging whether the State could impose these informational requirements, asked whether doing so imposed an “undue burden” upon women seeking an abortion. Casey, 505 U. S., at 882-883. It held that it did not. Ibid. Hence the statute was constitutional. Id., at 874. The joint opinion stated that the statutory requirements amounted to “reasonable measure[s] to ensure an informed choice, one which might cause the woman to choose childbirth over abortion.” Id., at 883. And, it “overruled” portions of the two cases, Akron and Thornburgh, that might indicate the contrary. Id., at 882.
In respect to overruling the earlier cases, it wrote:
“To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the ‘probable gestational age’ of the fetus, those cases go too far, are inconsistent with Roe‘s acknowledgment of an important interest in potential life, and are over
ruled.” Ibid.
The joint opinion specifically discussed the First Amendment, the constitutional provision now directly before us. It concluded that the statute did not violate the First Amendment. It wrote:
“All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician‘s First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U. S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U. S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.” Casey, 505 U. S., at 884.
Thus, the Court considered the State‘s statutory requirements, including the requirement that the doctor must inform his patient about where she could learn how to have the newborn child adopted (if carried to term) and how she could find related financial assistance. Id., at 881. To repeat the point, the Court then held that the State‘s requirements did not violate either the Constitution‘s protection of free speech or its protection of a woman‘s right to choose to have an abortion.
C
Taking Casey as controlling, the law‘s demand for evenhandedness requires a different answer than that perhaps suggested by Akron and Thornburgh. If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking
1
The majority tries to distinguish Casey as concerning a regulation of professional conduct that only incidentally burdened speech. Ante, at 10-11. Casey, in its view, applies only when obtaining “informed consent” to a medical procedure is directly at issue.
This distinction, however, lacks moral, practical, and legal force. The individuals at issue here are all medical personnel engaging in activities that directly affect a woman‘s health—not significantly different from the doctors at issue in Casey. After all, the statute here applies only to “primary care clinics,” which provide “services for the care and treatment of patients for whom the clinic accepts responsibility.”
The majority contends that the disclosure here is unrelated to a “medical procedure,” unlike that in Casey, and so the State has no reason to inform a woman about alternatives to childbirth (or, presumably, the health risks of childbirth). Ante, at 11. Really? No one doubts that choosing an abortion is a medical procedure that involves certain health risks. See Whole Woman‘s Health v. Hellerstedt, 579 U. S. 582 (2016) (slip op., at 30) (identifying the mortality rate in Texas as 1 in 120,000 to 144,000 abortions). But the same is true of carrying a child to term and giving birth. That is why prenatal care often involves testing for anemia, infections, measles, chicken pox, genetic disorders, diabetes, pneumonia, urinary tract infections, preeclampsia, and hosts of other medical conditions. Childbirth itself, directly or through pain management, risks harms of various kinds, some connected with caesarean or surgery-related deliveries, some related to more ordinary methods of delivery. Indeed, nationwide “childbirth is 14 times more likely than abortion to result in” the woman‘s death. Ibid. Health considerations do not favor disclosure of alternatives and risks associated with the latter but not those associated with the former.
In any case, informed consent principles apply more broadly than only to discrete “medical procedures.” Prescription drug labels warn patients of risks even though
The majority also finds it “[t]ellin[g]” that general practice clinics—i.e., paid clinics—are not required to provide the licensed notice. Ante, at 11. But the lack-of-information problem that the statute seeks to ameliorate is a problem that the State explains is commonly found among low-income women. See Brief for State Respondents 5-6. That those with low income might lack the time to become fully informed and that this circumstance might prove disproportionately correlated with income is not intuitively surprising. Nor is it surprising that those with low income, whatever they choose in respect to pregnancy, might find information about financial assistance particularly useful. There is “nothing inherently suspect” about this distinction, McCullen v. Coakley, 573 U. S. 464 (2014) (slip op., at 15), which is not “based on the content of [the advocacy] each group offers,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658-659 (1994), but upon the patients the group generally serves and the needs of that population.
2
Separately, finding no First Amendment infirmity in the licensed notice is consistent with earlier Court rulings. For instance, in Zauderer we upheld a requirement that
The majority concludes that Zauderer does not apply because the disclosure “in no way relates to the services that licensed clinics provide.” Ante, at 9. But information about state resources for family planning, prenatal care, and abortion is related to the services that licensed clinics provide. These clinics provide counseling about contraception (which is a family-planning service), ultrasounds or pregnancy testing (which is prenatal care), or abortion.
Regardless, Zauderer is not so limited. Zauderer turned on the “material differences between disclosure requirements and outright prohibitions on speech.” 471 U. S., at 650. A disclosure requirement does not prevent speakers “from conveying information to the public,” but “only require[s] them to provide somewhat more information than they might otherwise be inclined to present.” Ibid. Where a State‘s requirement to speak “purely factual and uncontroversial information” does not attempt “to ‘pre
In Zauderer, the Court emphasized the reason that the
Accordingly, the majority‘s reliance on cases that prohibit rather than require speech is misplaced. Ante, at 12-14. I agree that “‘in the fields of medicine and public health, information can save lives,‘” but the licensed disclosure serves that informational interest by requiring clinics to notify patients of the availability of state resources for family planning services, prenatal care, and abortion, which—unlike the majority‘s examples of norma
Of course, one might take the majority‘s decision to mean that speech about abortion is special, that it involves in this case not only professional medical matters, but also views based on deeply held religious and moral beliefs about the nature of the practice. To that extent, arguably, the speech here is different from that at issue in Zauderer. But assuming that is so, the law‘s insistence upon treating like cases alike should lead us to reject the petitioners’ arguments that I have discussed. This insistence, the need for evenhandedness, should prove particularly weighty in a case involving abortion rights. That is because Americans hold strong, and differing, views about the matter. Some Americans believe that abortion involves the death of a live and innocent human being. Others believe that the ability to choose an abortion is “central to personal dignity and autonomy,” Casey, 505 U. S., at 851, and note that the failure to allow women to choose an abortion involves the deaths of innocent women. We have previously noted that we cannot try to adjudicate who is right and who is wrong in this moral debate. But we can do our best to interpret American constitutional law so that it applies fairly within a Nation whose citizens
D
It is particularly unfortunate that the majority, through application of so broad and obscure a standard, see supra, at 2-7, declines to reach remaining arguments that the Act discriminates on the basis of viewpoint. Ante, at 6, n. 2. The petitioners argue that it unconstitutionally discriminates on the basis of viewpoint because it primarily covers facilities with supporters, organizers, and employees who are likely to hold strong pro-life views. They contend that the statute does not cover facilities likely to hold neutral or pro-choice views, because it exempts facilities that enroll patients in publicly funded programs that include abortion. In doing so, they say, the statute unnecessarily imposes a disproportionate burden upon facilities with pro-life views, the very facilities most likely to find the statute‘s references to abortion morally abhorrent. Brief for Petitioners 31-37.
The problem with this argument lies in the record. Numerous amicus briefs advance the argument. See, e.g., Brief for Scharpen Foundation, Inc., et al. as Amici Curiae 6-10; Brief for American Center for Law & Justice et al. as Amici Curiae 7-13. Some add that women who use facilities that are exempt from the statute‘s requirements (because they enroll patients in two California state-run medical programs that provide abortions) may still need the information provided by the disclosure, Brief for CATO Institute as Amicus Curiae 15, a point the majority adopts
The petitioners, however, did not develop this point in the record below. They simply stated in their complaint that the Act exempts “facilities which provide abortion services, freeing them from the Act‘s disclosure requirements, while leaving pro-life facilities subject to them.” App. to Pet. for Cert. 104a. And in the District Court they relied solely on the allegations of their complaint, provided no supporting declarations, and contended that discovery was unnecessary. Id., at 47a, 50a, 68a. The District Court concluded that the reason for the Act‘s exemptions was that those clinics “provide the entire spectrum of services required of the notice,” and that absent discovery, “there is no evidence to suggest the Act burdens only” pro-life conduct. Id., at 68a. Similarly, the petitioners pressed the claim in the Court of Appeals. Id., at 20a-22a. But they did not supplement the record. Consequently, that court reached the same conclusion. Given the absence of evidence in the record before the lower courts, the “viewpoint discrimination” claim could not justify the issuance of a preliminary injunction.
The second statutory provision covers pregnancy-related facilities that provide women with certain medical-type services (such as obstetric ultrasounds or sonograms, pregnancy diagnosis, counseling about pregnancy options, or prenatal care), are not licensed as medical facilities by the State, and do not have a licensed medical provider on site.
The majority does not question that the State‘s interest (ensuring that “pregnant women in California know when they are getting medical care from licensed professionals“) is the type of informational interest that Zauderer encompasses. Ante, at 5, 17. Nor could it. In Riley, 487 U. S. 781, the Court noted that the
Nevertheless, the majority concludes that the State‘s interest is “purely hypothetical” because unlicensed clinics provide innocuous services that do not require a medical license. Ante, at 17-18. To do so, it applies a searching
There is no basis for finding the State‘s interest “hypothetical.” The legislature heard that information-related delays in qualified healthcare negatively affect women seeking to terminate their pregnancies as well as women carrying their pregnancies to term, with delays in qualified prenatal care causing life-long health problems for infants. Reproductive FACT Act: Hearing on Assembly B. 775 before the Senate Health Committee, 2015 Cal. Leg. Sess. Even without such testimony, it is “self-evident” that patients might think they are receiving qualified medical care when they enter facilities that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care. Milavetz, supra, at 251. The State‘s conclusion to that effect is certainly reasonable.
The majority also suggests that the Act applies too broadly, namely, to all unlicensed facilities “no matter what the facilities say on site or in their advertisements.” Ante, at 18. But the Court has long held that a law is not unreasonable merely because it is overinclusive. For instance, in Semler the Court upheld as reasonable a state law that prohibited licensed dentists from advertising that their skills were superior to those of other dentists. 294 U. S., at 609. A dentist complained that he was, in fact,
Relatedly, the majority suggests that the Act is suspect because it covers some speakers but not others. Ante, at 18-19. I agree that a law‘s exemptions can reveal viewpoint discrimination (although the majority does not reach this point). “‘[A]n exemption from an otherwise permissible regulation of speech may represent a governmental “attempt to give one side of a debatable public question an advantage in expressing its views to the people.“‘” McCullen, 573 U. S., at 485 (quoting City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994)). Such speaker-based laws warrant heightened scrutiny “when they reflect the Government‘s preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say).” Turner Broadcasting System, Inc., 512 U. S., at 658. Accordingly, where a law‘s exemptions “facilitate speech on only one side of the abortion debate,” there is a “clear form of viewpoint discrimination.” McCullen, supra, at 488.
There is no cause for such concern here. The Act does not, on its face, distinguish between facilities that favor pro-life and those that favor pro-choice points of view. Nor is there any convincing evidence before us or in the courts below that discrimination was the purpose or the effect of the statute. Notably, California does not single out pregnancy-related facilities for this type of disclosure requirement. See, e.g.,
Finally, the majority concludes that the Act is overly burdensome. Ante, at 19. I agree that “unduly burdensome disclosure requirements might offend the First Amendment.” Zauderer, 471 U. S., at 651. But these and similar claims are claims that the statute could be applied unconstitutionally, not that it is unconstitutional on its face. Compare New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988) (a facial overbreadth challenge must show “from actual fact” that a “substantial number of instances exist in which the Law cannot be applied constitutionally“), with Chicago v. Morales, 527 U. S. 41, 74 (1999) (Scalia, J., dissenting) (an as-applied challenge asks whether “the statute is unconstitutional as applied to this party, in the circumstances of this case“). And it will be open to the petitioners to make these claims if and when the State threatens to enforce the statute in this way. But facial relief is inappropriate here, where the petitioners “fail” even “to describe [these] instances of arguable overbreadth of the contested law,” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449-450, n. 6 (2008), where “[n]o record was made in this respect,” and where the petitioners thus have not shown “from actual fact” that a “substantial number of instances exist in which the Law cannot be applied constitutionally,” New York State Club Assn., supra, at 14.
For instance, the majority highlights that the statute
* * *
For these reasons I would not hold the California statute unconstitutional on its face, I would not require the District Court to issue a preliminary injunction forbidding its enforcement, and I respectfully dissent from the majority‘s contrary conclusions.