June 26, 2018

The Supreme Court is about to announce new decisions — probably something big today.

Keep an eye on the SCOTUSblog live blog!
A reminder that we are expecting the justices to announce opinions in order of reverse seniority. So if we are expecting Alito to write Janus and Breyer to write Fla v. GA, we would get Janus first if those were the opinions for today. Roberts always goes last, and Thomas (who could have NIFLA) would be next to last.
UPDATE: First is Thomas with NIFLA. 5-4.
This case is a First Amendment challenge to a California law that imposes two different sets of requirements on crisis pregnancy centers – non-profits, often affiliated with Christian groups, that oppose abortion. First, it requires centers that are licensed to provide medical services to inform their patients that free or low-cost abortions are available. Second, it requires centers that are not licensed to provide medical services to include in their advertisements disclaimers to make clear that their services do not include medical help.

The court reverses on both notice requirements.
Here's the opinion PDF.

Here's the part about Communists and Nazis:
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).
Justice Kennedy has a short concurring opinion that is joined by Roberts, Alito, and Gorsuch. Excerpt:
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.
Breyer is reading his dissent. I'm reading it too. Excerpt:
Abortion is a controversial topic and a source of normative debate, but the availability of state resources is not a normative statement or a fact of debatable truth. The disclosure includes information about resources available should a woman seek to continue her pregnancy or terminate it, and it expresses no official preference for one choice over the other. Similarly, the majority highlights an interest that often underlies our decisions in respect to speech prohibitions—the market- place of ideas. But that marketplace is fostered, not hin- dered, by providing information to patients to enable them to make fully informed medical decisions in respect to their pregnancies.

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... 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 strongly hold these different points of view. That is one reason why it is particularly important to interpret the First Amendment so that it applies evenhandedly as between those who disagree so strongly. For this reason too a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion....
UPDATE: Trump just won on the travel ban. Roberts writes. New post up for discussion on that. Keep this comments thread for the abortion-speech case.

36 comments:

Ignorance is Bliss said...

The court reverses on both notice requirements.

Reverses what? What was the lower-court ruling being reversed?

hombre said...

Free or low cost abortions? Tax dollars at work in California slaughtering preborn babies?

The land of milk and honey.

TRISTRAM said...

Reversed the denial of injunctions (i.e., the centers had to start the notifications before the the lawsuits were done). SCOTUS said they were likely to win (based on the rationale, I think they told the District and 9th they better win), so the injunction should have been granted.

clint said...

"Travel ban" reversed and remanded, 5-4.

What's the over-under on how long it takes for a federal judge to reinstate the injunction on slightly different grounds?

Birches said...

If Breyer was right, the State would make regular doctors offices post the notices too.

Thank goodness for Gorsuch.

rehajm said...

Court says Proclamation is "squarely within the scope of Presidential authority under the INA."

Four justices dissent citing 'but we don't like it'.

David Begley said...

Did Breyer spell all the words correctly?

clint said...

I've only read the syllabus, but this reads like the issue is over. The authority delegated to the President under §1182(f) is confirmed. They even addressed the Establishment Clause argument.

So... what are the implications of this ruling for the President's authority to deal with the massive wave of child-accompanied asylum seekers at the southern border?

clint said...

Thomas's concurrence is interesting. He wants to put a stop to district courts issuing universal injunctions.

He concludes: "In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

Critter said...

Breyer’s equivalency between abortions and adoptions is odious. Does anyone have a deeply and long held religious objection to adoption? Abortion is life and death, and life is a fundamental value to the Christian faith. So no one is forcing anyone to speak in regards to adoption, but they California law does just that in relation to abortion.

Just shows how distorted Breyer’s worldview is.

Lloyd W. Robertson said...

Seems like a bit of a red herring to say California was trying to control speech between physicians and patients. The whole argument only makes sense if anti-abortion clinics are using speech to reflect their religious views (or traditional views that can be traced to religion), and it is this kind of speech that they want the state to avoid regulating. It is not necessarily for the health benefit of women, as determined by a physician, to avoid mentioning the option of abortion. If it is religious speech, and what religious people can be forced to say or not say,then we are back to cakes and gay marriage again.

damikesc said...

That the free speech case was 5-4 is DEEPLY ominous for that right in the future. It shouldve been an easy 9-0.

mccullough said...

Breyer is upset because five people’s views on abortion differ from his.

I’d say the majority opinion was an activist response to the activism in Roe and Casey.

The state law requiring health care professionals to notify pregnant women that abortion is always an option would be fine if there were no constitutional right to abortion made up. But once you start making up rights, you have to start making up other rights to counter balance them. I love when the four conservatives and Kennedy make shit up. The left thought The Court was a one-way ratchet. But it’s just as easy to make up counter rights. Live with it.

n.n said...
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n.n said...

The Twilight Amendment takes a hit, but the fetuses, offspring, conventionally known as babies, will still be aborted, recycled, cannibalized, Planned on schedule. Still, this is positive progress, a conservation of principles, there will be no government coercion to endorse the wicked solution, the final solution, today. The "good" American population does not progress. Babies, 1. Humans, 1. Abortionists, 0.

n.n said...

Notifications that were the equivalent of endorsement. But at least there was universal medical care and the trains were punctual.

rhhardin said...

Juno (2007) (on phone)
Yes, hello, I need to procure a hasty abortion?

MayBee said...

I am pro-choice.

I have friends who are pro-choice who actually go and protest the crisis pregnancy centers. I'm not sure why. I guess they think women are being tricked into not getting abortion. These are compassionate people, generally, who apparently can't imagine not everybody just wants to get an abortion without seeing what their options are.

MayBee said...

clint- that is interesting, and I agree with him.

darrenoia said...

If it's all about distributing information, as Breyer, contends, then surely California ought to included in the law a requirement that Planned Parenthood and other abortion centers inform women of the potential benefits of giving a child up for adoption, or of raising the child herself.

Greg P said...

The crises pregnancy centers are non-profit organizations set up by pro-life people to advance a pro-life agenda by helping people with their pregnancies, so they don't feel trapped into having an abortion.

For Breyer to compare forcing those people to tell about abortion options, to laws forcing abortion doctors to tell people facts about the abortion they're contemplating having, is utterly ludicrous.

Now, if someone sets up an abortion clinic because they want more abortions, and gives them away for free, because they're explicitly pro-abortion, not just pro-choice, THAT would be an interesting counter-suit. but, even in that case, we have the "people who are chasing not to do something" on one side, and "people who are chasing to do something" on the other.

And it's far more legitimate to regulate people who are acting, than to regulate people who are not acting.

Mark said...

To show you how extreme the pro-abortionists are (and anyone protesting a pro-life pregnancy center is pro-abortion, not "pro-choice") --

D.C. is currently considering a bill that would require pro-life pregnancy centers and pro-life medical clinics to employ people that perform abortions or otherwise advocate for abortion, asserting that it is "wrongful discrimination" to refuse to hire or continue to employ them.

n.n said...
This comment has been removed by the author.
n.n said...

The difference between selective-child (Pro-Choice) and one-child (single-Choice) is one of degrees, as well as relative advocacy and activism. Both offer the Choice of summary death for a wholly innocent human life without a voice to protest or arms to resist. The alternative is to recognize the life of the mother and fetus, offspring, conventionally known as baby, and reach the rational conclusion that there must be reconciliation. There are edge cases that are extrapolated (e.g. NYT re accessory to elective abortion) to justify an unprecedented violation of human rights. However, Pro-Choice is two choices too late, and the collateral damage of its doctrine of selective and opportunistic (i.e. bigotry or sanctimonious hypocrisy) is not limited to the privacy of the abortion chambers and the silence of their immediate victims.

Vance said...

I think the best part is that Thomas compared California's government to Nazis and Communists.

I mean, who can tell the difference, right?

readering said...

Breyer expected to issue one of two remaining opinions tomorrow (based on Roberts-Ginsburg assignment practices). His clerks must be exhausted proofreading (and eliminating foreign words?).

readering said...

I live in CA. Is someone equating CHiPs to Nazis?

Phil 314 said...

with this, Masterpiece Cakes and Arlene florists Trump may have solidified the evangelical vote for 2020.

Quaestor said...

Is someone equating CHiPs to Nazis?

Helmet.
Boots.
Motorcycle.

More than enough congruence for your average Antifa SJW.

jg said...

Breyer conflates state regulation of doctors performing abortions with state regulation of non-doctors' speech. Is he dense?

Yancey Ward said...

If the California law stands, the government can force anyone into speech advocating anything that government wants. Seriously worrying that you can't get a 9-0 vote on something this clear cut.

jg said...

Furthermore his 'marketplace of ideas is only enriched by FactChecked mandatory speech' is embarrassing and has no place in a 1amdt ruling. The 1amdt is not even remotely about a marketplace of ideas where non-normative snopes-approved 'fact' is treated differently from opinion. He's channeling one of those elementary school teachers who earnestly believes there's always a single incontrovertible correct answer to "Fact or Opinion?" quizzes.

Leland said...

Latest CBS polling shows 3/4 disagree with releasing illegal aliens and want incarceration and deportation. So it is not just in SCOTUS that Trump is winning. I'm happy with Dems continuing with this losing strategy.

WWIII Joe Biden, Husk-Puppet + America's Putin said...

Yancey said ...

"If the California law stands, the government can force anyone into speech advocating anything that government wants. Seriously worrying that you can't get a 9-0 vote on something this clear cut."

Exactly.

Birches said...

@Phil

I didn't vote for Trump but ever since he pulled funding from Planned parenthood I have planned to vote for him in 2020. Enthusiastically.

Sydney said...

German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients.

Goodness! We are already there. Part of healthcare reform was to shift payments to hospitals and physicians for meeting “population health” targets rather than treating individuals.