The recent Supreme Court decision on crisis pregnancy centers is expected to complicate the future of some health laws.
In June 2018, the Supreme Court ruled that crisis pregnancy centers in California will no longer have to tell women about free or low-cost abortion options in the state because it caused an undue burden on those organizations and limited their rights to free speech.
A recent article published in the New England Journal of Medicine echoed the concerns of the dissenting justices: the majority decision is inconsistent with past cases.
“[T]he Court has created new uncertainty, and invited new litigation, regarding numerous health laws that were once assumed to be constitutional,” wrote Wendy E. Parmet, JD, from the Northeastern University School of Law in Boston, Massachusetts, and colleagues. “[The new decision] could weaken states’ ability to protect public health by regulating commercial speech…. [A]dvertising regulations, such as limits on tobacco promotion or restrictions on pharmaceutical marketing, have not been subject to strict scrutiny.”
Strict scrutiny is a tough judicial review process used to determine a law’s constitutionality. Advertising limits on tobacco promotion, for example, do not need to go through this review because at this time, it is generally agreed on that tobacco is not in the public health’s best interest.
In this case, the Supreme Court’s decision may broaden types of speech that must now be subject to strict scrutiny. Health laws, such as those allowing states to use information from health professionals, could be threatened.
“Laws restricting speech in order to enforce professional standards, such as previously upheld bans on ‘conversion therapy’…will be now subject to strict scrutiny,” the authors wrote. “[Will courts] now apply strict scrutiny more broadly to all regulations of abortion-related speech, including state laws that require abortion providers to give patients medically inaccurate information?”
Parmet WE, Berman ML, Smith JA The Supreme Court’s crisis pregnancy center case — implications for health law [published online August 29, 2018]. N Engl J Med. doi: 10.1056/NEJMp1809488