In 2018, the U.S. Supreme Court decided National Institute of Family & Life Advocates v. Becerra, striking down a California law mandating that clinics for low-income pregnant women disclose, among other things, the availability of publicly-funded abortion services at other facilities. Although frequently maligned for allowing crisis pregnancy centers to mislead their clients, the decision gave private parties a powerful new tool for resisting government demands to carry unwanted messages: only genuinely “uncontroversial” disclaimer requirements pass muster, and only to the extent necessary to guard against potentially misleading claims. If applied in an even-handed fashion, then courts should just as readily invalidate laws recently adopted in almost a dozen states (and sponsored by pro-life groups) that obligate suppliers of the abortifacient mifepristone to incorrectly advise patients that they could reverse the procedure even after starting use of the drug. More straightforward state and federal disclosure requirements may, however, also fare poorly. Under the cover of an abortion-related dispute, Justice Thomas finally appears to have succeeded in his long-running campaign to collapse the distinction between core and commercial speech.
Censorship is so Last Century: Therapeutic Products, Propaganda, and Compelled Speech,
St. Louis U. L.J.
Available at: https://scholarship.law.slu.edu/lj/vol66/iss1/5