National Institute of Family and Life Advocates v. Becerra

(Slip Opinion) OCTOBER TERM, 2017 1

Syllabus

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 cri-

sis pregnancy centers—pro-life centers that offer pregnancy-related

services. The FACT Act requires clinics that primarily serve preg-

nant 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 pro-

vide medical services. Its stated purpose is to ensure that pregnant

women know when they are receiving health care from licensed pro-

fessionals. 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 no-

tices abridge the freedom of speech protected by the First Amend-

ment. The District Court denied their motion for a preliminary in-

junction, and the Ninth Circuit affirmed. Holding that petitioners

could not show a likelihood of success on the merits, the court con-

cluded that the licensed notice survived a lower level of scrutiny ap-

plicable to regulations of “professional speech,” and that the unli-

censed 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-

2 NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES v. BECERRA

Syllabus

tive content” and “are presumptively unconstitutional and may be

justified only if the government proves that they are narrowly tai-

lored to serve compelling state interests.” Reed v. Town of Gilbert,

576 U. S. ___, ___. The licensed notice is a content-based regulation.

By compelling petitioners to speak a particular message, it “alters the

content of [their] speech.” Riley v. National Federation of Blind of

N. C., Inc., 487 U. S. 781, 795. For example, one of the state-

sponsored services that the licensed notice requires petitioners to ad-

vertise is abortion—the very practice that petitioners are devoted to

opposing. Pp. 6–7.

(b) Although the licensed notice is content-based, the Ninth Cir-

cuit 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 dif-

ferent rules. Speech is not unprotected merely because it is uttered

by professionals. The Court has afforded less protection for profes-

sional speech in two circumstances—where a law requires profes-

sionals 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 un-

der which . . . services will be available,” 471 U. S., at 651. Califor-

nia’s notice requires covered clinics to disclose information about

state-sponsored services—including abortion, hardly an “uncontro-

versial” 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 opin-

ion rejected a free-speech challenge to an informed-consent law re-

quiring 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 reg-

ulation of professional conduct. It applies to all interactions between

a covered facility and its clients, regardless of whether a medical pro-

cedure is ever sought, offered, or performed. And many other facili-

ties providing the exact same services, such as general practice clin-

ics, 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

Cite as: 585 U. S. ____ (2018) 3

Syllabus

has applied strict scrutiny to content-based laws regulating the non-

commercial speech of lawyers, see Reed, supra, at ___, professional

fundraisers, see Riley, supra, at 798, and organizations providing

specialized advice on international law, see Holder v. Humanitarian

Law Project, 561 U. S. 1, 27–28. And it has stressed the danger of

content-based regulations “in the fields of medicine and public

health, where information can save lives.” Sorrell v. IMS Health Inc.,

564 U. S. 552, 566. Such dangers are also present in the context of

professional speech, where content-based regulation poses the same

“risk that the Government seeks not to advance a legitimate regula-

tory goal, but to suppress unpopular ideas or information,” Turner

Broadcasting Systems, Inc. v. FCC, 512 U. S. 622, 641. 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. ___, ___–___.

Professional speech is also a difficult category to define with preci-

sion. See Brown v. Entertainment Merchants Assn., 564 U. S. 786,

791. If States could choose the protection that speech receives simply

by requiring a license, they would have a powerful tool to impose “in-

vidious discrimination of disfavored subjects.” Cincinnati v. Discov-

ery Network, Inc., 507 U. S. 410, 423, n. 19. Pp. 11–14.

(c) Although neither California nor the Ninth Circuit have ad-

vanced 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 inter-

mediate 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 ser-

vices. 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. Peti-

tioners 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-

4 NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES v. BECERRA

Syllabus

countancy, 512 U. S. 136, 146, and can extend “no broader than rea-

sonably 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 nonhypo-

thetical justification, the FACT Act unduly burdens protected speech.

It imposes a government-scripted, speaker-based disclosure require-

ment that is wholly disconnected from the State’s informational in-

terest. 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 pri-

marily provide pregnancy-related services, but not those that pro-

vide, 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 Zau-

derer, 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.

Cite as: 585 U. S. ____ (2018) 1

Opinion of the Court

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, Wash-

ington, 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. Cal. Health & Safety Code Ann.

§123470 et seq. (West 2018). Licensed clinics must notify

women that California provides free or low-cost services,

including abortions, and give them a phone number to call.

Unlicensed clinics must notify women that California has

not licensed the clinics to provide medical services. The

question in this case is whether these notice requirements

violate the First Amendment.

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 Cali-

fornia State Assembly, App. 86—are “pro-life (largely

Christian belief-based) organizations that offer a limited

2 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

range of free pregnancy options, counseling, and other

services to individuals that visit a center.” Watters et al.,

Pregnancy Resource Centers: Ensuring Access and Accu-

racy of Information 4 (2011). “[U]nfortunately,” the au-

thor of the FACT Act stated, “there are nearly 200 licensed

and unlicensed” crisis pregnancy centers in California.

App. 84. These centers “aim to discourage and prevent

women from seeking abortions.” Id., at 85. The author of

the FACT Act observed that crisis pregnancy centers “are

commonly affiliated with, or run by organizations whose

stated goal” is to oppose abortion—including “the National

Institute of Family and Life Advocates,” one of the peti-

tioners here. Ibid. To address this perceived problem, the

FACT Act imposes two notice requirements on facilities

that provide pregnancy-related services—one for licensed

facilities and one for unlicensed facilities.

1

The first notice requirement applies to “licensed covered

facilit[ies].” Cal. Health & Safety Code Ann. §123471(a).

To fall under the definition of “licensed covered facility,” a

clinic must be a licensed primary care or specialty clinic or

qualify as an intermittent clinic under California law.

Ibid. (citing §§1204, 1206(h)). A licensed covered facility

also must have the “primary purpose” of “providing fam-

ily planning or pregnancy-related services.” §123471(a).

And it must satisfy at least two of the following six

requirements:

“(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-

Cite as: 585 U. S. ____ (2018) 3

Opinion of the Court

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). §123471(c). To participate in the Family PACT

program, a clinic must provide “the full scope of family

planning . . . services specified for the program,” Cal.

Welf. & Inst. Code Ann. §24005(c) (West 2018), including

sterilization and emergency contraceptive pills,

§§24007(a)(1), (2).

If a clinic is a licensed covered facility, the FACT Act

requires it to disseminate a government-drafted notice on

site. Cal. Health & Safety Code Ann. §123472(a)(1). The

notice states that “California has public programs that

provide immediate free or low-cost access to comprehen-

sive family planning services (including all FDA-approved

methods of contraception), prenatal care, and abortion for

eligible women. To determine whether you qualify, con-

tact the county social services office at [insert the tele-

phone number].” Ibid. This notice must be posted in the

waiting room, printed and distributed to all clients, or

provided digitally at check-in. §123472(a)(2). The notice

must be in English and any additional languages identi-

fied by state law. §123472(a). In some counties, that

means the notice must be spelled out in 13 different lan-

guages. See State of Cal., Dept. of Health Care Services,

Frequency of Threshold Language Speakers in the Medi-

4 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

Cal Population by County for Jan. 2015, pp. 4–5 (Sept.

2016) (identifying the required languages for Los Angeles

County as English, Spanish, Armenian, Mandarin, Can-

tonese, Korean, Vietnamese, Farsi, Tagalog, Russian,

Cambodian, Other Chinese, and Arabic).

The stated purpose of the FACT Act, including its li-

censed 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 contracep-

tion, 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].” §123471(b). To fall

under the definition of “unlicensed covered facility,” a

facility must not be licensed by the State, not have a li-

censed medical provider on staff or under contract, and

have the “primary purpose” of “providing pregnancy-

related services.” Ibid. An unlicensed covered facility

also must satisfy at least two of the following four

requirements:

“(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-

Cite as: 585 U. S. ____ (2018) 5

Opinion of the Court

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. §123471(c).

Unlicensed covered facilities must provide a government-

drafted notice stating that “[t]his facility is not li-

censed as a medical facility by the State of California and

has no licensed medical provider who provides or directly

supervises the provision of services.” Cal. Health & Safety

Code Ann. §123472(b)(1). This notice must be provided on

site and in all advertising materials. §§123472(b)(2), (3).

Onsite, the notice must be posted “conspicuously” at the

entrance of the facility and in at least one waiting area.

§123472(b)(2). It must be “at least 8.5 inches by 11 inches

and written in no less than 48-point type.” Ibid. In adver-

tisements, the notice must be in the same size or larger

font than the surrounding text, or otherwise set off in a

way that draws attention to it. §123472(b)(3). Like the

licensed notice, the unlicensed notice must be in English

and any additional languages specified by state law.

§123471(b). Its stated purpose is to ensure “that pregnant

women in California know when they are getting medical

care from licensed professionals.” Cal. Legis. Serv., §1(e).

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 free-

dom of speech protected by the First Amendment. The

District Court denied their motion for a preliminary

6 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

injunction.

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 petition-

ers’ challenge to the FACT Act was ripe,1 id., at 833, the

Ninth Circuit held that petitioners could not show a like-

lihood 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-

——————

1 Weagree with the Ninth Circuit’s ripeness determination.

2 Petitioners

raise serious concerns that both the licensed and unli-

censed notices discriminate based on viewpoint. Because the notices

are unconstitutional either way, as explained below, we need not reach

that issue.

Cite as: 585 U. S. ____ (2018) 7

Opinion of the Court

ments have “ ‘no power to restrict expression because of its

message, its ideas, its subject matter, or its content.’ ”

Ibid. (quoting Police Dept. of Chicago v. Mosley, 408 U. S.

92, 95 (1972)).

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 Broadcast-

ing 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 ob-

tain state-subsidized abortions—at the same time peti-

tioners try to dissuade women from choosing that option—

the licensed notice plainly “alters the content” of petition-

ers’ 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 “profes-

sional 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 2014). These courts define “professionals” as indi-

viduals 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

8 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

232; Pickup, supra, at 1230. “Professional speech” is then

defined as any speech by these individuals that is based on

“[their] expert knowledge and judgment,” King, supra, at

232, or that is “within the confines of [the] professional

relationship,” Pickup, supra, at 1228. So defined, these

courts except professional speech from the rule that content-

based regulations of speech are subject to strict scru-

tiny. See King, supra, at 232; Pickup, supra, at 1053–

1056; Moore-King, supra, at 569.

But this Court has not recognized “professional speech”

as a separate category of speech. Speech is not unpro-

tected 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 prece-

dents 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 tradi-

tion 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 infor-

mation 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,

Cite as: 585 U. S. ____ (2018) 9

Opinion of the Court

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 profes-

sional 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 con-

texts. 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 re-

quired 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 obvi-

ously, 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) (explain-

ing that Zauderer does not apply outside of these circum-

stances). 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.

10 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

2

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 mal-

practice, 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 chal-

lenge to this informed-consent requirement. Id., at 884. It

Cite as: 585 U. S. ____ (2018) 11

Opinion of the Court

described the Pennsylvania law as “a requirement that a

doctor give a woman certain information as part of obtain-

ing her consent to an abortion,” which “for constitutional

purposes, [was] no different from a requirement that a

doctor give certain specific information about any medical

procedure.” Ibid. The joint opinion explained that the law

regulated speech only “as part of the practice of medicine,

subject to reasonable licensing and regulation by the

State.” Ibid. (emphasis added). Indeed, the requirement

that a doctor obtain informed consent to perform an opera-

tion is “firmly entrenched in American tort law.” Cruzan

v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990);

see, e.g., Schloendorff v. Society of N. Y. Hospital, 211

N. Y. 125, 129–130, 105 N. E. 92, 93 (1914) (Cardozo, J.)

(explaining that “a surgeon who performs an operation

without his patient’s consent commits an assault”).

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 cov-

ered 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 §123471(a)—are not required

to provide the licensed notice. The licensed notice regu-

lates speech as speech.

3

Outside of the two contexts discussed above—

disclosures under Zauderer and professional conduct—this

Court’s precedents have long protected the First Amend-

ment rights of professionals. For example, this Court has

12 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

applied strict scrutiny to content-based laws that regulate

the noncommercial speech of lawyers, see Reed, 576 U. S.,

at ___ (slip op., at 10) (discussing Button, supra, at 438);

In re Primus, 436 U. S. 412, 432 (1978); professional fund-

raisers, see Riley, 487 U. S., at 798; and organizations that

provided specialized advice about international law, see

Holder v. Humanitarian Law Project, 561 U. S. 1, 27–28

(2010). And the Court emphasized that the lawyer’s

statements in Zauderer would have been “fully protected”

if they were made in a context other than advertising. 471

U. S., at 637, n. 7. Moreover, this Court has stressed the

danger of content-based regulations “in the fields of medi-

cine and public health, where information can save lives.”

Sorrell, supra, at 566.

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 infor-

mation.” Turner Broadcasting, 512 U. S., at 641. Take

medicine, for example. “Doctors help patients make deeply

personal decisions, and their candor is crucial.” Woll-

schlaeger 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, Chi-

nese physicians were dispatched to the countryside to

convince peasants to use contraception. In the 1930s,

the Soviet government expedited completion of a con-

struction project on the Siberian railroad by ordering

doctors to both reject requests for medical leave from

work and conceal this government order from their

Cite as: 585 U. S. ____ (2018) 13

Opinion of the Court

patients. In Nazi Germany, the Third Reich system-

atically 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 pre-

vail.’ ” 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 di-

vorce; 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 competi-

tion 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

14 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

U. S., at 791. As defined by the courts of appeals, the

professional-speech doctrine would cover a wide array of

individuals—doctors, lawyers, nurses, physical therapists,

truck drivers, bartenders, barbers, and many others. See

Smolla, Professional Speech and the First Amendment,

119 W. Va. L. Rev. 67, 68 (2016). One court of appeals has

even applied it to fortune tellers. See Moore-King, 708

F. 3d, at 569. All that is required to make something a

“profession,” according to these courts, is that it involves

personalized services and requires a professional license

from the State. But that gives the States unfettered power

to reduce a group’s First Amendment rights by simply

imposing a licensing requirement. States cannot choose

the protection that speech receives under the First

Amendment, as that would give them a powerful tool to

impose “invidious discrimination of disfavored subjects.”

Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423–

424, n. 19 (1993); see also Riley, 487 U. S., at 796 (“[S]tate

labels cannot be dispositive of [the] degree of First

Amendment protection” (citing Bigelow v. Virginia, 421

U. S. 809, 826 (1975)).

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 inter-

mediate scrutiny. California asserts a single interest to

justify the licensed notice: providing low-income women

with information about state-sponsored services. Assum-

ing 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

Cite as: 585 U. S. ____ (2018) 15

Opinion of the Court

“wildly underinclusive.” Entertainment Merchants Assn.,

supra, at 802. The notice applies only to clinics that have

a “primary purpose” of “providing family planning or

pregnancy-related services” and that provide two of six

categories of specific services. §123471(a). Other clinics

that have another primary purpose, or that provide only

one category of those services, also serve low-income

women and could educate them about the State’s services.

According to the legislative record, California has “nearly

1,000 community clinics”—including “federally designated

community health centers, migrant health centers, rural

health centers, and frontier health centers”—that “serv[e]

more than 5.6 million patients . . . annually through over

17 million patient encounters.” App. 58. But most of

those clinics are excluded from the licensed notice re-

quirement without explanation. Such “[u]nderinclusive-

ness raises serious doubts about whether the government

is in fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.” Enter-

tainment Merchants Assn., 564 U. S., at 802.

The FACT Act also excludes, without explanation, fed-

eral 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 max-

imize 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

16 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

many women who are pregnant or could become pregnant

in the future, demonstrates the disconnect between its

stated purpose and its actual scope. Yet “[p]recision . . .

must be the touchstone” when it comes to regulations of

speech, which “so closely touc[h] our most precious free-

doms.” Button, 371 U. S., at 438.

Further, California could inform low-income women

about its services “without burdening a speaker with

unwanted speech.” Riley, 487 U. S., at 800. Most obvi-

ously, it could inform the women itself with a public-

information campaign. See ibid. (concluding that a com-

pelled disclosure was unconstitutional because the

government could “itself publish . . . the disclosure”). Califor-

nia 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 evi-

dence to that effect. And regardless, a “tepid response”

does not prove that an advertising campaign is not a

sufficient alternative. United States v. Playboy Enter-

tainment Group, Inc., 529 U. S. 803, 816 (2000). Here, for

example, individuals might not have enrolled in Califor-

nia’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 li-

censed 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

Cite as: 585 U. S. ____ (2018) 17

Opinion of the Court

and uncontroversial disclosures about commercial

products.

III

We next address the unlicensed notice. The parties

dispute whether the unlicensed notice is subject to defer-

ential 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 Regu-

lation, 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 (re-

jecting “broad prophylactic rules” in this area). Otherwise,

they risk “chilling” protected speech.” Id., at 651. Im-

portantly, California has the burden to prove that the

unlicensed notice is neither unjustified nor unduly bur-

densome. See Ibanez, 512 U. S., at 146. It has not met its

burden.

We need not decide what type of state interest is suffi-

cient to sustain a disclosure requirement like the unli-

censed notice. California has not demonstrated any justi-

fication for the unlicensed notice that is more than “purely

hypothetical.” Ibid. The only justification that the Cali-

fornia Legislature put forward was ensuring that “preg-

nant women in California know when they are getting

——————

3 Other than a conclusory assertion that the unlicensed notice satis-

fies any standard of review, see Brief for Respondents 19, California

does not explain how the unlicensed notice could satisfy any standard

other than Zauderer.

18 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

medical care from licensed professionals.” 2015 Cal. Legis.

Serv., §1(e). At oral argument, however, California denied

that the justification for the FACT Act was that women

“go into [crisis pregnancy centers] and they don’t realize

what they are.” See Tr. of Oral Arg. at 44–45. Indeed,

California points to nothing suggesting that pregnant

women do not already know that the covered facilities are

staffed by unlicensed medical professionals. The services

that trigger the unlicensed notice—such as having “volun-

teers who collect health information from clients,” “adver-

tis[ing] . . . pregnancy options counseling,” and offering

over-the-counter “pregnancy testing,” §123471(b)—do not

require a medical license. And California already makes it

a crime for individuals without a medical license to prac-

tice medicine. See Cal. Bus. & Prof. Code Ann. §2052. At

this preliminary stage of the litigation, we agree that

petitioners are likely to prevail on the question whether

California has proved a justification for the unlicensed

notice.4

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 require-

ment that is wholly disconnected from California’s infor-

mational 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,”

§123471(a), the California Legislature dropped these

triggering conditions for the unlicensed notice. The unli-

——————

4 Nothing in our opinion should be read to foreclose the possibility

that California will gather enough evidence in later stages of this

litigation.

Cite as: 585 U. S. ____ (2018) 19

Opinion of the Court

censed notice applies only to facilities that primarily

provide “pregnancy-related” services. §123471(b). Thus, a

facility that advertises and provides pregnancy tests is

covered by the unlicensed notice, but a facility across the

street that advertises and provides nonprescription con-

traceptives is excluded—even though the latter is no less

likely to make women think it is licensed. This Court’s

precedents are deeply skeptical of laws that “distinguis[h]

among different speakers, allowing speech by some but not

others.” Citizens United v. Federal Election Comm’n, 558

U. S. 310, 340 (2010). Speaker-based laws run the risk

that “the State has left unburdened those speakers whose

messages are in accord with its own views.” Sorrell, 564

U. S., at 580.

The application of the unlicensed notice to advertise-

ments demonstrates just how burdensome it is. The notice

applies to all “print and digital advertising materials” by

an unlicensed covered facility. §123472(b). These materi-

als must include a government-drafted statement 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 ser-

vices.” §123472(b)(1). An unlicensed facility must call

attention to the notice, instead of its own message, by

some method such as larger text or contrasting type or

color. See §§123472(b)(2)–(3). This scripted language

must be posted in English and as many other languages as

California chooses to require. As California conceded at

oral argument, a billboard for an unlicensed facility that

says “Choose Life” would have to surround that two-word

statement with a 29-word statement from the government,

in as many as 13 different languages. In this way, the

unlicensed notice drowns out the facility’s own message.

More likely, the “detail required” by the unlicensed notice

“effectively rules out” the possibility of having such a

billboard in the first place. Ibanez, supra, at 146.

20 NATIONAL INSTITUTE OF FAMILY AND

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Opinion of the Court

For all these reasons, the unlicensed notice does not

satisfy Zauderer, assuming that standard applies. Cali-

fornia 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 unjusti-

fied 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.

Cite as: 585 U. S. ____ (2018) 1

KENNEDY, J., concurring

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 KENNEDY, with whom THE CHIEF JUSTICE,

JUSTICE ALITO, and JUSTICE GORSUCH join, concurring.

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 dis-

crimination, 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 cen-

ters to promote the State’s own preferred message adver-

tising abortions. This compels individuals to contradict

their most deeply held beliefs, beliefs grounded in basic

philosophical, ethical, or religious precepts, or all of these.

2 NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES v. BECERRA

KENNEDY, J., concurring

And the history of the Act’s passage and its underinclusive

application suggest a real possibility that these individu-

als were targeted because of their beliefs.

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 think-

ing to begin by reading the First Amendment as ratified in

1791; to understand the history of authoritarian govern-

ment 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.

Cite as: 585 U. S. ____ (2018) 1

BREYER, J., dissenting

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 BREYER, with whom JUSTICE GINSBURG,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

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 pro-

vide 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 ser-

vices. Cal. Health & Safety Code Ann. §§123471(a), 1204,

1206(h) (West 2018) (covering “primary care clinics” that

serve low-income women); Cal. Code Regs., tit. 22, §75026

(2018) (“primary care clinics” are medical facilities that

2 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

provide “services for the care and treatment of patients for

whom the clinic accepts responsibility” with the “direction

or supervision” of each “service” undertaken “by a person

licensed, certified or registered to provide such service”).

The statute requires these facilities to post a notice in

their waiting rooms telling their patients:

“California has public programs that provide immedi-

ate free or low-cost access to comprehensive family

planning services (including all FDA-approved meth-

ods 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 facili-

ties that object to abortion for religious reasons, brought

this case seeking an injunction against enforcement of the

California Reproductive Freedom, Accountability, Com-

prehensive 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 scru-

tiny 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,

Cite as: 585 U. S. ____ (2018) 3

BREYER, J., dissenting

795 (1988)) (alteration in original). “As a general matter,”

the majority concludes, such laws are “presumptively

unconstitutional” and are subject to “stringent” review.

Ante, at 6–7.

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 ser-

vices 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. ___, ___ (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 excep-

tions are interpreted.

Many ordinary disclosure laws would fall outside the

majority’s exceptions for disclosures related to the profes-

sional’s own services or conduct. These include numerous

commonly found disclosure requirements relating to the

medical profession. See, e.g., Cal. Veh. Code Ann.

§27363.5 (West 2014) (requiring hospitals to tell parents

about child seat belts); Cal. Health & Safety Code Ann.

4 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

§123222.2 (requiring hospitals to ask incoming patients if

they would like the facility to give their family information

about patients’ rights and responsibilities); N. C. Gen. Stat.

Ann. §131E–79.2 (2017) (requiring hospitals to tell par-

ents of newborns about pertussis disease and the available

vaccine). These also include numerous disclosure re-

quirements found in other areas. See, e.g., N. Y. C. Rules

& Regs., tit. 1, §27–01 (2018) (requiring signs by elevators

showing stair locations); San Francisco Dept. of Health,

Director’s Rules & Regs., Garbage and Refuse (July 8,

2010) (requiring property owners to inform tenants about

garbage disposal procedures).

The majority, at the end of Part II of its opinion, per-

haps 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 major-

ity, 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 unlaw-

ful 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 unpre-

dictable First Amendment to ordinary social and economic

Cite as: 585 U. S. ____ (2018) 5

BREYER, J., dissenting

regulation, striking down disclosure laws that judges may

disfavor, while upholding others, all without grounding

their decisions in reasoned principle.

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 re-

quirements 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 eco-

nomic 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).

6 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

The Court has taken this same respectful approach to

economic and social legislation when a First Amendment

claim like the claim present here is at issue. See, e.g.,

Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U. S. 626, 651 (1985) (upholding rea-

sonable disclosure requirements for attorneys); Milavetz,

Gallop & Milavetz, P. A. v. United States, 559 U. S. 229,

252–253 (2010) (same); cf. Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 563–

564 (1980) (applying intermediate scrutiny to other re-

strictions on commercial speech); In re R. M. J., 455 U. S.

191, 203 (1982) (no First Amendment protection for mis-

leading or deceptive commercial speech). But see Sorrell

v. IMS Health Inc., 564 U. S. 552 (2011) (striking down

regulation of pharmaceutical drug-related information).

Even during the Lochner era, when this Court struck

down numerous economic regulations concerning industry,

this Court was careful to defer to state legislative judg-

ments concerning the medical profession. The Court took

the view that a State may condition the practice of medi-

cine 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 condi-

tions. 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 dis-

pute”); 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

Cite as: 585 U. S. ____ (2018) 7

BREYER, J., dissenting

the practice of medicine” involve “very different considera-

tions” from those applicable to “trades [such as] locomotive

engineers and barbers”); Semler v. Oregon Bd. of Dental

Examiners, 294 U. S. 608, 612 (1935) (upholding state

regulation of dentistry given the “vital interest of public

health”). In the name of the First Amendment, the majority

today treads into territory where the pre-New Deal, as well

as the post-New Deal, Court refused to go.

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 height-

ened scrutiny applies to much economic and social legisla-

tion, 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

8 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

relating to reproductive health. Though those rules or

holdings have changed over time, they should govern our

disposition of this case.

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 fe-

tus, 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

Cite as: 585 U. S. ____ (2018) 9

BREYER, J., dissenting

(1977)) (alteration in original).

Several years later, in Thornburgh v. American College

of Obstetricians and Gynecologists, 476 U. S. 747 (1986),

the Court considered a Pennsylvania statute that “pre-

scribe[d] in detail the method for securing ‘informed con-

sent’ ” to an abortion. Id., at 760. The statute required the

doctor to tell the patient about health risks associated

with abortion, possibly available benefits for prenatal care,

childbirth, and neonatal care, and agencies offering alter-

natives to abortion. Id., at 760–761. In particular it

required the doctor to give the patient printed materials

that, among other things, said:

“ ‘ “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 Pennsylva-

nia 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 abor-

tion.” ’ ” Id., at 761 (quoting 18 Pa. Cons. Stat.

§3208(a)(1) (1982)).

The Court, as in Akron, held that the statute’s infor-

mation requirements violated the Constitution. They

were designed “ ‘not to inform the woman’s consent but

rather to persuade her to withhold it altogether.’ ” Thorn-

burgh, 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 ele-

men[t] of discouragement for the abortion decision,” and

the law was the “antithesis of informed consent.” Thorn-

burgh, supra, at 763–764.

These cases, however, whatever support they may have

10 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

given to the majority’s view, are no longer good law. In

Planned Parenthood of Southeastern Pa. v. Casey, 505

U. S. 833 (1992), the Court again considered a state law

that required doctors to provide information to a woman

deciding whether to proceed with an abortion. That law

required the doctor to tell the woman about the nature of

the abortion procedure, the health risks of abortion and of

childbirth, the “ ‘probable gestational age of the unborn

child,’ ” and the availability of printed materials describing

the fetus, medical assistance for childbirth, potential child

support, and the agencies that would provide adoption

services (or other alternatives to abortion). Id., at 881

(joint opinion of O’Connor, KENNEDY, and Souter, JJ.)

(quoting 18 Pa. Cons. Stat. §3205 (1990)).

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 consti-

tutional. Id., at 874. The joint opinion stated that the

statutory requirements amounted to “reasonable meas-

ure[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 consti-

tutional violation when the government requires, as it

does here, the giving of truthful, nonmisleading in-

formation about the nature of the procedure, the at-

tendant 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-

Cite as: 585 U. S. ____ (2018) 11

BREYER, J., dissenting

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 child-

birth, 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 regula-

tion by the State, cf. Whalen v. Roe, 429 U. S. 589, 603

(1977). We see no constitutional infirmity in the re-

quirement 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 re-

quirements, 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 Constitu-

tion’s protection of free speech or its protection of a wom-

an’s right to choose to have an abortion.

C

Taking Casey as controlling, the law’s demand for even-

handedness requires a different answer than that perhaps

suggested by Akron and Thornburgh. If a State can law-

fully 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

12 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

prenatal care or other reproductive healthcare about

childbirth and abortion services? As the question sug-

gests, there is no convincing reason to distinguish between

information about adoption and information about abor-

tion in this context. After all, the rule of law embodies

evenhandedness, and “what is sauce for the goose is nor-

mally sauce for the gander.” Heffernan v. City of Paterson,

578 U. S. ___, ___ (2016) (slip op., at 6).

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 medi-

cal 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 ap-

plies only to “primary care clinics,” which provide “services

for the care and treatment of patients for whom the clinic

accepts responsibility.” Cal. Code Regs., tit. 22, §75026(a);

see Cal. Health & Safety Code Ann. §§123471(a), 1204,

1206(h). And the persons responsible for patients at those

clinics are all persons “licensed, certified or registered to

provide” pregnancy-related medical services. Cal. Code

Regs., tit. 22, §75026(c). The petitioners have not, either

here or in the District Court, provided any example of a

covered clinic that is not operated by licensed doctors or

what the statute specifies are equivalent professionals.

See, e.g., App. to Pet. for Cert. 92a (identifying two obste-

trician/gynecologists, a radiologist, an anesthesiologist, a

certified nurse midwife, a nurse practitioner, 10 nurses,

and two registered diagnostic medical sonographers on

staff).

Cite as: 585 U. S. ____ (2018) 13

BREYER, J., dissenting

The Act requires these medical professionals to disclose

information about the possibility of abortion (including

potential financial help) that is as likely helpful to grant-

ing “informed consent” as is information about the possi-

bility of adoption and childbirth (including potential finan-

cial help). That is why I find it impossible to drive any

meaningful legal wedge between the law, as interpreted in

Casey, and the law as it should be applied in this case. If

the law in Casey regulated speech “only ‘as part of the

practice of medicine,’ ” ante, at 11 (quoting Casey, supra, at

884), so too here.

The majority contends that the disclosure here is unre-

lated to a “medical procedure,” unlike that in Casey, and

so the State has no reason to inform a woman about alter-

natives 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. Heller-

stedt, 579 U. S. ___, ___ (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 condi-

tions. Childbirth itself, directly or through pain manage-

ment, 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.” Pre-

scription drug labels warn patients of risks even though

14 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

taking prescription drugs may not be considered a “medi-

cal procedure.” 21 CFR §201.56 (2017). In California,

clinics that screen for breast cancer must post a sign in

their offices notifying patients that, if they are diagnosed

with breast cancer, their doctor must provide “a written

summary of alternative efficacious methods of treatment,”

a notification that does not relate to the screening proce-

dure at issue. Cal. Health & Safety Code Ann. §109277.

If even these disclosures fall outside the majority’s

cramped view of Casey and informed consent, it undoubt-

edly would invalidate the many other disclosures that are

routine in the medical context as well. Supra, at 3–4.

The majority also finds it “[t]ellin[g]” that general prac-

tice 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 Respond-

ents 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 particu-

larly useful. There is “nothing inherently suspect” about

this distinction, McCullen v. Coakley, 573 U. S. ___, ___

(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

Cite as: 585 U. S. ____ (2018) 15

BREYER, J., dissenting

attorneys disclose in their advertisements that clients

might be liable for significant litigation costs even if their

lawsuits were unsuccessful. 471 U. S., at 650. We refused

to apply heightened scrutiny, instead asking whether the

disclosure requirements were “reasonably related to the

State’s interest in preventing deception of consumers.”

Id., at 651.

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 contracep-

tion (which is a family-planning service), ultrasounds or

pregnancy testing (which is prenatal care), or abortion.

Cal. Health & Safety Code Ann. §123471(a). The required

disclosure is related to the clinic’s services because it

provides information about state resources for the very

same services. A patient who knows that she can receive

free prenatal care from the State may well prefer to forgo

the prenatal care offered at one of the clinics here. And for

those interested in family planning and abortion services,

information about such alternatives is relevant infor-

mation to patients offered prenatal care, just as Casey

considered information about adoption to be relevant to

the abortion decision.

Regardless, Zauderer is not so limited. Zauderer turned

on the “material differences between disclosure require-

ments 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-

scribe what shall be orthodox in politics, nationalism,

16 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein,’ ” it does not

warrant heightened scrutiny. Id., at 651 (quoting West

Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)).

In Zauderer, the Court emphasized the reason that the

First Amendment protects commercial speech at all: “the

value to consumers of the information such speech pro-

vides.” 471 U. S., at 651. For that reason, a professional’s

“constitutionally protected interest in not providing any

particular factual information in his advertising is mini-

mal.” Ibid. But this rationale is not in any way tied to

advertisements about a professional’s own services. For

instance, it applies equally to a law that requires doctors,

when discharging a child under eight years of age, to

“provide to and discuss with the parents . . . information

on the current law requiring child passenger restraint

systems, safety belts, and the transportation of children in

rear seats.” Cal. Veh. Code Ann. §27363.5(a). Even

though child seat belt laws do not directly relate to the

doctor’s own services, telling parents about such laws does

nothing to undermine the flow of factual information.

Whether the context is advertising the professional’s own

services or other commercial speech, a doctor’s First

Amendment interest in not providing factual information

to patients is the same: minimal, because his professional

speech is protected precisely because of its informational

value to patients. There is no reason to subject such laws

to heightened scrutiny.

Accordingly, the majority’s reliance on cases that pro-

hibit rather than require speech is misplaced. Ante, at 12–

14. I agree that “ ‘in the fields of medicine and public

heath, . . . information can save lives,’ ” but the licensed

disclosure serves that informational interest by requiring

clinics to notify patients of the availability of state re-

sources for family planning services, prenatal care, and

abortion, which—unlike the majority’s examples of norma-

Cite as: 585 U. S. ____ (2018) 17

BREYER, J., dissenting

tive statements, ante, at 13—is truthful and nonmislead-

ing information. 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 debat-

able 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. 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 be-

cause Americans hold strong, and differing, views about

the matter. Some Americans believe that abortion in-

volves 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

18 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

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.

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 primar-

ily covers facilities with supporters, organizers, and em-

ployees 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 facili-

ties that enroll patients in publicly funded programs that

include abortion. In doing so, they say, the statute unnec-

essarily 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 facili-

ties 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

Cite as: 585 U. S. ____ (2018) 19

BREYER, J., dissenting

in concluding that the Act is underinclusive, ante, at 15–

16. But the key question is whether these exempt clinics

are significantly more likely than are the pro-life clinics to

tell or to have told their pregnant patients about the

existence of these programs—in the absence of any statu-

tory compulsion. If so, it may make sense—in terms of the

statute’s informational objective—to exempt them, namely

if there is no need to cover them. See FACT Act, §1(d)

(suggesting in general terms that this is so). But, if there

are not good reasons to exempt these clinics from cover-

age, i.e., if, for example, they too frequently do not tell

their patients about the availability of abortion services,

the petitioners’ claim of viewpoint discrimination becomes

much stronger.

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 require-

ments, 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 con-

duct. 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 evi-

dence in the record before the lower courts, the “viewpoint

discrimination” claim could not justify the issuance of a

preliminary injunction.

20 NATIONAL INSTITUTE OF FAMILY AND

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BREYER, J., dissenting

II

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. Cal. Health & Safety Code Ann. §123471(b)(1). The

statute says that such a facility must disclose that it is not

“licensed as a medical facility.” §123472(b). And it must

make this disclosure in a posted notice and in advertising.

Ibid.

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 encom-

passes. Ante, at 5, 17. Nor could it. In Riley, 487 U. S.

781, the Court noted that the First Amendment would

permit a requirement for “professional fundraisers to

disclose their professional status”—nearly identical to the

unlicensed disclosure at issue here. Id., at 799 and n. 11;

see also id., at 804 (Scalia, J., concurring in part and

concurring in judgment) (noting that this requirement was

not aimed at combating deception). Such informational

interests have long justified regulations in the medical

context. See, e.g., Dent, 129 U. S., at 122 (upholding medi-

cal licensing requirements that “tend to secure [a State’s

citizens] against the consequences of ignorance and inca-

pacity, as well as of deception and fraud”); Semler, 294

U. S., at 611 (upholding state dentistry regulation that

“afford[ed] protection against ignorance, incapacity and

imposition”).

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

Cite as: 585 U. S. ____ (2018) 21

BREYER, J., dissenting

standard of review based on our precedents that deal with

speech restrictions, not disclosures. Ante, at 17 (citing,

e.g., In re R. M. J., 455 U. S., at 203; 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); and Zauderer, 471 U. S., at 649

(portion of opinion considering speech restrictions, not

disclosures)). This approach is incompatible with Zauderer.

See Zauderer, supra, at 651 (upholding attorney disclosure

requirements where “reasonably related to the State’s

interest”); Milavetz, 559 U. S., at 250–253 (same).

There is no basis for finding the State’s interest “hypo-

thetical.” 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 quali-

fied 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 preg-

nancy 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,

22 NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES v. BECERRA

BREYER, J., dissenting

better than other dentists. Id., at 610. Yet the Court held

that “[i]n framing its policy, the legislature was not bound

to provide for determinations of the relative proficiency of

particular practitioners.” Id., at 612. To the contrary,

“[t]he legislature was entitled to consider the general

effects of the practices which it described, and if these

effects were injurious in facilitating unwarranted and

misleading claims, to counteract them by a general rule,

even though in particular instances there might be no

actual deception or misstatement.” Id., at 613.

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 view-

point discrimination (although the majority does not reach

this point). “ ‘[A]n exemption from an otherwise permissi-

ble 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.” ’ ” McCul-

len, 573 U. S., at ___ (slip op., at 15) (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 abor-

tion debate,” there is a “clear form of viewpoint discrimi-

nation.” McCullen, supra, at ___ (slip op., at 18).

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 require-

ment. See, e.g., Cal. Bus. & Prof. Code Ann. §2053.6 (West

Cite as: 585 U. S. ____ (2018) 23

BREYER, J., dissenting

2012) (unlicensed providers of alternative health services

must disclose that “he or she is not a licensed physician”

and “the services to be provided are not licensed by the

state”). And it is unremarkable that the State excluded

the provision of family planning and contraceptive services

as triggering conditions. Ante, at 18–19. After all, the

State was seeking to ensure that “pregnant women in

California know when they are getting medical care from

licensed professionals,” and pregnant women generally do

not need contraceptive services.

Finally, the majority concludes that the Act is overly

burdensome. Ante, at 19. I agree that “unduly burden-

some 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 consti-

tutionally,” New York State Club Assn., supra, at 14.

For instance, the majority highlights that the statute

24 NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES v. BECERRA

BREYER, J., dissenting

requires facilities to write their “medical license” disclaim-

ers in 13 languages. Ante, at 19. As I understand the Act,

it would require disclosure in no more than two lan-

guages—English and Spanish—in the vast majority of

California’s 58 counties. The exception is Los Angeles

County, where, given the large number of different-

language speaking groups, expression in many languages

may prove necessary to communicate the message to those

whom that message will help. Whether the requirement

of 13 different languages goes too far and is unnecessarily

burdensome in light of the need to secure the statutory

objectives is a matter that concerns Los Angeles County

alone, and it is a proper subject for a Los Angeles-based as

applied challenge in light of whatever facts a plaintiff

finds relevant. At most, such facts might show a need for

fewer languages, not invalidation of the statute.

* * *

For these reasons I would not hold the California stat-

ute 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 major-

ity’s contrary conclusions.