Written by Nina Sun, Global Advocacy Advisor at the Center for Reproductive Rights.
Access to evidence-based, unbiased and scientifically accurate health information is one of the foundational pillars of medical ethics, as well as the right to health. While this is important in any interaction with the health system, access to accurate information is especially key when a woman is pregnant.
On June 26, 2018, the Supreme Court of the United States weakened a women’s right to evidence-based, accurate information when it decided that the state of California could not require anti-abortion, crisis pregnancy centers (CPCs) to post notices about the availability of state-sponsored reproductive health care services, including safe abortion services. In the case of National Institute of Family and Life Advocates, NIFLA, et. al. v. Becerra (NIFLA case), two CPCs challenged a California law which required the centers to notify women that the state provides free or low-cost access to comprehensive family planning services, prenatal care and abortion. The CPCs argued that the notice requirement violated their right to free speech as protected by the First Amendment of the US Constitution. In an opinion of five judges to four, the majority of the Court agreed with the CPCs, finding that California did not have a “compelling interest” to infringe on this fundamental right. Importantly, the majority said that the notice requirement was not part of the informed consent process or any other regulation of professional conduct. It also thought that information about the availability of state-sponsored services does not relate to the services that the crisis pregnancy centers provide, noting that those centers do not perform abortions.
Interestingly and unsurprisingly, all the female judges on the Court joined the dissenting opinion, which supported California’s notice requirement law. Dissenting opinions are written when one or more judges disagree with the Court’s majority decision. The dissent stated that the notice requirement expresses no preference on abortion, but simply informs women that California sponsors comprehensive reproductive health care services, including abortion. The dissenting judges strongly highlighted the importance of providing truthful, non-misleading information to women, so that they could make fully informed medical decisions about their pregnancies.
From the health and the human rights perspectives, this court decision is problematic. First, the Supreme Court is giving carte blanche for CPCs, which have the explicit aim of deterring women from undergoing abortions, to continue to provide misleading and false information on reproductive health services. These centers intentionally confuse women into thinking that they are legitimate reproductive health care facilities, even though they provide false, biased information and often do not provide actual medical services. Moreover, it is deeply concerning that the Court’s majority does not consider the provision of accurate information on the full range of reproductive health services as part of the informed consent process or as an aspect of ethical professional conduct. Most critically, however, the majority decision seems to have missed considering the interests of the most important people within this entire debate: the women who are seeking pregnancy-related services. Women should be able to decide for themselves what they would like to do with their pregnancies. In doing so, they deserve to have access to accurate, evidence-based and unbiased information. This fact alone should qualify as a “compelling interest” that California, as well as other states and governments, have the right to protect in a manner that they see fit.
With the NIFLA case, the opponents of reproductive rights have successfully used the First Amendment to chip away at women’s health, as well as their rights. Not only does this impact women’s right to information, but also their rights to privacy, health, and in some instances, their right to life. Moreover, using the free speech doctrine in a manner that contradicts medical ethics and human rights will harm more than reproductive health and rights. As judges reflected in the dissent, “using the First Amendment to strike down economic and social laws…will…obscure, not clarify, the true value of protecting freedom of speech.”
While this decision will undoubtedly affect reproductive rights in the US, it may also be influential globally, especially as the tactics from the conservative movements are migrating across borders. As stakeholders concerned about reproductive health and rights, it is critical to work across sectors, as well as borders, to ensure that women have access to comprehensive, evidence-based sexual and reproductive health services, in order to realize their fundamental rights.
Please note that blog posts are not peer-reviewed and do not necessarily reflect the views of RHM as an organisation.