Legal Case Summary

We'll hear argument this morning in case number 16, 1140, the National Institute of Family and Life Advocates versus Besere. Mr. Ferris? Mr. Chief Justice, and may it please the court. California took aim at pro-life pregnancy centers by compelling license centers to point the way to an abortion and imposing onerous advertising rules on unlicensed centers that do not provide ultrasounds or any other medical services. The state then provided exemptions for all other medical providers who serve pregnant women. This law targets a particular topic of discussion, employees compelled speech, and is directed at disfavored speakers with disfavored viewpoints. For good be the situation, take the other side. If the state law were that all women's health providers that perform abortions would have to tell the patients. If you would like to carry the pregnancy to term, you will have access to a clinic that will assist them, provide adoption facilities they might contact, or provide instruction on how to care for infants. Suppose that were the statute. Would that be untransitution? No, Your Honor. This court decided a very similar case in the casey decision from Pennsylvania. Pennsylvania imposed that requirement in the context of an informed consent discussion. Informed consent is triggered by a doctor proposing to perform a particular medical intervention. Medical interventions are surgeries, abortion is a medical intervention, and in that case medical interventions require the discussion of the benefits of the procedure, the risk of the procedure. But why is it also informed consent? Were you honored? So that the patient will know what the array of services available to her? Your Honor, the services provided by our license centers are not medical interventions. Perhaps the best explanation is of Planned Parenthood Center in Pennsylvania did pregnancy tests and ultrasounds, but did not perform abortions requiring that Planned Parenthood Center. They talked about abortion, encouraged abortion. That would be unconstitutional to compel them to give this disclaimer because it's not a procedure. Justice Ginsburg can protect her own question, but I was interested. Her question is a hypothetical case. The hypothetical case is doctors who are offering abortion services have to say that if the pregnancy is carried to full term, there's assistance. Your Honor, that would be a hypothetical case. I understand, Your Honor. If the State anchors that in the informed consent framework, then it would be considered under the casey legal principles, because in casey this Court recognized that- Sotomayor, Justice Ginsburg, does an anchor it under any- it just- that's what the law is, what it says

. If you are an abortion provider, you have to tell patients that if they want to carry the pregnancy to term, they can have assistance, call this number. Your Honor, yes. That is in the context of proposing a medical intervention describing the alternatives in this Court in Harris versus McCray and in casey indicated that the State has an additional interest beyond the health of the woman in the interest of advancing the life of the unborn child to a degree. It can't go too far. But you're saying that if there is a non-medical facility, I mean, I don't want to put words in your mouth. This is a question. If there is a non-medical facility, that the State has reason to think is- is- is- is telling women about only one set of options and not another set of options, but here, the case would be they're only telling women about abortion providers and they're not telling women about other ways that they may be able to complete their pregnancy. That the State could not impose a requirement that that facility post a notice saying, in fact, there are many kinds of facilities in the world and some are abortion providers and some are crisis pregnancy centers and some are something else that that would not be permissible. Your Honor, that would be decided since it's an unlicensed facility that the requirement is being framed up. That would be judged under strict judicial scrutiny and I don't believe it would be required. If in the licensed context, however, it would still be the same framework, but the analysis would be slightly different. Because it's here in this case is being- Sotomayor, I guess I'm not sure licensed unlicensed. You were suggesting that everything turned on whether a medical procedure was going to be performed and my hypothetical was designed to take out the medical procedure. In other words, this is a facility that just refers women, but it's refers women only to abortion providers and the State decides we don't want facilities that refer women only to abortion providers. We want facilities that will tell women about the full range of their options and so the question is, would a requirement that such a facility post a notice saying there actually are a lot of options and here's how you can access them? Would that be unconstitutional? Yes, Your Honor, because under your hypothetical it's a targeted law. It's aimed at particular people and not given to all doctors who diagnose and confirm pregnancies. What if it wasn't targeted? What if there were a state law that required every doctor or facility that provides medical treatment for pregnant women to post a notice setting out the full range of options available to those women and where they may obtain services at no cost if those are available? Would there be anything wrong with a law like that? Or, Your Honor, if it's done in a manner similar to what's being done here in California, to require pro-life doctors, whether in a clinic or otherwise, to point the way to an abortion facility and to facilitate abortion would be constitutionally problematic. What if it did that to, what if this notice provided for a set out all of the options and it applied to everybody? So it would apply to pro-life facilities, but it would also apply to clinics that perform abortions. I understand. And provide no other form of assistance for pregnant women. Your Honor, I, the, I think the outcome would still be the same. And perhaps it would rise in a refraction. I'm sorry, the outcome would still be the same. As my prior answer, I'm sorry, Your Honor. And that was what? And that is, it would be unconstitutional to require that statement to a doctor who's pro-life principally because of the free exercise issues that would arise in that case

. But this case is different because not only is the requirements of which doctors have to give the notice, Jerry Mandered, the notice itself is Jerry Mandered. It is not giving women all their options. The notification required says that the State will pay for abortion services, but it does not tell California women it will pay for pregnancy. There are a lot of different things. I mean, the simple, basic thing, if you can just say it as simply as possible. In law, as you well know, what is sauce for the goose is sauce for the gander. And so I think what's bothering from these questions, people, as it bothers me. There are pro-choice states and there are pro-life states. All right, so if a pro-life state can tell a doctor, you have to tell people about adoption. Why can't a pro-choice state tell a doctor, a facility of whatever it is, you have to tell people about abortion? Say, that's simple. The one we've said you can make a doctor who is very pro-life, tell her about abortion? Okay, I've got it. And why don't we have to say to keep sauces the same? Well, you're a pro-choice state then. You can make these people tell them about abortions. Yonner, if it is simply a line of demarcation about your position on abortion, that would be unconstitutional in any state. But the laws that have been upheld are doctors who are going to perform abortions. Not doctors who do. So you want to draw a line as to whether it's actually the doctor medical treatment about to do it as not. Yes, please. Okay, I got it. My other question, and the only other one I have, is you have a totally different line in which you are attacking this, and that is you say, which is certainly a point, that this statute picks out 60 to 70 really pro-life facilities and says, you have to post these signs, but nobody else does, right? Isn't that basically- That's correct, you're on- Okay, now what are, that sounds like you have a point there, if that's correct, but there's not have to be a trial on that. What did you argue to this is just a preliminary injunction, don't you have to have a trial or present some evidence? I don't know what your evidence is, I don't know what the evidence is on the other side. And can we decide that without knowing the evidence? Well, Your Honor, the gerrymandering of the statute is evidence from the face of the statute. The way the statute works is that it begins by only regulating clinics that are licensed under Section 1204 of the California Code. That is limited principally to nonprofit community clinics. So all doctors in private practice are out of the statute to begin with, and the state admits this in its brief

. Additionally, among those nonprofit clinics, the clinics that are in general practice are exempted out even though they serve pregnant women. Then you take the class, the last gerrymandering in the statute is among those that are principally giving pregnancy services if you're willing to sign up for the State's Family Pack Program, which requires you to dispense abortifation drugs, then you're out of the program as well. So through this clever series of legislative gerrymandering, the State has ended up with the result that only nonprofit pro-life pregnancy centers are required to post the notice. And the notice itself is biased. Well, along those lines, one of the questions occurs to me that's similar to Justice Breyer's with respect to the adequacy of the record we have for unlicensed clinics. We don't have a lot of evidence with respect to the nature of the burden that would be imposed by the 48 font requirement on all ads. There's some evidence in the Amicus briefs that it might be like a $9,000 month tax for advertisements. But what do we do about the lack of a record here and whether we should wait for an as-applied challenge? As the government suggests. Your Honor, this court faced a similar situation than Ibanez case where there was a detailed disclosure required a certain financial profession. And this court didn't have a financial record, it didn't have a financial record in the Miami-Herald case, either. We just simply read the statute and made common sense inferences. In the advertising context, the rule is the font must be larger than the main body of the ad or the same size as the main body of the ad with special fonts and colors. If that's the case, think of a Chevrolet ad where the warnings about or the disclaimers about financing had to be as big or bigger than the word Chevrolet. That is not an effort to inform people. That's an effort to clutter the ad and drown out the message of the ad. We don't know what kind of adjustments might have been made because this case went off. Without any kind of evidentiary hearing, as was pointed out. But to test what your position is, suppose the law had been simply the people who don't provide abortions or contraceptive services would have to say we don't perform abortions and we don't provide contraceptive services period. Then that would be, everybody would know what's being offered. Would that be constitutional? Not if it's done in a targeted fashion. Again, if all doctors in California who treat pregnant women are under the same requirements, but when there's special imposition upon a targeted group of people because they don't like their position on abortion, that is the form of targeting that this Court outlawed in Surrell. And that's what's going on here in California. Can you please explain to me what the difference is between the license and unlicensed in terms of the services? Certainly. And then I have a question based on that. But you seem to be basing your argument on the point that at least the unlicensed people are not providing procedures, correct? They're not providing any medical services

. Well, they are advertising themselves. I looked at one of a few of them. An exemplary of this is the Fallbrook pregnancy resource center website. And I'm fairly sophisticated. There's a woman on the homepage with a uniform that looks like a nurses uniform in front of a ultrasound machine. It shows an exam room. The text of the page titled abortion says Fallbrook will educate clients about different abortion methods available and describe in medical terms different abortion procedures. The website also says clients will be evaluated by nurses. And that they follow all HIPAA regulations, which is they're not a medical provider, they don't have to follow HIPAA. If a reasonable person could look at this website and think that you're giving medical advice, would the unlicensed notice be wrong? Your honor to answer the first part of your question. Are unlicensed facilities do not provide any medical services being defined as? But they do provide medical advice. Well, they provide advice on the topic of pregnancy, which is basically- So let me ask you, how's that different from what a doctor does? When you're going for a pregnancy, you see the doctor and the doctor will describe, hopefully, the benefits of a pregnancy and perhaps its risk because depending not all pregnancies are without complications. So this is consulting about a medical condition. How is that any different than Casey? You come in to talk to an doctor about abortion. The state says you have to tell the person the alternatives. Your honor. So if you're going to choose to talk to people about- If you're a non-licensed facility about pregnancy, why shouldn't you tell people that you're not a doctor? Well, your honor in Casey again, the doctors that were being regulated were the ones that were performing abortion. The court made note in Casey that it upheld that requirement because it was parallel to the general practice of informed consent. Unlicensed people who talk to women say you can choose parrardhood, you can talk about adoption. They talk about the issue of pregnancy to be sure- So is it okay for- Is it wrong for a state to tell agencies who give a device on immigration rights? It's a couple of states like this who say if you're going to give advice on immigration matters, you better tell people you're not a lawyer. Those are unconstitutional? No, your honor. That New York statute that does that gives those immigration people who are required to give a notice, the ability to intervene in cases and matters. That would otherwise be the practice of law. And so what that amounts to is similar to a statute referred to by the State in its brief, where naturopaths and other alternative providers are clearly otherwise engaged in the practice of medicine, are allowed to do so if they give this- And the redesigning medicine. Medicine is defined by the state

. You need a license to practice medicine. True. In normal circumstances- So if you're giving people advice about pregnancy when you're not a licensed facility, please explain to me what is both misleading, incorrect, or suggestive in any way that a person has to do something like go to this doctor, how is it doing anything other than telling people that despite how the picture looks on the website, this is not a medical facility? Your honor, is illegal in California to practice medicine without a license? Is illegal to pretend to practice medicine without a license? If that's what's going on here, surely the California would have found a way to do that before you- Well, in this case, I didn't go beyond the record to look on the internet because I don't think we should do that, but I do have a hypothetical. What would happen if an unlicensed entity, unlicensed center, just had a billboard that said, choose life. Would they have to make the disclosure? Yes, your honor. All right, so they'd have to make a 20-line or a 20-word, how many words in it? I forget. Right, it would be 29 words. 20-29 words. In the same size font- In the same size as the choose life. And a number of languages, whatever is required by that county. We can ask the State of California. Will the State of California disagree with that, do you think? I don't think they'll disagree with that. Because it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute. Yes, your honor, that's our position. Mr. Ferris, can I ask, you've been pinning a lot when you've tried to distinguish Casey on the idea of informed consent. And certainly some of the requirements in Casey are informed consent in the way we would understand that talking about the risks of various procedures, all the things that we want doctors to talk about when we go to them and seek medical care. But there were definitely requirements in Casey that don't have much to do with informed consent as I've ever understood it. The doctor having to inform patients about that medical assistance benefits may be available for childbirth and neonatal care. And inform women that the father would be liable to pay child support. So those kinds of requirements, they just don't seem to have much to do about informed consent. And they are, and this goes back to Justice Breyer's, so as for the goose point, they're really the exact flip side of the requirements in this case. So how am I supposed to think about that? Your honor, they are triggered by a medical intervention rather than in this case it's triggered by a discussion. I realize that that's a factual difference that there's a doctor in the room and in one case there's not. But these are not informed consent requirements

. Your honor, this court held they were in Casey because they were components of informing women about the alternatives to the abortion process. I see that my time has got to the point that I'd like to reserve the balance for rebuttal. Thank you, Your Honor. Thank you, Council. Mr. Wall? Mr. Chief Justice, and may I please the court. The first amendment allows states to require truthful factual disclosures about one's own goods or services. What the first amendment does not allow and what California has done is to require pregnancy centers to make disclosures about services they do not provide, and that would violate their most deeply held beliefs without any showing by the state that it truly needs to compel speech rather than speak its own message. What about if the law were instead if you are providing women's health services, you have to list all the services that you provide. Now it would apply to everybody. It would apply to facilities that provide abortion and contraceptive services, and it would apply to the legal care. Everyone, like the food, you have to restore the ingredients. Yes, I think if California said to all providers across the board in the state, you've got to put a notice upon the wall that lists the services you provide. That looks to the United States like truthful factual information about what you're doing. That seems like pretty close to the core of Zouter. I think the concern here is that the license notice in California and similar statutes in two states, Hawaii and Illinois, are really different from the vast bulk of disclosure requirements like that one. I didn't understand the question to be along the lines that you've answered. It's not simply a requirement of whether or not the facility must list the services they provide. The question is, can they be required to list services that they don't provide, but that may be provided also. That wasn't my question was, does everyone in the women's health care business at the state decides we want you to tell the public what you provide? What you provide, that's all. I may have misunderstood the question. To the extent that notice is about your own services, we think that is permissible. It's a truthful disclosure about your own services. As you move away from that in the way that three states have done, then I think you're triggering height and scrutiny under the first amendment

. Which in your view, family planning clinics do not have to tell any woman about adoption? I think it depends on whether it's time. They don't provide adoption, it's not their service. As, as Petitioner was saying, if it is just a center that councils people on abortion in a general sense, no, it doesn't. It's a center that helps women plan their families. That's what it is. Now, it's not, they don't have doctors who are performing abortions there. I'm just saying it's a family planning center. Okay? That's an information center. My point is the same. There are millions of people in this country who have views on this subject that are absolutely opposed one to the other. So that, to me, suggests the law should keep it as simple as possible. And that's why sauce for the goose, sauce for the gander. I mean, we have the law is permissible, which says, doctor, you must tell the woman about adoption. Then why shouldn't the law say family planning center? You must tell the woman about abortion. Sounds even handed? Sounds as if everybody in the same business has had the same rules? That you, the government and the Nifola are trying to make a distinction there. And I need to know if you're right, the only distinction I hear so far is one has a doctor about to perform, and the other has just a counselor. Is there any other distinction possible? Justice Breit, that is the crucial distinction. I agree with you on the sauces for the goose and the gander. But when you are performing a medical procedure and you're making disclosures about your own services, what the plurality opinion in case he says is, this is a page 80. It was about doctors, I agree with that. That's what I think for most people, you'd think family planning. You know, family planning, that's the category. And the woman will make a decision, and then the state can tell them some things they have to say. And we know they can tell them about adoption, they can make them tell them about adoption. So why can't they make them tell them about abortion? Because Justice Breyer, that when you are going in to have a procedure and you've got to make certain disclosures, that's a disclosure related to let him finish the answer, please

. That's a disclosure related to the service that you're providing. And then it's just a question of how much you have to disclose, and Casey drew that pretty broadly to say it, P-83. You've got to make an informed choice. And all the government is saying, we're not saying not to go to the gander, we agree. What we're saying is the more you get away from that kind of a disclosure that's about what you're doing with that patient or customer client, the more scrutiny you ought to get under the first amendment. But I think the question is, why shouldn't there be a state says, you know what, this is the regime we want. We want to say to family planning clinics that they should put up a poster saying, we do family planning, we do not do adoption. And we want to say to crisis pregnancy centers along the lines of petitioners here. We do adoption, we do not do family planning or abortion. And the state thinks that would be a good system because when a woman goes in to either one of these kinds of places, they'll know what's there and they'll know what's not there. And why would that be problematic? Well, I think because once it's no longer tied to the specific goods or services that the clinic or center or whomever is providing, then the more we ought to be worried that they're making you just advertise what other people are doing. And this case is even one step beyond your hypothetical because it's not even saying to the clinics, say what you do and don't do. It's saying, look, we want people to know about services that the state provides. It's just how how is that different than Casey? In Casey, we required doctors to hand out state-created materials, telling the women about what services the state and others provided. Adoptions, centers, fathers had to pay things. Now, I think your distinction and you keep repeating it is these centers. I'm assuming both the license and unlicensed ones are not doing procedures. But I don't know what an ultrasound is if not a procedure. I don't know what a pregnancy test is if not a procedure. I don't know how counseling on the pregnancy state is not part of medical advice in the same way a doctor gives it when he's considering an abortion procedure. I don't understand the difference. So, both of them are doing medical-related procedures. And both are being asked, the chief said there's a distinction in not advertising someone else's services, but in Casey, we permitted it. So, please explain to me again why there's a difference here. So, just a sudden, I agree with everything you said in the back half there

. And if California were coming in and saying, before you license clinic, perform an ultrasound, you've got to provide certain information to make sure that's an informed choice by that woman to get the ultrasound in the face. And if you have a case of risks and alternatives, then it's like Casey and the question is just how much disclosure do you have to provide and Casey, I think, gives us important guidance on that. California's notice isn't doing that, at least on the license side. On the license side, it's not helping the women who come into the clinic make an informed choice to opt into one of the medical procedures. And I'm not disputing that ultrasound and the rest are procedures that can trigger those kinds of disclosure requirements. It's saying we have a generalized interest in having them know that we provide some low and free cost services. And if that's their generalized interest, that's tailor made to an obvious alternative which is let the state do what pregnancy centers do and just help people about what it provides. For your time expired, could I ask you something about your brief that troubles me? And that is the government's request that we recognize a new category of speech called professional speech which is subject to a lesser standard of review. I mean this case is very important in itself, but adopting this new category of speech would have far reaching consequences. And I'd like you to explain why that is consistent with Stevens and other cases where the court has recently said we are not going to recognize any new categories of unprotected speech. And how you would define the boundaries of professional speech and there have been a lot of cases on there have been some cases on this in lower courts, but just take a couple of examples. Journalists are professionals, so would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The fourth circuit said that a fortune teller is a professional. How about somebody who writes an advice column for parents? Wouldn't we be getting into very dangerous territory if we do this? So Justice Alito, there's a lot there and I just want to make a few points and I think the third circuit's opinion in King does a pretty nice job of this. The courts already talked about professional speech. Now it's often talked about it in the context of commercial speech and it's lumped them together in cases like Zouter and O'Rolle. But what we tried to do in our brief was to say look, they're similar doctrines, they overlap, but they have somewhat different origins and historically there are certain professions that are regulated. That wouldn't include fortune tellers, it wouldn't include economists or journalists, but it would include doctors and lawyers and maybe accountants. And so we do think that there is some room for the states historically in that area and what we've tried to say is whether it's Zouter or some equivalent for professional speech, if it's a disclosure about what you're doing, we should think that's a fairly low level of scrutiny. And the more that we shift away from that, even in the commercial and professional speech box, we may not get to strict scrutiny, but it is heightened scrutiny and the states licensed notice can't satisfy it. I would say if the court goes all the way to strict scrutiny, every corrective disclosure that a manufacturer has to make about some product that it's put out in the public that has a risk. I think would get strict scrutiny and our concern is that's going to dilute strict scrutiny and we're concerned that's going to undermine the first amendment. Thank you, Mr. Walle. Thank you. Mr

. Klein? Mr. Chief Justice, and may it please the court. The interest served by the licensed disclosure is very much like that of the disclosure in Casey, promoting informed choice by a patient. More specifically, it allows, it empowers the woman by explaining that her financial circumstance does not make her unable to access alternative and supplemental care, including full prenatal and delivery care that petitioners do not themselves supply. And it gives her that knowledge in time to be useful because pregnancy and medical care is extraordinarily time critical. There is a sense when you read this statute, Mr. Klein, there's at least a question that arises as to whether this statute has been jerry-mandered. So would you speak to that? Because if it has been jerry-mandered, that's a serious issue. In other words, if you know it's like, look, we have these general disclosure requirements, but we don't really want to apply them generally. We just want to apply them to some speakers who speak we don't much like. You honor, the disclosure is targeted at women who seek free care for pregnancy, not at any particular viewpoint. And clinics that, by their very licensing status, provide free or sliding scale low-cost pregnancy care, are the ones where those women are going to be found and where this information is immediately useful to them. If you have a law that's neutral on its face, but then it has a lot of crazy exemptions. And when you apply all the exemptions, what you're left with is a very strange pattern. And gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. You think it's possible to infer intentional discrimination in that situation? Yes, that kind of hypothetical can support this. Okay. So let me ask you about some of these exemptions, which I think are hard to understand. Why does this apply only to clinics whose primary function is providing service to pregnant women? You could have a small clinic, let's say it's, it has 30 pregnant women come in a month, but that's the primary thing it does. Then you could have a big clinic that has 100 pregnant women come in a month, but it does so many other things that pregnancy is not the primary concern. Why does the law apply to one and not the other? Well, you know, that serves the purpose of having the disclosure mostly made in the context in which it's useful as opposed to being made in a lot of context where it's not. And this court has said that legislatures should be encouraged to apply speech requirements more narrowly when they can. Rather than, I don't understand that. Why does it apply almost only to non-profits and not for profits? If the purpose is to get this information out to poor women, don't you think there are examples of poor women who stumble into a for-profit facility? Wouldn't it be beneficial for them to know that they could get treatment at no cost through the state? Why are most for-profits exempted? You're on as a category for-profit clinics do not seem to treat primarily women who need free and sliding costs care in the same way. Now, I will say it's always possible to imagine a new boundary for the law, but under intermediate scrutiny, a law does not need to be perfect and a legislature can concentrate its efforts that wear the need for the law. What about individual doctors? Why are they exempt? You're on our individual doctors specialized as a category in treating people who have a way to pay for care, whether they're already enrolled in Medicaid or health insurance or whether they just have the finances. Free clinics are not on the same level. When you put all of this together, you get a very suspicious pattern. I don't know that we need to go into statistics about what the percentage of covered clinics are pro-life and what or not. But we have an amicus brief from a party in the state court case where the state court held that this law is unconstitutional. And according to their statistics, 98.5% of the covered clinics are pro-life clinics. You speak of that? Yes, and I understand we're speaking outside of the record here, but that amicus evidence in the state court did not was off by I think a factor of 10 in terms of how many covered non. I mean, it differed by a factor of 10 when it told the state court how many covered non-antiborsion. So what is your position on that? What's the percentage? Your Honor, the state does not have firm numbers on this. We have done a preliminary assessment which found a significant number of non-antiborsion covered facilities. However, I will also say that deriving this from purely state databases is very tricky because they rely on self-reporting that's hard to interpret as to who really does primarily pregnancy care. It's exactly the kind of thing where record would be used. Could you say a few words about how these boundaries came about? In other words, you have these various lines that the statute draws and then it has these exemptions. And what was the state thinking? I mean, you know, and I realized that the state, you know, there are lots of people who were thinking different things. But is there, give me a little bit more about your theory of the case even as to why these exemptions exist and why these lines are drawn. You would say, well, we go where the problem is, but tell me how you knew where the problem was, tell me what you thought the problem actually was. What were you doing? What were you trying to do? Well, let me start with the question of what the problem is. And the problem is that the state has overseen, the state legislature has overseen an expansion of public medical care in California. But as experienced, that publicity campaigns invariably leave a gap that was highly concerning to them in the pregnancy context because of the medical issues and because of the severe timing constraints to get care that makes a difference. And so the goal of the statute is to identify women who are seeking pregnancy care and appear unable to pay for themselves or through insurance or public coverage they already have. That's why it's targeted at free clinics. Now, there was a reference to exemptions and the exemption leaving aside the exemption for federal clinics, which I think is obvious. The exemption for medical F-PAC providers reflects that a notice would serve little purpose at a provider which already provides care under those programs and which has the incentive to help women in role in them. One way to think about how a statute like this gets enacted is to say we're, you know, we're really concerned that there are low income women don't have a lot of access to information

. What about individual doctors? Why are they exempt? You're on our individual doctors specialized as a category in treating people who have a way to pay for care, whether they're already enrolled in Medicaid or health insurance or whether they just have the finances. Free clinics are not on the same level. When you put all of this together, you get a very suspicious pattern. I don't know that we need to go into statistics about what the percentage of covered clinics are pro-life and what or not. But we have an amicus brief from a party in the state court case where the state court held that this law is unconstitutional. And according to their statistics, 98.5% of the covered clinics are pro-life clinics. You speak of that? Yes, and I understand we're speaking outside of the record here, but that amicus evidence in the state court did not was off by I think a factor of 10 in terms of how many covered non. I mean, it differed by a factor of 10 when it told the state court how many covered non-antiborsion. So what is your position on that? What's the percentage? Your Honor, the state does not have firm numbers on this. We have done a preliminary assessment which found a significant number of non-antiborsion covered facilities. However, I will also say that deriving this from purely state databases is very tricky because they rely on self-reporting that's hard to interpret as to who really does primarily pregnancy care. It's exactly the kind of thing where record would be used. Could you say a few words about how these boundaries came about? In other words, you have these various lines that the statute draws and then it has these exemptions. And what was the state thinking? I mean, you know, and I realized that the state, you know, there are lots of people who were thinking different things. But is there, give me a little bit more about your theory of the case even as to why these exemptions exist and why these lines are drawn. You would say, well, we go where the problem is, but tell me how you knew where the problem was, tell me what you thought the problem actually was. What were you doing? What were you trying to do? Well, let me start with the question of what the problem is. And the problem is that the state has overseen, the state legislature has overseen an expansion of public medical care in California. But as experienced, that publicity campaigns invariably leave a gap that was highly concerning to them in the pregnancy context because of the medical issues and because of the severe timing constraints to get care that makes a difference. And so the goal of the statute is to identify women who are seeking pregnancy care and appear unable to pay for themselves or through insurance or public coverage they already have. That's why it's targeted at free clinics. Now, there was a reference to exemptions and the exemption leaving aside the exemption for federal clinics, which I think is obvious. The exemption for medical F-PAC providers reflects that a notice would serve little purpose at a provider which already provides care under those programs and which has the incentive to help women in role in them. One way to think about how a statute like this gets enacted is to say we're, you know, we're really concerned that there are low income women don't have a lot of access to information. Don't realize what all their options are. Want to make sure in general and across the board that they get the best information that's available to them. Another way to think about what the problem is and how a statute like this comes about is more targeted. It's to say there are these crisis pregnancy centers all over California and we know that women just go into them and they don't realize what they are and they're being subject to being misled. And we think that this is a terrible problem and it might be that you know that the state could legitimately view that as a problem. There's a much more targeted problem. Whether it's a problem or not, it's much more targeted than the first. And I guess what I'm asking is, is this the second kind of statute or is it the first kind of statute? It's the first kind of statute and the authors verbatim statements. Well, if it's the first kind of statute, then why shouldn't this court take cognizance of the state's other available means to provide messages. If it's about just ensuring that everyone has full information about their options, why should the state free ride on a limited number of clinics to provide that information? Well, you honor the state. The legislature is aware of the shortcomings of other methods as evidenced by the gap that has remained despite their efforts to publicize. Now, what you describe as a free riding, I respectfully submit, is a permissible speech requirement in the professional context. Well, but if you're trying to educate a class of persons about their rights, it's pretty unusual to force a private speaker to do that for you under the First Amendment. You honor, I don't think it's unusual to require a professional to explain alternatives as or additional options that are available as in Casey. And also, as in the laws that have been cited in our brief, the New York State. Or put a put a put a put a put a maybe I'm sorry, maybe you could finish your answer to Justice Kagan's question. Let me ask first, what is the part of Justice Kagan's question? See what I don't I don't even remember which was the first kind of statute anymore and which was the second kind of statute, but I was saying a state could really be responding to a sort of generalized feeling that in general poor women don't have access to information or a state could be responding to a feeling that there are a particular kind of a center that is misleading women as to what they do and don't provide. And I can see this statute arising in either of those two ways and wanted you to tell me why you thought it arose in the first way and not in the second. Right, well let me say I don't think they're exclusive. The primary issue is women not knowing where they can get the free care they need for all of their options including carrying a healthy pregnancy to term and having a healthy baby. But obviously the informational problem is going to be especially concerning where there are cases of deception and so forth. And the legislature had some awareness of this but they didn't draw a statute with that as the primary. See that's what I give up on. I don't know. I came away from these briefs and I think I got the impression that there are about six years of centers, maybe 70, that are really pro-life for religious reasons of different cons

. Don't realize what all their options are. Want to make sure in general and across the board that they get the best information that's available to them. Another way to think about what the problem is and how a statute like this comes about is more targeted. It's to say there are these crisis pregnancy centers all over California and we know that women just go into them and they don't realize what they are and they're being subject to being misled. And we think that this is a terrible problem and it might be that you know that the state could legitimately view that as a problem. There's a much more targeted problem. Whether it's a problem or not, it's much more targeted than the first. And I guess what I'm asking is, is this the second kind of statute or is it the first kind of statute? It's the first kind of statute and the authors verbatim statements. Well, if it's the first kind of statute, then why shouldn't this court take cognizance of the state's other available means to provide messages. If it's about just ensuring that everyone has full information about their options, why should the state free ride on a limited number of clinics to provide that information? Well, you honor the state. The legislature is aware of the shortcomings of other methods as evidenced by the gap that has remained despite their efforts to publicize. Now, what you describe as a free riding, I respectfully submit, is a permissible speech requirement in the professional context. Well, but if you're trying to educate a class of persons about their rights, it's pretty unusual to force a private speaker to do that for you under the First Amendment. You honor, I don't think it's unusual to require a professional to explain alternatives as or additional options that are available as in Casey. And also, as in the laws that have been cited in our brief, the New York State. Or put a put a put a put a put a maybe I'm sorry, maybe you could finish your answer to Justice Kagan's question. Let me ask first, what is the part of Justice Kagan's question? See what I don't I don't even remember which was the first kind of statute anymore and which was the second kind of statute, but I was saying a state could really be responding to a sort of generalized feeling that in general poor women don't have access to information or a state could be responding to a feeling that there are a particular kind of a center that is misleading women as to what they do and don't provide. And I can see this statute arising in either of those two ways and wanted you to tell me why you thought it arose in the first way and not in the second. Right, well let me say I don't think they're exclusive. The primary issue is women not knowing where they can get the free care they need for all of their options including carrying a healthy pregnancy to term and having a healthy baby. But obviously the informational problem is going to be especially concerning where there are cases of deception and so forth. And the legislature had some awareness of this but they didn't draw a statute with that as the primary. See that's what I give up on. I don't know. I came away from these briefs and I think I got the impression that there are about six years of centers, maybe 70, that are really pro-life for religious reasons of different cons. Right, and they don't want to talk about abortions. And then it seemed to me maybe there are a thousand centers altogether in California or several hundred and I really did end up wondering, well, you know all those centers do the poor women really get the information about free abortions? I have no idea. I mean the fact that they may have Cal medical thing doesn't mean they tell everybody about it. I don't know what they're like. So this is my question. Don't we need a trial on this? And I don't see, I mean I'm just telling you right now I have no idea and your answers don't tell me they're not empirical. You haven't told me whether women who don't go to these 67 centers. But do go to say 700 are all informed whether the center is a member of the Cal medical program or not. I don't know whether they're all informed and I suspect that you don't either. And therefore I think trial, that's what they're for. What's the answer to that? Your honor, we agree. You agree. The record at the preliminary injunction stage, which is all this concerns, was not sufficient to support an injunction. At a merit stage, there would presumably be a great deal of evidence on both sides. Mr. Carlin, can we go back to the question of Justice Kennedy? The other side, which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement, this is not a medical facility in 48 point five. I don't think so, Your Honor, unless the facility was, I mean, what subjects a facility to the law, if it's unlicensed, is, this is a page 79a of the Petitioners Appendix, are things like offering obstetric ultrasound sonograms? What if it weren't dealing with the more general principle? What if you had an organization that simply provided adoption services and advertise there is an alternative to abortion, try adoption? Could the state make them include the disclosure requirement that you have with respect to licensed facilities? Because that's an alternative to pregnancy, I would say you'd want to make all the abortion alternatives also fully available and make the low-income women aware of those. Could you impose that requirement on that facility? I don't think so, Your Honor, and it wouldn't, and such a requirement wouldn't be serving the same interest. And let me explain why. These, the licensed facilities provide medical care, page 91 of the Petitioners Appendix, they're complaint, describes medical care they provide to pregnant women. And so women go there. So what additional, what ultrasounds or discussion of family planning, what more would it take to require the adoption center to be covered? Any one of the ones that you have listed for licensed centers? In other words, what would make it subjected to the same kind of requirement as a licensed center? Yeah, at what point, you know, you say, let's say that ultrasounds are out of it. Is the disclosure still required for that facility? I don't think the ultrasounds per se make the difference. What would make the difference as a constitutional matter is, is it licensed as a medical facility and does it provide medical care to people who.

. Right, and they don't want to talk about abortions. And then it seemed to me maybe there are a thousand centers altogether in California or several hundred and I really did end up wondering, well, you know all those centers do the poor women really get the information about free abortions? I have no idea. I mean the fact that they may have Cal medical thing doesn't mean they tell everybody about it. I don't know what they're like. So this is my question. Don't we need a trial on this? And I don't see, I mean I'm just telling you right now I have no idea and your answers don't tell me they're not empirical. You haven't told me whether women who don't go to these 67 centers. But do go to say 700 are all informed whether the center is a member of the Cal medical program or not. I don't know whether they're all informed and I suspect that you don't either. And therefore I think trial, that's what they're for. What's the answer to that? Your honor, we agree. You agree. The record at the preliminary injunction stage, which is all this concerns, was not sufficient to support an injunction. At a merit stage, there would presumably be a great deal of evidence on both sides. Mr. Carlin, can we go back to the question of Justice Kennedy? The other side, which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement, this is not a medical facility in 48 point five. I don't think so, Your Honor, unless the facility was, I mean, what subjects a facility to the law, if it's unlicensed, is, this is a page 79a of the Petitioners Appendix, are things like offering obstetric ultrasound sonograms? What if it weren't dealing with the more general principle? What if you had an organization that simply provided adoption services and advertise there is an alternative to abortion, try adoption? Could the state make them include the disclosure requirement that you have with respect to licensed facilities? Because that's an alternative to pregnancy, I would say you'd want to make all the abortion alternatives also fully available and make the low-income women aware of those. Could you impose that requirement on that facility? I don't think so, Your Honor, and it wouldn't, and such a requirement wouldn't be serving the same interest. And let me explain why. These, the licensed facilities provide medical care, page 91 of the Petitioners Appendix, they're complaint, describes medical care they provide to pregnant women. And so women go there. So what additional, what ultrasounds or discussion of family planning, what more would it take to require the adoption center to be covered? Any one of the ones that you have listed for licensed centers? In other words, what would make it subjected to the same kind of requirement as a licensed center? Yeah, at what point, you know, you say, let's say that ultrasounds are out of it. Is the disclosure still required for that facility? I don't think the ultrasounds per se make the difference. What would make the difference as a constitutional matter is, is it licensed as a medical facility and does it provide medical care to people who... If it provided it as a, as a licensed medical service through licensed medical providers, then the state would have to justify the sufficiently important state interest with the... What's your answer, though? It provides two services, adoption and pregnancy testing. Could you impose the disclosure requirement on that facility? I think it would be much more difficult to justify. I know that's why I'm asking the question. I'm trying to figure out the limits of your argument. I mean, the centers here have a variety of services they provide and you say because of that, we can impose this requirement on them. Now, before we can say yes or no to your argument, I would like to know the limits of it. So a facility that provides adoption services and pregnancy testing, can they be covered by your law? Through a licensed provider? Yes, they could. If said, I don't know what you mean by through a license right? That is all they do. They counsel on adoption and they provide pregnancy testing. Could you require them to say, look, there are other options you may want to consider and therefore here's a disclosure saying, you know, here are the facilities where you can get other options. On reflection, I think probably not and here's the difference because they're providing a so much more limited set of medical services that it may be less. Mr. Klein, can we go back to my question? I have read the law with respect to facility and it requires a facility to do one of two of four things before it qualifies under the law. So abortion, your peer right that they have to one offer ultrasound, obstruct its sonograms or prenatal care, pregnancy or pregnancy testing or diagnosis or three prenatal monogram tests or pregnancy and four collect health data. But they have to do two more more of those things. But let's go back to the question Justice Kennedy asked, one of these medical care facilities says pro life and their name. Is that, are they required to post a notice and you started by answering the question and I don't think you finished. And the answer is no, they're not required to. Because they're not offering in the advertising one of these services. Because they're not right, they're not doing to the public. No, that's not

.. If it provided it as a, as a licensed medical service through licensed medical providers, then the state would have to justify the sufficiently important state interest with the... What's your answer, though? It provides two services, adoption and pregnancy testing. Could you impose the disclosure requirement on that facility? I think it would be much more difficult to justify. I know that's why I'm asking the question. I'm trying to figure out the limits of your argument. I mean, the centers here have a variety of services they provide and you say because of that, we can impose this requirement on them. Now, before we can say yes or no to your argument, I would like to know the limits of it. So a facility that provides adoption services and pregnancy testing, can they be covered by your law? Through a licensed provider? Yes, they could. If said, I don't know what you mean by through a license right? That is all they do. They counsel on adoption and they provide pregnancy testing. Could you require them to say, look, there are other options you may want to consider and therefore here's a disclosure saying, you know, here are the facilities where you can get other options. On reflection, I think probably not and here's the difference because they're providing a so much more limited set of medical services that it may be less. Mr. Klein, can we go back to my question? I have read the law with respect to facility and it requires a facility to do one of two of four things before it qualifies under the law. So abortion, your peer right that they have to one offer ultrasound, obstruct its sonograms or prenatal care, pregnancy or pregnancy testing or diagnosis or three prenatal monogram tests or pregnancy and four collect health data. But they have to do two more more of those things. But let's go back to the question Justice Kennedy asked, one of these medical care facilities says pro life and their name. Is that, are they required to post a notice and you started by answering the question and I don't think you finished. And the answer is no, they're not required to. Because they're not offering in the advertising one of these services. Because they're not right, they're not doing to the public. No, that's not. Show me where that is in the statute. If it's a coverage facility, then any ad that they put out, including one that just says choose life, has to include this disclaimer. We're not licensed. But in order to be a covered unlicensed facility, it has to do two or more. Yes, it has to do those things. So you have a facility that offers pregnancy testing and they advertise that they offer pregnancy testing. That's all they do. And they put up an ad that says choose life they have to put in the disclaimer. Yes, in that circumstance, they may be required to do that. And do you agree that mandating speech that the speaker would not otherwise give, indeed, does not agree with alters the content of the message? Yes, it does. Right. So then you're saying that on this billboard, the state can require that the message be- the content of the message be altered, even though they're not providing medical services. Yes, Your Honor. Because the criteria are designed not to see who's providing medical services, that's taken care of by our unlicensed practice law, it's designed to address instances where the services that are offered and provided could make a woman believe that she's going to be accessing medical services and is spending her time and resources to do that and it's unable to evaluate what she's doing. Now, if we have- If we have- If we have- If we agree with your argument, could the state then amend its statute and say that any evangelical group that has a seven-day rally for pro-life has to give required information of this sort? No, Your Honor. I don't think that would follow that. Well, and even putting aside the free exercise targeting, the- Also, religion is not a part of this calculus in the case that you have? Well, Your Honor, your hypothetical statute did target at evangelical groups that is on its face unconstitutional. So I'm assuming we want to take that out- I think the statute is reasonably red and applied in recognition of its purposes, which are the purpose to prevent women from making their decisions about where to go based on mistaken confusion about what's offered. That's a classic zoutarour purpose. Now, if- He was a question raised about 13 different languages and what a burden that- That would be. I don't know what the state's answer to that. It means one thing just to say that we are not a licensed medical provider. But if you have to say that those two sentences in 13 different languages, it can be very burdensome. Your Honor, if the statute- If in application to a kind of ad that the centers otherwise have been running and would run, if it makes it too burdensome to place those ads, the statute would be unconstitutional as applied to that. What is the situation for Los Angeles County? This is California law

. Show me where that is in the statute. If it's a coverage facility, then any ad that they put out, including one that just says choose life, has to include this disclaimer. We're not licensed. But in order to be a covered unlicensed facility, it has to do two or more. Yes, it has to do those things. So you have a facility that offers pregnancy testing and they advertise that they offer pregnancy testing. That's all they do. And they put up an ad that says choose life they have to put in the disclaimer. Yes, in that circumstance, they may be required to do that. And do you agree that mandating speech that the speaker would not otherwise give, indeed, does not agree with alters the content of the message? Yes, it does. Right. So then you're saying that on this billboard, the state can require that the message be- the content of the message be altered, even though they're not providing medical services. Yes, Your Honor. Because the criteria are designed not to see who's providing medical services, that's taken care of by our unlicensed practice law, it's designed to address instances where the services that are offered and provided could make a woman believe that she's going to be accessing medical services and is spending her time and resources to do that and it's unable to evaluate what she's doing. Now, if we have- If we have- If we have- If we agree with your argument, could the state then amend its statute and say that any evangelical group that has a seven-day rally for pro-life has to give required information of this sort? No, Your Honor. I don't think that would follow that. Well, and even putting aside the free exercise targeting, the- Also, religion is not a part of this calculus in the case that you have? Well, Your Honor, your hypothetical statute did target at evangelical groups that is on its face unconstitutional. So I'm assuming we want to take that out- I think the statute is reasonably red and applied in recognition of its purposes, which are the purpose to prevent women from making their decisions about where to go based on mistaken confusion about what's offered. That's a classic zoutarour purpose. Now, if- He was a question raised about 13 different languages and what a burden that- That would be. I don't know what the state's answer to that. It means one thing just to say that we are not a licensed medical provider. But if you have to say that those two sentences in 13 different languages, it can be very burdensome. Your Honor, if the statute- If in application to a kind of ad that the centers otherwise have been running and would run, if it makes it too burdensome to place those ads, the statute would be unconstitutional as applied to that. What is the situation for Los Angeles County? This is California law. You should know the answer. Somebody is going to put up an ad, a covered, un-licensed facility, post an ad in Los Angeles County. In how many languages must they print the disclosure, the disclaimer? It would be 13 and it would be if a plaintiff showed standing and made a record of the kind of ad that they used to run and that it would be impossible to run it that way. It would be unconstitutional. But that requires actual standing and- What kind of an ad would- As to what type of ad would that not be unconstitutional? Well, Your Honor, there is nothing in the record about what ads these plaintiffs do in fact run. So we don't know. We do know this doesn't apply to TV and radio ads, for instance. I want to make sure if I made, to address one thing- So you want me to have a remand for them to tell the court what a billboard is? Because I don't know that. Your Honor, I- There's a lot of things we don't know, but I think we know what a billboard is. We don't know what ads these petitioners or Nifflus members run. It's not in the complaint and for a preliminary injunction, the court was not and the language issue wasn't raised at all on preliminary injunction. So the court did not abuse its discretion with respect to that. What about- I mean, what are the legislative findings about false and misleading representations? Has California ever brought charges against any of these places for false and misleading advertising? I'm not aware that the State has. I believe that the City and County of San Francisco has, for instance. But in any case, that doesn't address the- Such a procedure would not be superior. First, that kind of policing that kind of issue would not necessarily be more speech protective since it might involve undercover patients, record subpoenas, site visits- Because- But yes, it would have the virtue of applying evenly to all persons and all industries and a law that is very familiar. I mean, any fraud provisions in commercial speech are well known and- And don't pose any of the problems we've been discussing today. So why wouldn't that be a superior mechanism for addressing these concerns? If- If we're talking about a narrower set of concerns- Right. Just a vague fraud concerns. So the narrower concerns, which are not the only ones here, it could be significantly more- Or at least it's an open question about whether it would be as or more speech intrusive to be really getting into everything that the petitioners are saying to assess it. As opposed to requiring a two-sentence notice that mostly obviates the need for that, because it gives women the information to protect themselves and make informed decisions in the very limited time that they have available. Simply by seeing the notice to call the government. And- The one-the one is prophylactic and requires you to compel speech from someone else. That implicates First Amendment concerns. The second is- It puts the burden on the government to prove that someone has abused their free speech rights

. You should know the answer. Somebody is going to put up an ad, a covered, un-licensed facility, post an ad in Los Angeles County. In how many languages must they print the disclosure, the disclaimer? It would be 13 and it would be if a plaintiff showed standing and made a record of the kind of ad that they used to run and that it would be impossible to run it that way. It would be unconstitutional. But that requires actual standing and- What kind of an ad would- As to what type of ad would that not be unconstitutional? Well, Your Honor, there is nothing in the record about what ads these plaintiffs do in fact run. So we don't know. We do know this doesn't apply to TV and radio ads, for instance. I want to make sure if I made, to address one thing- So you want me to have a remand for them to tell the court what a billboard is? Because I don't know that. Your Honor, I- There's a lot of things we don't know, but I think we know what a billboard is. We don't know what ads these petitioners or Nifflus members run. It's not in the complaint and for a preliminary injunction, the court was not and the language issue wasn't raised at all on preliminary injunction. So the court did not abuse its discretion with respect to that. What about- I mean, what are the legislative findings about false and misleading representations? Has California ever brought charges against any of these places for false and misleading advertising? I'm not aware that the State has. I believe that the City and County of San Francisco has, for instance. But in any case, that doesn't address the- Such a procedure would not be superior. First, that kind of policing that kind of issue would not necessarily be more speech protective since it might involve undercover patients, record subpoenas, site visits- Because- But yes, it would have the virtue of applying evenly to all persons and all industries and a law that is very familiar. I mean, any fraud provisions in commercial speech are well known and- And don't pose any of the problems we've been discussing today. So why wouldn't that be a superior mechanism for addressing these concerns? If- If we're talking about a narrower set of concerns- Right. Just a vague fraud concerns. So the narrower concerns, which are not the only ones here, it could be significantly more- Or at least it's an open question about whether it would be as or more speech intrusive to be really getting into everything that the petitioners are saying to assess it. As opposed to requiring a two-sentence notice that mostly obviates the need for that, because it gives women the information to protect themselves and make informed decisions in the very limited time that they have available. Simply by seeing the notice to call the government. And- The one-the one is prophylactic and requires you to compel speech from someone else. That implicates First Amendment concerns. The second is- It puts the burden on the government to prove that someone has abused their free speech rights. And-and this court's normally pre-jellously protective of speech. So why isn't- Again, that latter approach preferable? For the same reason that it wasn't a necessary step in Casey. Because in the regulation of professional speech, the government, given the close and reliant relationship that the patient has on her physician, can require a certain amount of speech to ensure that the-that the patient makes informed decisions about very important matters. The main difference from Casey is how much less burdensome this disclosure is, because there's more flexibility in how it can be delivered. And because it's only giving a phone number for the patient to call and get information from the government, rather than requiring the physician to herself hand over a complete state written pamphlet, which is what the disclosure in Casey required. Would it be fair to say-and I still don't have a full answer to my question? All right. Pro-life, nothing else. A unlicensed facility, it meets all of the criteria. Has it add that it's just pro-life and puts its name? Does it have to give the notice? Yes or no? Yes, if it meets the other criteria. And it's possible- Is that- That seems to me more burdensome and wrong. Because it's not tied to an advertisement that is promoting medical services. It may continue. It's possible that that kind of as-applied challenge would result in invalidating that application. But as in Ayadi, injunctive relief addresses particular problems. Thank you. Thank you, Council. Mr. Ferris, you have five minutes remaining. Thank you, Mr. Chief Justice. I'd like to first address Justice Kagan's concern about the gerrymandering issue. On page 5 of our reply brief in note 2, we point out the state's website for where the state tells low-income women how they can go to private doctors and get services for pregnancy. Yet those doctors are all exempt from this act as are all non-profit clinics that have the general kind of practice. The Justice Alita's question described. As to the ad bird burden, the Amicus heartbeat international on page 24 of their brief gave a mock-up of what an ad would look like

. And-and this court's normally pre-jellously protective of speech. So why isn't- Again, that latter approach preferable? For the same reason that it wasn't a necessary step in Casey. Because in the regulation of professional speech, the government, given the close and reliant relationship that the patient has on her physician, can require a certain amount of speech to ensure that the-that the patient makes informed decisions about very important matters. The main difference from Casey is how much less burdensome this disclosure is, because there's more flexibility in how it can be delivered. And because it's only giving a phone number for the patient to call and get information from the government, rather than requiring the physician to herself hand over a complete state written pamphlet, which is what the disclosure in Casey required. Would it be fair to say-and I still don't have a full answer to my question? All right. Pro-life, nothing else. A unlicensed facility, it meets all of the criteria. Has it add that it's just pro-life and puts its name? Does it have to give the notice? Yes or no? Yes, if it meets the other criteria. And it's possible- Is that- That seems to me more burdensome and wrong. Because it's not tied to an advertisement that is promoting medical services. It may continue. It's possible that that kind of as-applied challenge would result in invalidating that application. But as in Ayadi, injunctive relief addresses particular problems. Thank you. Thank you, Council. Mr. Ferris, you have five minutes remaining. Thank you, Mr. Chief Justice. I'd like to first address Justice Kagan's concern about the gerrymandering issue. On page 5 of our reply brief in note 2, we point out the state's website for where the state tells low-income women how they can go to private doctors and get services for pregnancy. Yet those doctors are all exempt from this act as are all non-profit clinics that have the general kind of practice. The Justice Alita's question described. As to the ad bird burden, the Amicus heartbeat international on page 24 of their brief gave a mock-up of what an ad would look like. When you have simply pregnancy, have questions and a phone number. And all the languages required in Los Angeles County. That's what it would look like. And it's clearly burdensome. And the unlicensed that I think the last answer from California was correct is it would be triggered if they are otherwise mandated by the law. I'd last like to do. The answer was that this was not brought up in this case until now. And it could be aired below. Your Honor, that's not correct. It was raised below as our reply brief sets out. It's in the complaint. It's in the briefing in the district court. It's in the oral argument in the district court. It's in the briefing and oral argument in the court of appeals. All those details are on footnote five of our reply brief. The good for the goose, good for the gander concern. Here's what's going to happen if California's laws upheld. A pro-life state is going to find out that there isn't no difference anymore between people who perform abortions and those who counsel about it, who talk about it. If merely talking about abortion is sufficient to require you to give pro-life in duration, we have taken a big step in a wrong direction of politicizing the practice of medicine. If everyone who recommends abortion can have to give these kind of... I mean, that's..

. When you have simply pregnancy, have questions and a phone number. And all the languages required in Los Angeles County. That's what it would look like. And it's clearly burdensome. And the unlicensed that I think the last answer from California was correct is it would be triggered if they are otherwise mandated by the law. I'd last like to do. The answer was that this was not brought up in this case until now. And it could be aired below. Your Honor, that's not correct. It was raised below as our reply brief sets out. It's in the complaint. It's in the briefing in the district court. It's in the oral argument in the district court. It's in the briefing and oral argument in the court of appeals. All those details are on footnote five of our reply brief. The good for the goose, good for the gander concern. Here's what's going to happen if California's laws upheld. A pro-life state is going to find out that there isn't no difference anymore between people who perform abortions and those who counsel about it, who talk about it. If merely talking about abortion is sufficient to require you to give pro-life in duration, we have taken a big step in a wrong direction of politicizing the practice of medicine. If everyone who recommends abortion can have to give these kind of... I mean, that's... since it was my... It's... It's... You have to be a professional group giving advice in a professional way. It's not... I don't think the goose and gander has to do with everybody in the world. And there are things called family planning, clinics, et cetera. Certainly, Your Honor. And so taking it on a narrow and then a broader construction. The narrow construction, as I understood your hypothetical, as a family planning center that didn't actually perform abortions, but did all the other services, I believe it would be unconstitutional in a pro-life state to require that center to give a pro-life kind of disclaimer that was required in Pennsylvania, because they're not doing anything that relates to the practice of medicine in that context. But taking the broader construction, if we're not going to gerrymander this and say, all doctors who treat pregnant women have to give all the options. If that's the case, doctors who advise to deliver and doctors who advise to get abortions are going to be swept into this requirement. And the political ramifications of that are enormous. We should not politicize the practice of medicine in that way. And the line that Casey drew between performing abortions versus advising about abortions is a constitutionally appropriate line. Thank you, Your Honor. Rest

. Thank you, Council. The case is submitted