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National Institute of Family and Life Advocates, dba NIFLA, et al. v. Xavier Becerra, Attorney General of California, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-55249 · judgment October 14, 2016

Decided · June 26, 2018
At-filing estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Granted limited to the following question: whether the disclosures required by the california reproductive fact act violate the protections set forth in the free speech clause of the first amendment, applicable to the states through the fourteenth amendment. The State of California enacted a law called the "Reproductive FACT Act." The State admits its purpose is targeting "crisis pregnancy centers" based on their viewpoint that "discourag[es]" abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions. The Act also burdens pro-life religious unlicensed centers' speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a "circuit split" with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit. The question presented is: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

Counsel of record

For petitioner
David Andrew Cortman
Alliance Defending Freedom

For respondent
Thomas Dale Bunton
Office of County Counsel

Case

Subject area
First Amendment (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 7 conferences

Amicus briefs
7 cert-stage · 46 merits
(31 supporting pet./neither, 15 respondent)

Orders
Order list, November 13, 2017 · Certiorari granted
Order list, March 5, 2018

Argument & decision

Argued March 20, 2018 — Michael P. Farris · Jeffrey B. Wall · Joshua A. Klein. Listen and read along · the Court’s audio

Decided June 26, 2018. Opinion by Thomas.

Proceedings

  1. Jul 30 2018
    JUDGMENT SSUED.
  2. Jun 26 2018
    Judgment REVERSED and case 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 a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.
  3. Mar 20 2018
    Argued. For petitioners: Michael P. Farris, Washington, D. C. For United States, as amicus curiae, in support of neither party: Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, Washington, D. C. For respondents: Joshua A. Klein, Deputy Solicitor General, San Francisco, Cal.
  4. Mar 16 2018
    Letter of respondents Becerra, Att'y Gen. of CA, et al. filed. (Distributed)
  5. Mar 13 2018
    Reply of petitioners NIFLA, et al. filed. (Distributed)
  6. Mar 05 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  7. Feb 27 2018
    Brief amici curiae of Members of Congress filed. (Distributed)
  8. Feb 27 2018
    Brief amici curiae of American Academy of Pediatrics, et al. filed. (Distributed)
  9. Feb 27 2018
    Brief amici curiae of Planned Parenthood Federation of America and Physicians for Reproductive Health filed. (Distributed)
  10. Feb 27 2018
    Brief amici curiae of Black Women for Wellness, et al. filed. (Distributed)
  11. Feb 27 2018
    Brief amici curiae of California Women's Law Center, et al. filed. (Distributed)
  12. Feb 27 2018
    Brief amici curiae of Equal Rights Advocates, et al. filed. (Distributed)
  13. Feb 27 2018
    Brief amicus curiae of American Medical Association filed. (Distributed)
  14. Feb 27 2018
    Brief amici curiae of the States of New York, et al. filed. (Distributed)
  15. Feb 27 2018
    Brief amici curiae of 51 Reproductive Rights, Civil Rights and Social Justice Organizations filed. (Distributed)
  16. Feb 27 2018
    Brief amici curiae of City and County of San Francisco, et al. filed. (Distributed)
  17. Feb 27 2018
    Brief amici curiae of National League of Cities, et al. filed. (Distributed)
  18. Feb 27 2018
    Brief amici curiae of Social Science Researchers filed.
  19. Feb 26 2018
    Brief amici curiae of Legal Ethicists filed. (Distributed)
  20. Feb 26 2018
    Brief amicus curiae of Public Citizen, Inc. filed. (Distributed)
  21. Feb 23 2018
    Brief amicus curiae of Compassion & Choices filed. (Distributed)
  22. Feb 20 2018
    Brief of respondent Thomas E. Montgomery filed. (Distributed)
  23. Feb 20 2018
    Brief of respondents Becerra, Att'y Gen. of CA, et al. filed. (Distributed)
  24. Feb 20 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  25. Feb 07 2018
    CIRCULATED
  26. Jan 30 2018
    Proposal of amici curiae The Sharpen Foundation, Inc., et al. to lodge copies of record material in related case, and copy of legislative history of the Reproductive FACT Act, 2-15 Cal. Stats. Ch. 700.
  27. Jan 24 2018
    SET FOR ARGUMENT ON Tuesday, March 20, 2018
  28. Jan 16 2018
    Brief amici curiae of U.S. Conference of Catholic Bishops, et al. filed.
  29. Jan 16 2018
    Brief amici curiae of American Association of Pro-Life Obstetricians & Gynecologists, et al. filed.
  30. Jan 16 2018
    Brief amici curiae of State of Texas, et al. filed.
  31. Jan 16 2018
    Brief amicus curiae of United States Supporting Neither Party filed.
  32. Jan 16 2018
    Brief amici curiae of The Scharpen Foundation, Inc., Advocates for Faith & Freedom, and National Pro-Life Alliance filed.
  33. Jan 16 2018
    Brief amicus curiae of First Resort, Inc. filed.
  34. Jan 16 2018
    Brief amici curiae of Operation Outcry, Texas Justice Foundation, and Priests for Life filed.
  35. Jan 16 2018
    Brief amici curiae of C12 Group, CEO Forum, Inc., Christian Employers Alliance, Marketplace Leaders filed.
  36. Jan 16 2018
    Brief amicus curiae of Foundation for Moral Law filed.
  37. Jan 16 2018
    Brief amici curiae of 144 Members of Congress filed.
  38. Jan 16 2018
    Brief amici curiae of Legal Scholars filed.
  39. Jan 16 2018
    Brief amici curiae of Mountain Right to Life, Inc., dba Pregnancy and Family Resource Center, Birth Choice of the Desert and His Nesting Place filed.
  40. Jan 16 2018
    Brief amici curiae of American Center for Law & Justice, et al. filed.
  41. Jan 16 2018
    Brief amici curiae of Freedom X and Crisis Pregnancy Clinic of Southern California filed.
  42. Jan 16 2018
    Brief amicus curiae of Alpha Center, A Pregnancy Help Center Registered Under the Laws of South Dakota filed.
  43. Jan 16 2018
    Brief amici curiae of Conservative Legal Defense and Education Fund, et al. filed.
  44. Jan 16 2018
    Brief amicus curiae of David Boyle filed.
  45. Jan 16 2018
    Brief amicus curiae of Heartbeat International, Inc. filed.
  46. Jan 16 2018
    Brief amici curiae of National Association of Evangelicals, et al. filed.
  47. Jan 15 2018
    Brief amicus curiae of Care Net filed.
  48. Jan 15 2018
    Brief amici curiae of 41 Family Policy Organizations filed.
  49. Jan 15 2018
    Brief amici curiae of Pregnancy Care Centers in Texas filed.
  50. Jan 15 2018
    Brief amicus curiae of Human Coalition filed.
  51. Jan 15 2018
    Brief amicus curiae of Institute for Justice filed.
  52. Jan 12 2018
    Brief amici curiae of Massachusetts Citizens for Life, et al. filed.
  53. Jan 12 2018
    Brief amicus curiae of Justice and Freedom Fund filed.
  54. Jan 12 2018
    Brief amici curiae of Charlotte Lozier Institute, et al. filed.
  55. Jan 12 2018
    Brief amicus curiae of Jews for Religious Liberty filed.
  56. Jan 11 2018
    Brief amici curiae of Twenty-Three Illinois Pregnancy Care Centers filed.
  57. Jan 11 2018
    Brief amici curiae of 13 Women and The Catholic Association Foundation filed.
  58. Jan 08 2018
    Brief of petitioners NIFLA, et al. filed.
  59. Jan 08 2018
    Joint appendix filed. (Statement of costs filed.)
  60. Dec 26 2017
    Brief amicus curiae of Cato Institute filed.
  61. Dec 22 2017
    Joint motion of the parties to file their opening briefs on the merits is granted and the time to file the joint appendix and petitioner's brief on the merits is extended to and including January 8, 2018, and the time to file respondents' brief on the merits is extended to and including February 20, 2018.
  62. Dec 20 2017
    Joint motion of the parties for an extension of time filed.
  63. Nov 29 2017
    Blanket Consent filed by Petitioners, NIFLA, et al..
  64. Nov 13 2017
    Petition GRANTED limited to the following question: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment.
  65. Nov 06 2017
    DISTRIBUTED for Conference of 11/9/2017.
  66. Nov 02 2017
    Letter of November 2, 2017, from counsel for petitioner received. (Distributed)
  67. Nov 02 2017
    Letter of November 2, 2017, from counsel for respondents received. VIDED (Distributed)
  68. Oct 30 2017
    DISTRIBUTED for Conference of 11/3/2017.
  69. Oct 23 2017
    DISTRIBUTED for Conference of 10/27/2017.
  70. Oct 10 2017
    DISTRIBUTED for Conference of 10/13/2017.
  71. Oct 02 2017
    DISTRIBUTED for Conference of 10/6/2017.
  72. Sep 21 2017
    Rescheduled.
  73. Jun 21 2017
    DISTRIBUTED for Conference of September 25, 2017.
  74. Jun 19 2017
    Record Requested.
  75. Jun 19 2017
    Record received from the U.S.C.A. 9th Circuit. The record is electronic and available on PACER.
  76. Jun 06 2017
    DISTRIBUTED for Conference of June 22, 2017.
  77. Jun 05 2017
    Reply of petitioners National Institute of Family and Life Advocates, dba NIFLA, et al. filed.
  78. May 24 2017
    Brief of respondents State Respondents in opposition filed. VIDED.
  79. Apr 20 2017
    Brief amici curiae of Freedom X and Crisis Pregnancy Clinic of Southern California filed.
  80. Apr 20 2017
    Brief amicus curiae of Charlotte Lozier Institute filed.
  81. Apr 20 2017
    Brief amicus curiae of Care Net filed.
  82. Apr 20 2017
    Brief amici curiae of United States Justice Foundation, et al. filed.
  83. Apr 20 2017
    Brief amicus curiae of Cato Institute filed.
  84. Apr 20 2017
    Brief amici curiae of National Association of Evangelicals, Christian Legal Society, et al. filed. VIDED
  85. Apr 17 2017
    Brief amicus curiae of Liberty, Life and Law Foundation filed.
  86. Apr 14 2017
    Order extending time to file response to petition to and including May 24, 2017.
  87. Apr 13 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
  88. Apr 13 2017
    Waiver of right of respondent Morgan Foley to respond filed.
  89. Mar 20 2017
    Petition for a writ of certiorari filed. (Response due April 20, 2017)