No. 16-1140
IN THE

Supreme Court of the United States
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, D/B/A NIFLA, ET AL.,
Petitioners,
v.
XAVIER BECERRA, ATTORNEY GENERAL, ET AL.,
Respondents.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR PLANNED PARENTHOOD
FEDERATION OF AMERICA AND PHYSICIANS FOR
REPRODUCTIVE HEALTH AS AMICI CURIAE
SUPPORTING RESPONDENTS

KIMBERLY A. PARKER
LESLEY R. FREDIN
E. ROSS COHEN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000

ALAN E. SCHOENFELD
Counsel of Record
CHARLES C. BRIDGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
New York, NY 10007
(212) 937-7518
alan.schoenfeld@wilmerhale.com

 CORPORATE DISCLOSURE STATEMENT
Planned Parenthood Federation of America and
Physicians for Reproductive Health state that they
have no parent corporation and that no publicly held
corporation owns 10 percent or more of their stock.

(i)

 TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .............. i
TABLE OF AUTHORITIES .......................................... iv
STATEMENT OF INTEREST OF AMICI
CURIAE............................................................................... 1
SUMMARY OF ARGUMENT ......................................... 3
ARGUMENT ....................................................................... 4
I.

THE LICENSED NOTICE PROVISION OF THE
FACT ACT MUST BE ANALYZED AS A
PROFESSIONAL SPEECH REGULATION ...................... 4
A. Professional Speech Is A Matter of
Special First Amendment Concern .................... 4
B. The Licensed Notice Provision of the
FACT Act Regulates Professional
Speech ..................................................................... 9

II. PROFESSIONAL SPEECH IS SUBJECT TO
HEIGHTENED SCRUTINY ........................................... 17
III. THE
LICENSED
NOTICE
SURVIVES
HEIGHTENED SCRUTINY ........................................... 21
CONCLUSION ................................................................. 24

(iii)

 iv
TABLE OF AUTHORITIES
CASES
Page(s)
Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983) ....................................................... 16
Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 447 U.S.
557 (1980) ............................................................. 5, 9, 17
District of Columbia v. Heller, 554 U.S. 570
(2008) ............................................................................ 17
Edenfield v. Fane, 507 U.S. 761 (1993) ............................ 5
Evergreen Ass’n v. City of New York, 740 F.3d
233 (2d Cir. 2014) ........................................................ 24
Florida Bar v. Went For It, Inc., 515 U.S. 618
(1995) .............................................................................. 6
Greater Baltimore Center for Pregnancy
Concerns, Inc. v. Mayor of Baltimore,
721 F.3d 264 (4th Cir. 2013)....................................... 13
Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557
(1995) .............................................................................. 6
King v. Governor of New Jersey, 767 F.3d 216
(3d Cir. 2014) ........................................... 8, 9, 13, 18, 19
Legal Services Co. v. Velazquez, 531 U.S. 533
(2001) ........................................................................ 7, 18
Lowe v. SEC, 472 U.S. 181 (1985)............................ 6, 7, 11
NAACP v. Button, 371 U.S. 415 (1963) ................... 17, 18
NIFLA v. Harris, 839 F.3d 823 (9th Cir. 2016) ...... passim

 v
TABLE OF AUTHORITIES—Continued
Page(s)
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447
(1978) ............................................................ 5, 12, 14, 18
Planned Parenthood Arizona, Inc. v.
Brnovich, 172 F. Supp. 3d 1075 (D. Ariz.
2016) ............................................................................. 19
Planned Parenthood Minnesota, North
Dakota, South Dakota v. Rounds, 530 F.3d
724 (8th Cir. 2008)....................................................... 15
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) .............. 6, 7, 14, 15
Riley v. National Federation of the Blind of
North Carolina, Inc., 487 U.S. 781 (1988) ............ 6, 7
Roe v. Wade, 410 U.S. 113 (1973) .................................... 22
Snyder v. Phelps, 562 U.S. 443 (2011) .................... 6, 9, 12
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .... 9, 17, 21
Stuart v. Camnitz, 774 F.3d 238 (4th Cir.
2014) ........................................... 9, 12, 15, 18, 19, 20, 21
Thomas v. Collins, 323 U.S. 516 (1945) .................... 5, 7, 8
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) ..................................................... 19
Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748
(1976) .................................................................... 5, 9, 12
Watson v. Maryland, 218 U.S. 173 (1910) ....................... 5
Wollschlaeger v. Governor of Florida, 814 F.3d
1159 (11th Cir. 2015)..................................................... 8

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Wollschlaeger v. Governor of Florida, 848 F.3d
1293 (11th Cir. 2017)......................................... 8, 15, 19
STATUTORY PROVISIONS
Ariz. Rev. Stat. § 36-2153 (2015) ..................................... 19
Cal. Health & Safety Code
§ 123471 ........................................................................ 10
§ 123472 .............................................................. 3, 10, 12
Tex. Health & Safety Code § 171.012 ............................. 20
LEGISLATIVE MATERIALS
California Assembly Bill No. 775, https://
leginfo.legislature.ca.gov/faces/billTextClie
nt.xhtml?bill_id=201520160AB775 .................... 11, 23
California Assembly Committee on Health,
Analysis of Assembly Bill No. 775 (as
amended Apr. 8, 2015), available at http://
www.leginfo.ca.gov/pub/15-16/bill/asm/ab_0
751-0800/ab_775_cfa_20150411_153629_asm
_comm.html ................................................................. 11
OTHER AUTHORITIES
ABA Model Rule 6.1 ......................................................... 16

 vii
TABLE OF AUTHORITIES—Continued
Page(s)
American College of Obstetricians &
Gynecologists, Committee on Ethics, The
Limits of Conscientious Refusal in
Reproductive Medicine (2007; reaffirmed
2013),
https://www.acog.org/ClinicalGuidance-and-Publications/CommitteeOpinions/Committee-on-Ethics/The-Limitsof-Conscientious-Refusal-in-ReproductiveMedicine ....................................................................... 22
American College of Obstetricians &
Gynecologists, Committee on Health Care
for Underserved Women, Increasing
Access to Abortion (2014; reaffirmed 2017),
https://www.acog.org/Clinical-Guidanceand-Publications/CommitteeOpinions/Committee-on-Health-Care-forUnderserved-Women/Increasing-Accessto-Abortion ............................................................ 22, 23
American College of Obstetricians &
Gynecologists, Facts Are Important:
Medication Abortion “Reversal” Is Not
Supported by Science (Aug. 2017), https://
www.acog.org/-/media/Departments/Govern
ment-Relations-and-Outreach/FactsAreIm
portantMedicationAbortionReversal.pdf ............... 20

 viii
TABLE OF AUTHORITIES—Continued
Page(s)
False and Misleading Health Information
Provided by Federally Funded Pregnancy
Resource Centers, Prepared for Rep.
Henry A. Waxman, U.S. House of
Representatives,
Committee
on
Government Reform – Minority Staff,
Special Investigations Division (July 2006),
https://www.chsourcebook.com/articles/wax
man2.pdf ...................................................................... 23
Halberstam, Daniel, Commercial Speech,
Professional
Speech,
and
the
Constitutional
Status
of
Social
Institutions, 147 U. Pa. L. Rev. 771 (1999) .............. 8
Haupt, Claudia E., Professional Speech,
125 Yale L.J. 1238 (2016) ................................. 8, 15, 21
Melbye, Mads, et al., Induced Abortion and the
Risk of Breast Cancer, 336 N. Eng. J. Med.
81 (1997), available at http://www.nejm.org/
doi/pdf/10.1056/NEJM199701093360201 ................. 20
NARAL Pro-Choice America, The Truth about
Crisis Pregnancy Centers (Jan. 1, 2017),
https://www.prochoiceamerica.org/wp-cont
ent/uploads/2016/12/6.-The-Truth-About-C
risis-Pregnancy-Centers.pdf .................................... 23

 STATEMENT OF INTEREST OF AMICI CURIAE1
Planned Parenthood Federation of America
(PPFA) is the oldest and largest provider of reproductive health care in the United States, delivering medical services through over 600 health centers operated
by 56 affiliates. Its mission is to provide comprehensive reproductive health care services and education, to
provide educational programs relating to reproductive
and sexual health, and to advocate for public policies to
ensure access to health services. PPFA affiliates provide care to approximately 2.5 million women and men
each year. One out of every five women in the United
States has received care from PPFA. In particular,
PPFA is at the forefront of providing high-quality reproductive health care to individuals and communities
facing serious barriers to obtaining such care—
especially individuals with low income, individuals in
rural and other medically underserved areas, and communities of color.
Physicians for Reproductive Health (PRH) is a
doctor-led nonprofit that seeks to assure meaningful
access to comprehensive reproductive health services,
including contraception and abortion, as part of mainstream medical care. Founded in 1992, the organization
currently has over 6,000 members across the country,
including over 3,000 physicians who practice in a range
of fields: obstetrics and gynecology, pediatrics, family
medicine, emergency medicine, cardiology, public
health, neurology, radiology, osteopathic medicine, and
1

No counsel for a party authored this brief in whole or in
part, and no entity or person, other than amici curiae and their
counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties consent to the filing
of this brief.

 2
more. These members, many of whom provide abortion
care, include faculty and department heads at academic
medical centers and top hospitals.
PPFA and PRH (collectively, Amici) are dedicated
to ensuring meaningful access to reproductive health
care services, and believe that it is vitally important for
women to be able to make fully informed decisions
about their reproductive health care. Amici have an
interest in ensuring women, including women with low
income, are knowledgeable about the full range of options and care available to them. Amici’s affiliates,
providers, and members have seen firsthand pregnant
women who have been misled and misinformed, and
thus had their health care delayed, by health centers
that deceptively posed as offering a full range of women’s health services, although, in fact, they did not.
Amici’s affiliates, providers, and members have also
been subject to laws that force physicians, other medical personnel, and health centers to communicate statemandated messages to patients—messages that are often inconsistent with medical science and prevailing
professional standards and that are harmful both to patients and to the medical profession.
As detailed below, several States have passed laws
requiring providers of abortion services to give prospective and current patients scientifically baseless
warnings about the supposed harmful effects abortions
can have on women, or recommend procedures that,
according to the established consensus among medical
professionals, are not in patients’ best interest. See
Part II, infra. Amici thus have been profoundly affected by laws regulating the speech of medical professionals and have an abiding interest in ensuring that those
laws are subject to appropriate judicial scrutiny.

 3
SUMMARY OF ARGUMENT
As licensed health professionals who both provide
care to patients and are often subject to government
speech regulations, Amici here address the proper degree of constitutional scrutiny to be applied to the Reproductive FACT Act’s disclosure requirement for licensed medical facilities and the reasons the requirement survives the applicable heightened scrutiny. See
Cal. Health & Safety Code § 123472(a) (the “Licensed
Notice” provision).
As this Court has long recognized, regulation of
speech by professionals, in a professional context, about
matters of professional concern implicates a conflict between professionals’ substantial First Amendment interest in practicing their profession unencumbered by
speech regulations that either compel them to make, or
restrict them from making, certain statements to clients and patients, and the State’s recognized interest in
the protection of public health and patient welfare
when patients receive care by licensed purveyors of
professional services, who have superior knowledge
and clout with respect to the services they provide.
California’s Licensed Notice provision falls squarely
within this constitutional tradition: It regulates speech
by licensed medical providers, as they provide reproductive health care to patients in licensed facilities, regarding the particular health care the patient is seeking. And it does so to further the State’s recognized
interest in ensuring that women seeking reproductive
health care services have necessary and accurate information about, and access to, medically accepted options.
Regulation of professional speech like the Licensed
Notice is subject to heightened scrutiny under the

 4
First Amendment. Given the acute risk that States
will exercise their police powers to suppress disfavored
speech by professionals, only heightened scrutiny suffices to smoke out impermissible state justifications for
speech regulation and thereby protect professionals’
right to be free from government-compelled speech or
restraints on the free expression of their professional
judgment. While not all regulation of professional
speech will satisfy this heightened scrutiny, the Licensed Notice does: It advances an important governmental interest in a narrow and targeted way, requiring licensed health care providers, which have as their
“primary purpose” the provision of women’s reproductive health care services or counseling about such services, to provide a limited written disclosure entailing
indisputably accurate information to their patients who
seek their advice on matters of reproductive health
about their options, without indicating any preference
for one health care service over another.
ARGUMENT
I.

THE LICENSED NOTICE PROVISION OF THE FACT ACT
MUST BE ANALYZED AS A PROFESSIONAL SPEECH
REGULATION

As the Ninth Circuit correctly observed, the Licensed Notice provision regulates speech that occurs
“within the confines of a professional’s practice,”
NIFLA v. Harris, 839 F.3d 823, 839 (9th Cir. 2016), and
therefore implicates the particular First Amendment
concerns that attach to professional speech.
A. Professional Speech Is A Matter of Special
First Amendment Concern
Professional speech creates a First Amendment dilemma. On the one hand, professional speech “occurs in

 5
an area traditionally subject to government regulation.” Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm. of N.Y., 447 U.S. 557, 562 (1980) (discussing the special First Amendment treatment required in
another such area, commercial speech). The government has a long-settled interest in “the regulation of
certain trades and callings.” Watson v. Maryland, 218
U.S. 173, 176 (1910) (explaining that “the police power
of the states” encompasses professional regulation and
highlighting in particular professions that “closely concern the public health”). This Court has accordingly
recognized that a State may take steps to maintain high
standards of professional conduct, through licensing
and other means, including speech regulations, to support and justify the trust that consumers repose in professionals when relying on their services. See, e.g.,
Edenfield v. Fane, 507 U.S. 761, 770 (1993) (“We have
given consistent recognition to the State’s important
interests in maintaining standards of ethical conduct in
the licensed professions.”); Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 460 (1978) (“[T]he State bears a
special responsibility for maintaining standards among
members of the licensed professions.”); Virginia State
Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 768 (1976) (noting the importance of
Virginia’s “close regulation” of the pharmacist profession as a means of maintaining “high professional
standards”); Thomas v. Collins, 323 U.S. 516, 545
(1945) (Jackson, J., concurring) (identifying the government’s need to protect consumers of professional
services from “the untrustworthy, the incompetent, or
the irresponsible”).
On the other hand, individuals do not forfeit their
First Amendment right to free speech when speaking
in their professional capacity, even when their profes-

 6
sion is subject to the State’s superintendence. Like any
other participant in the marketplace of ideas, professionals have a protected First Amendment interest in
speaking—and in not speaking. See Hurley v. IrishAmerican Gay, Lesbian & Bisexual Grp. of Bos., 515
U.S. 557, 573 (1995) (“[O]ne important manifestation of
the principle of free speech is that one who chooses to
speak may also decide ‘what not to say.’”); Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795
(1988) (“Mandating speech that a speaker would not
otherwise make necessarily alters the content of the
speech.”); see also Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 884 (1992) (plurality opinion) (recognizing that physicians’ “First Amendment rights not
to speak are implicated” when a State regulates speech
by medical professionals).
When professionals, particularly those in stateregulated professions, speak, these interests often come
into conflict with each other. See Lowe v. SEC, 472 U.S.
181, 228 (1985) (White, J., concurring) (describing the
“collision between the power of government to license
and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the
press guaranteed by the First Amendment”). And because “[s]peech by professionals … has many dimensions,” Florida Bar v. Went For It, Inc., 515 U.S. 618,
634 (1995), context matters enormously where regulation of professional speech is concerned—as it often does
in the First Amendment context. See, e.g., Snyder v.
Phelps, 562 U.S. 443, 453-454 (2011) (explaining that,
when evaluating the nature of speech for First Amendment purposes, “it is necessary to evaluate all the circumstances of the speech, including what was said,
where it was said, and how it was said”); Riley, 487 U.S.
at 796 (explaining that courts must look at “the nature of

 7
the speech taken as a whole and the effect of the compelled statement thereon”).
For example, a professional’s public speech (i.e., outside the context of a client or patient relationship) on a
matter of public concern would receive full First
Amendment protection. See Lowe, 472 U.S. at 232
(White, J., concurring) (explaining that regulations of a
professional’s public speech, “[w]here [a] personal nexus
between professional and client does not exist, … becomes regulation of speaking or publishing as such [and
is] subject to the First Amendment’s” full protection).
But not every case is so straightforward. This Court
has repeatedly recognized that speech occurring “as
part of the practice of [a profession], subject to reasonable licensing and regulation by the State,” is a matter
of special First Amendment concern and has distinctive
qualities. Casey, 505 U.S. at 884 (plurality op.); see also, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
542 (2001) (observing that a professional does not become “the government’s speaker” when speaking in the
course of practicing a regulated profession, but rather
retains First Amendment interests of his or her own);
Riley, 487 U.S. at 801 n.13 (explaining that the government’s interest in professional licensure was not
“devoid of all First Amendment implication”); Thomas,
323 U.S. at 531 (“[T]he rights of free speech and a free
press are not confined to any field of human interest.”).
Professional speech is typically characterized by a
knowledge imbalance between professional and client:
most clients seek out professional services because they
want to capitalize on an enshrined profession’s specialized knowledge or expertise. As a result, clients must
place their trust in professionals’ speech, and States
have some power to ensure that trust is appropriately
reposed, including by regulating professionals’ speech.

 8
See Thomas, 323 U.S. at 545 (Jackson, J., concurring);
Halberstam, Commercial Speech, Professional Speech,
and the Constitutional Status of Social Institutions,
147 U. Pa. L. Rev. 771, 844-845 (1999) (discussing this
“imbalance of authority” and knowledge). At the same
time, when professionals speak in the course of practicing their profession, their First Amendment interests
extend to conveying information based on their own professional expertise and an interest in delivering messages consistent with their professional judgment. See
Haupt, Professional Speech, 125 Yale L.J. 1238, 12721273 (2016) (“The professional not only speaks for herself, but also as a member of a learned profession—that
is, the knowledge community. And that community has
an interest of its own. Only if the community remains
autonomous can it develop and refine the specialized
knowledge that is its essence and the source of its social
value.”); see also Part II, infra (citing cases to illustrate
the risks of permitting excessive government interference with accepted professional consensus).
Drawing on this Court’s precedent,2 several courts
of appeals have recognized that government regulation
of “professional speech,” defined as speech relating to
the practice of the profession, presents a special First
Amendment dilemma and warrants special First
Amendment treatment. See Harris, 839 F.3d at 838841; Wollschlaeger v. Governor of Fla., 814 F.3d 1159,
1186 (11th Cir. 2015) (Wollschlaeger I), opinion vacated
by reh’g en banc, 848 F.3d 1293 (11th Cir. 2017) (Wollschlaeger II); King v. Governor of N.J., 767 F.3d 216,
2

The principles justifying special First Amendment treatment for professional speech are “implicit in a number of [this
Court’s] decisions involving government-funded speech, commercial speech, and other areas.” Haupt, 125 Yale L.J. at 1241 & nn.68, 1258-1264 (collecting and discussing cases).

 9
229-233 (3d Cir. 2014), cert. denied, 135 S. Ct. 2048
(2015); Stuart v. Camnitz, 774 F.3d 238, 247-248 (4th
Cir. 2014), cert. denied sub nom. Walker-McGill v. Stuart, 135 S. Ct. 2838 (2015). These decisions commonly
recognize that, although the government has a role to
play in regulating the professions, professionals do not
abandon their free speech rights simply by virtue of
their membership in a regulated occupation. See Stuart, 774 F.3d at 247 (“[S]peech is speech, and it must be
analyzed as such for purposes of the First Amendment.” (quoting King, 767 F.3d at 229)).
Rather, professional speech is worthy of the Constitution’s protection: it is valuable to listeners and, by
extension, to society as a whole because of its function
as a source of valuable information. See Sorrell v. IMS
Health Inc., 564 U.S. 552, 566 (2011) (noting that “information can save lives” in the context of medicine and
public health); Central Hudson, 447 U.S. at 561-562;
Virginia State Bd. of Pharmacy, 425 U.S. at 762
(“Purely factual matter of public interest may claim
[First Amendment] protection.”); cf. Snyder, 562 U.S.
at 453 (explaining that matters of public concern—“‘any
matter of political, social, or other concern to the community’” or “‘of general interest and of value and concern to the public’”—receive heightened First Amendment protection).
B. The Licensed Notice Provision of the FACT
Act Regulates Professional Speech
Applying the common-sense definition drawn from
this Court’s precedents—professional speech is speech
to clients, relating to the practice of the profession—
the Ninth Circuit correctly categorized the Licensed
Notice provision as a professional speech regulation.
Harris, 839 F.3d at 839-840. In attempting to redefine

 10
or restrict professional speech so as to exclude the Licensed Notice, petitioners and their amici lose sight of
the doctrine’s justifications and the interests it serves.
Under the FACT Act, all “licensed covered facilities” must distribute the “Licensed Notice” to their patients. See Cal. Health & Safety Code § 123472(a). To
qualify as a “licensed covered facility” for purposes of
the Licensed Notice provision, a clinic must have a
“primary purpose [of] providing family planning or
pregnancy-related services” and must also satisfy two
or more of the following criteria:
(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant
women.
(2) The facility provides, or offers counseling
about, contraception or contraceptive methods.
(3) The facility offers pregnancy testing or pregnancy diagnosis.
(4) The facility advertises or solicits patrons with
offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling.
(5) The facility offers abortion services.
(6) The facility has staff or volunteers who collect
health information from clients.
Cal. Health & Safety Code § 123471(a). As a result, by
definition, any patient who visits a licensed covered facility has chosen to seek out a facility—endorsed by the
State with a medical license—with a “primary purpose”
of offering a particular set of professional medical services. She has also chosen to seek out a facility that
publicly offers at least some of the specific familyplanning or pregnancy-related procedures and services

 11
enumerated by the FACT Act. See Harris, 839 F.3d at
840 (“Clients go to a [licensed covered facility] precisely
because of the professional services it offers, and …
they reasonably rely upon the clinic for its knowledge
and skill.”).3
Given the constraints of the statute, speech by employees of a licensed covered facility that takes place
within the facility and relates to the professional services
on offer should be considered professional speech. From
the moment a patient walks in the door of a licensed covered facility until the moment she walks out, she has
placed her trust in the medical expertise that the facility
is licensed to provide and has publicly held itself out as
possessing. Speech related to that medical expertise implicates the knowledge imbalance that is at the core of
professional speech. See Lowe, 472 U.S. at 232 (White,
J., concurring) (recognizing the special role played by
those who “take[] the affairs of a client personally in
hand”).
The substance of the Licensed Notice provision
clearly relates to the particular medical services sought
by women who visit these licensed covered facilities.
The Notice provides information about “free or low-cost
access to comprehensive family planning services,”
which is precisely the medical specialty as to which li3

Even if the facility does not offer the complete range of family-planning or pregnancy-related procedures and services, many
facilities use deceptive tactics to attract women seeking those services. See Part III, infra. Indeed, in adopting the FACT Act, the
California Legislature aimed to address the fact that some of the
facilities (which do not offer a full range of medical services) intentionally “pose as full-service women’s health clinics” in an effort to
exploit the trust that laypeople—especially laypeople in acute
need of medical care—place in medical professionals. See Assem.
Comm. on Health, Analysis of Assembly Bill No. 775, at 3.

 12
censed covered facilities, by definition, publicly profess
to have professional expertise. And when a client receives that medical information from a facility defined by
its expertise in that area of medicine, the client reasonably expects that the information can be trusted, given
California’s licensing and regulation of the facility and
the medical profession. Cf. Ohralik, 436 U.S. at 460, 464465 (identifying the State’s “general interest in protecting consumers” and observing that an individual “may
place his trust in a lawyer,” whether or not that trust is
not warranted, on account of the lawyer’s apparent expertise); Virginia State Bd. of Pharmacy, 425 U.S. at
766-769 (discussing the State’s “indisputabl[e]” interest
in maintaining and monitoring high professional standards of competence and trustworthiness via “close regulation”). In short, because the Licensed Notice relates to
the professional services on offer in licensed covered facilities, it is professional speech.
Petitioners and their amici attempt to avoid this
conclusion by proposing restrictive conditions that
would exclude speech like the Licensed Notice from the
reach of professional speech doctrine.
One of petitioners’ amici argues that the Licensed
Notice provision does not regulate professional speech
because the Notice is a “rote advertisement” for public
services and does not require specialized medical
knowledge to deliver or explain. See Cato Br. 3-6 (arguing that the Licensed Notice “can be understood fully by reading a website or brochure” and is therefore
not “unique to the doctor-patient relationship”); cf. Cal.
Health & Safety Code § 123472(a)(1). But context matters. See, e.g., Snyder, 562 U.S. at 453-454 (explaining
that, when evaluating the nature of speech for First
Amendment purposes, “it is necessary to evaluate all
the circumstances of the speech, including what was

 13
said, where it was said, and how it was said”); see also
Stuart, 774 F.3d at 246 (explaining that, when evaluating required disclosures, “[c]ontext matters” (quoting
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v.
Mayor of Balt., 721 F.3d 264, 286 (4th Cir. 2013) (en
banc))). Patients receiving the Licensed Notice have,
by definition, come to a facility presenting itself to the
public as a licensed provider of specialized medical services; they reasonably expect that any information substantively related to those medical services is being delivered within the context of a professional-client relationship.4 Clients are hardly equipped to assess whether substantive medical speech like the Licensed Notice—or any other medical message delivered during
their time at a licensed covered facility—is “unique to
the doctor-patient relationship.” Indeed, it is not clear
how courts could fairly and consistently engage in that
line-drawing exercise. The more workable standard—
and the standard most responsive to the doctrine’s justifications—is to analyze as “professional speech” any

4

For this reason, the Licensed Notice is professional speech
regardless of whether a medical professional, a nonprofessional
staff member, or the facility itself is viewed as the speaker. Because the information relates to the medical services that the facility publicly purports to offer, it is information that clients reasonably view as within the context of the professional-client relationship. See Harris, 839 F.3d at 840 (“All the speech related to the
clinics’ professional services that occurs within the clinics’ walls …
is part of the clinics’ professional practice.”). By contrast, a staff
member’s speech to a client in the waiting room about a clearly
nonmedical or political topic—for example, the merits of a candidate for elected office or political threats to birth control access—
would not be analyzed as professional speech. See King, 767 F.3d
at 235.

 14
speech that, like the Licensed Notice, relates to the
professional services being rendered.5
The same amicus also argues that the Licensed Notice provision does not regulate professional speech because its required disclosure is not “tailored to a particular client’s circumstances.” See Cato Br. 6-9. This
limiting condition likewise reflects too narrow a view of
professional speech. Patients trust and rely upon doctors’ or other professionals’ speech, even when the
speech is not tailored to their particular circumstances.
Patients are therefore subject to a knowledge imbalance with respect to speech relating to professional
medical services, regardless of whether the speech is
individualized. See Ohralik, 436 U.S. at 464-465 (explaining that “harmful solicitation” by attorneys, even
before the establishment of any individualized attorney-client relationship, presents dangers because of a
power and knowledge imbalance that may be especially
strong in “circumstances conducive to uninformed acquiescence”).

5

Petitioners’ amicus raises the specter of a hypothetical California statute that would compel California doctors to inform patients where they can buy the cheapest nearby broccoli—
evidently to illustrate the purported dangers of ignoring amicus’s
preferred “limiting principle centered on expert knowledge.” Cato
Br. 6. As an initial matter, this hypothetical statute compels
speech relating more to commerce than to medical services. More
to the point, amicus’s implication—that the Ninth Circuit’s definition of professional speech will lead to a deluge of silly or onerous
disclosure laws—is unfounded. If a court were to find that California has only a weak interest in having licensed doctors promote
broccoli’s nutritional virtues, then the fact that the statute is a
professional speech regulation would not preclude the court from
striking down the statute under heightened scrutiny. See Part II,
infra.

 15
Casey did not hold to the contrary. In fact, Casey
upheld a provision requiring a “physician or qualified
nonphysician” to inform the patient of the availability
of certain printed materials not tailored to the individual client’s circumstances, but providing general information. 505 U.S. at 881. To the extent that Casey says
anything at all about the First Amendment, it simply
outlined an approach consistent with the conception of
professional speech laid out here. See id. at 884 (recognizing that a workable balance must be found between
a “physician’s First Amendment right[] not to speak”
and the State’s power to impose “reasonable licensing
and regulation” on professionals). Prudently, lower
courts have declined to draw precedential First
Amendment guidance from a single paragraph in Casey
that did not clearly articulate a standard of review.
See, e.g., Harris, 839 F.3d at 837-838; Wollschlaeger II,
848 F.3d at 1311; Stuart, 774 F.3d at 239, 249 (“[T]he
plurality did not hold sweepingly that all regulation of
speech in the medical context merely receives rational
basis review.”); see also Haupt, 125 Yale L.J. at 12591260 & nn.89-91 (observing that scholars, like the
courts of appeals, “have been struggling” to draw explicit guidance from Casey’s “cryptic” paragraph).6
6

The Fifth and Eighth Circuits have misinterpreted Casey’s
holding and conflated Casey’s treatment of the Fourteenth and
First Amendment claims at issue in that case. See Texas Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574576 (5th Cir. 2012); Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 733-735 (8th Cir. 2008). Those courts incorrectly concluded that if a speech regulation passes muster under
Casey’s Fourteenth Amendment undue burden analysis—that is,
if it compels speech that is truthful and not misleading—then any
First Amendment challenge to the regulation necessarily fails.
That analysis misreads Casey, which treated the undue burden
and First Amendment questions as separate inquiries. Simply

 16
Finally, contrary to petitioners’ suggestion, it is irrelevant whether a licensed covered facility charges for
its services. Compare Pet. Br. 21-22, 40-46, with U.S.
Br. 20-24. To be sure, many professional-client relationships are transactional: a professional provides services, and the client pays for them. But many professionals, particularly doctors and lawyers, regularly offer their services pro bono—either on a full-time basis
or as a part-time complement to their ordinary practice.7 The knowledge imbalance between doctor and
patient does not disappear in the pro bono context—nor
does a patient’s expectation of competent medical care.
Professional speech and commercial speech share certain qualities, and there are some shared justifications
for giving those two speech categories special First
Amendment treatment. But it does not follow that professional speech must be related to a commercial transaction (i.e., money exchanged for professional services)
in order to be categorized as professional speech.
Moreover, even in the commercial speech context,
speech may be commercial (and regulated as such) even
if the speech is not a “proposal[] to engage in commercial transactions.” See U.S. Br. 21-22 (quoting Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)).

put, “[t]he fact that a regulation does not impose an undue burden
on a woman under the due process clause does not answer the
question of whether it imposes an impermissible burden on the
physician under the First Amendment.” Stuart, 774 F.3d at 249.
7

In fact, in the legal profession, most lawyers view themselves as bound by an ethical obligation to perform at least some
pro bono work. See ABA Model Rule 6.1 (“Every lawyer has a
professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of
pro bono publico legal services per year.”).

 17
II. PROFESSIONAL SPEECH IS SUBJECT TO HEIGHTENED
SCRUTINY
This Court’s precedent makes clear that heightened scrutiny strikes the proper balance between the
free speech rights of professionals and the power of the
government to regulate the professions.
As a general rule, when a “law on its face burdens
disfavored speech by disfavored speakers, … [i]t follows that heightened judicial scrutiny is warranted.”
Sorrell, 564 U.S. at 564. Professional speech regulations fit comfortably within this framework; they burden “disfavored speech” within the professional-client
relationship (either by proscribing or compelling speech
with “particular content”) by “disfavored speakers,”
namely, professionals. Id. at 565.
The justification for this general rule is particularly
salient in the professional speech context. Professionals have access to a body of specialized knowledge to
which laypersons have little or no exposure. See Part
I.A, supra. Clients seek out professionals precisely because clients lack this knowledge. Heightened scrutiny
is necessary to ensure that government regulations of
professional speech are properly directed to maintaining the integrity of this information flow, not to inhibiting politically-disfavored messages. See Central Hudson, 447 U.S. at 561-562 (describing “the societal interest in the fullest possible dissemination of information”); see also Sorrell, 564 U.S. at 566 (recognizing
the public’s interest in the “free flow” of information,
especially “in the fields of medicine and public health,
where information can save lives”).
Moreover, regardless of the government’s own interest in regulating professions, this Court’s precedents
establish that rational basis review cannot adequately

 18
safeguard the important First Amendment concerns
implicated with professional speech. See NAACP v.
Button, 371 U.S. 415, 438-439 (1963) (“[A] State may
not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”); District of Columbia v. Heller, 554 U.S. 570, 628 n.27 (2008) (“Obviously,
the [rational basis] test could not be used to evaluate
the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the
guarantee against double jeopardy, the right to counsel,
or the right to keep and bear arms.”). This Court has
implicitly acknowledged as much and, on several occasions, has applied heightened scrutiny to regulations
restricting the speech of professionals. See, e.g., Legal
Servs. Corp., 531 U.S. at 542-548 (holding that a federal
law prohibiting attorneys from advising their clients
about challenging welfare laws violated the First
Amendment because it limited “constitutionally protected expression” and “alter[ed] the traditional role of
the attorneys”); Button, 371 U.S. at 438 (“[O]nly a compelling state interest in the regulation of a subject
within the State’s constitutional power to regulate can
justify limiting First Amendment freedoms. Thus it is
no answer … to say that the purpose of [a law] was
merely to ensure high professional standards[.]”); cf.
Ohralik, 436 U.S. at 464 (upholding ban on lawyers’ inperson solicitation in light of the state’s “strong interest” in protecting the public from overreaching and
harmful solicitation).
Indeed, in certain circumstances, intermediate
scrutiny would be too lenient a standard to apply to
professional speech regulations. See King, 767 F.3d at
235. For example, a law that compelled a professional
to utter ideological speech should be subjected to strict,
not intermediate, scrutiny. See Stuart, 774 F.3d at 246

 19
(finding that a mandatory ultrasound statute compelled
ideological speech); see also id. at 255 (“Regulations
which compel ideological speech ‘pose the inherent risk
that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.’” (quoting Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
Consistent with these principles, several lower
courts have expressed “serious doubts that anything
less than intermediate scrutiny would adequately protect the First Amendment interests inherent in professional speech,” explaining that, without heightened
scrutiny, “legislatures could too easily suppress disfavored ideas under the guise of professional regulation.”
See King, 767 F.3d at 236; see also Wollschlaeger II,
848 F.3d at 1311 (“If rationality were the standard, the
government could—based on its disagreement with the
message being conveyed—easily tell architects that
they cannot propose buildings in the style of I.M. Pei,
or general contractors that they cannot suggest the use
of cheaper foreign steel in construction projects, or accountants that they cannot discuss legal tax avoidance
techniques, and so on and so on.”); Stuart, 774 F.3d at
249 (“A heightened intermediate level of scrutiny is
thus consistent with Supreme Court precedent and appropriately recognizes the intersection here of regulation of speech and regulation of the medical profession
in the context of an abortion procedure.”).
The need for heightened scrutiny of professional
speech regulations is evidenced by the spectrum of
state laws enacted to compel reproductive health providers to make certain disclosures. The Arizona legislature, for example, enacted a law in 2015 mandating
that abortion providers tell anyone seeking an abortion

 20
that “it may be possible to reverse the effects of a medication abortion if the woman changes her mind but
that time is of the essence,” Ariz. Rev. Stat. § 362153(2)(h) (2015), in addition to several other required
disclosures. See Planned Parenthood Ariz., Inc. v.
Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016). The law
required that this statement be made even if the patient was not seeking a medication abortion, thus adding confusion and unnecessary noise to the patient’s decision-making process. Moreover, the statement itself
lacks scientific support and is opposed by major medical
organizations like the American College of Obstetricians and Gynecologists.8 Other states have similarly
sought to compel abortion providers to convey statements without any scientific support or medical justification.
See, e.g., Tex. Health & Safety Code
§ 171.012(a)(1)(B)(iii) (requiring abortion providers to
tell patients that abortion increases the risk of developing breast cancer)9; Stuart, 774 F.3d at 254 (discussing
North Carolina law requiring abortion providers to display a sonogram and provide an accurate description of
the fetus, “regardless of the psychological or emotional
well-being of the patient,” even when doing so “could
prove psychologically devastating”).
8

Am. Coll. Obstetricians & Gynecologists, Facts Are Important: Medication Abortion “Reversal” Is Not Supported by Science (Aug. 2017) (“Claims regarding abortion ‘reversal’ treatment
are not based on science and do not meet clinical standards. The
American College of Obstetricians and Gynecologists (ACOG)
ranks its recommendations on the strength of the evidence, and
does not support prescribing progesterone to stop a medical abortion.” (endnote omitted))
9

Melbye et al., Induced Abortion and the Risk of Breast
Cancer, 336 N. Eng. J. Med. 81, 83 (1997) (study of 1.5 million
women “uncover[ing] no overall increased risk of breast cancer
among women with a history of induced abortion”).

 21
Not only do these laws compel abortion providers
to alter the content of their professional messages,
thereby restricting free speech and damaging the “free
flow” of information; but they also affirmatively disrupt
the valuable informational function of professional
speech by mandating misleading and deceptive statements and/or statements that depart from standard
medical practice. Rational review leaves this harmful
government interference essentially unchecked. See,
e.g., Haupt, 125 Yale L.J. at 1288 (explaining the importance of keeping medical providers’ speech “free
from outside interference” and that mandated disclosures may not run afoul of the First Amendment only if
they are “considered a part of medically necessary information flow within the doctor-patient relationship”).
The government may very well have a role to play
in regulating professional speech in some circumstances. But, particularly in the patient-provider context,
“professionals do not leave their speech rights at the
office door.” Stuart, 774 F.3d at 251. Laws aiming to
limit the free speech rights of professionals must face
heightened scrutiny to protect the vital First Amendment concerns presented.
III. THE LICENSED
SCRUTINY

NOTICE

SURVIVES

HEIGHTENED

As this Court has explained, under heightened
scrutiny, a government regulation must (1) “directly
advance[] a substantial governmental interest,” and
(2) be “drawn to achieve that interest.” Sorrell, 564
U.S. at 572.10 The Licensed Notice amply satisfies that
test.
10

Unlike the Vermont statute at issue in Sorrell, the Licensed Notice provision was not enacted with the intention of

 22
The Licensed Notice directly advances a substantial government interest. The State has a substantial
interest in ensuring that women receive accurate information in their pursuit of reproductive health care.
Harris, 839 F.3d at 841; see also Roe v. Wade, 410 U.S.
113, 149-150 (1973). That interest includes ensuring
that women receive accurate information on services
available to them in a timely fashion. See Am. Coll. of
Obstetricians & Gynecologists, Comm. on Ethics, The
Limits of Conscientious Refusal in Reproductive Medicine 5 (2007; reaffirmed 2013) (“Health care providers
must impart accurate and unbiased information so that
patients can make informed decisions about their health
care.”). The earlier in pregnancy that women obtain
the health care services they desire, the better and safer it is for them. Women must make decisions about
their pregnancies in a timely fashion, or the available
safe and legal options will be restricted. Assem. Comm.
on Health, Analysis of Assembly Bill No. 775, at 3
(“[B]ecause pregnancy decisions are time sensitive,
California Women should receive information about
their rights and available services at the sites where
they obtain care.”).
As the legislative history indicates, there is a
demonstrated problem with certain health centers who
purport to provide a full range of services to pregnant
women but instead use deceptive tactics to mislead
women about their options. These centers exist to
promote their own views against abortion and other
legal pregnancy services. See Am. Coll. of Obstetricians & Gynecologists, Comm. on Health Care for Underserved Women, Increasing Access to Abortion 5

demonstrating legislative antipathy toward a particular viewpoint.
See Sorrell, 564 U.S. at 576-577.

 23
(2014; reaffirmed 2017) (noting these centers “operate
to dissuade women from seeking abortion care”). The
American College of Obstetricians and Gynecologists
has stated that centers of this type “often provide inaccurate medical information” to women, which “can divert women from accessing comprehensive and timely
care from appropriately trained and licensed providers.” Id. These deceptive tactics have been well documented in numerous studies from around the country.
See, e.g., False and Misleading Health Information
Provided by Federally Funded Pregnancy Resource
Centers 7, Prepared for Rep. Henry A. Waxman, U.S.
House of Representatives, Committee on Government
Reform – Minority Staff, Special Investigations Division (July 2006) (finding 87% of centers in the study
provided false or misleading information about the effects of abortion on a woman’s health); NARAL ProChoice America, The Truth about Crisis Pregnancy
Centers 2-3 (Jan. 1, 2017) (listing deceptive tactics used
by these centers to mislead women seeking reproductive health care services). Given this background, and
the weight of significant medical authority on its side,
California has a particularly substantial interest in ensuring that women are not misled about the services
available to them in the course of their pregnancy.
Further, the statute is properly drawn to achieve
the State’s substantial interest. The Licensed Notice
conveys only accurate information, in a written format,
about the services available to low-income women seeking reproductive health care services. The Notice is a
clear recitation of information effectively targeted to
the population at the center of the State’s substantial
interest: women seeking information regarding reproductive health care services who are not aware of the
services available to them. Assem. Bill No. 775 § 1(b)

 24
(“[A]t the moment they learn that they are pregnant,
thousands of women remain unaware of the public programs available to provide them with contraception,
health education and counseling, family planning, prenatal care, abortion, or delivery.”). Moreover, the Notice does not require petitioners to express any view
about those services, nor does it require petitioners to
suggest that women should take advantage of those
services, or any particular service over another. See
Harris, 839 F.3d at 842 (distinguishing Evergreen Ass’n
v. City of N.Y., 740 F.3d 233 (2d Cir. 2014), and noting
that “the Licensed Notice does not use the word ‘encourage,’ or other language that suggests the California
Legislature’s preferences regarding prenatal care”). In
fact, the statute leaves petitioners free to express disagreement with the services listed on the Licensed Notice.
For all these reasons, the Ninth Circuit properly
found that the Licensed Notice directly advances—and
is drawn to achieve—a substantial government interest.
CONCLUSION
For the foregoing reasons, the decision below
should be affirmed.

 25
Respectfully submitted.
KIMBERLY A. PARKER
LESLEY R. FREDIN
E. ROSS COHEN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000

FEBRUARY 2018

ALAN E. SCHOENFELD
Counsel of Record
CHARLES C. BRIDGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
New York, NY 10007
(212) 937-7518
alan.schoenfeld@wilmerhale.com