Associate Justice Elena Kagan, considered to be among the more liberal justices, raised a similar point when she expressed concern that the law had been “gerrymandered” to address some centers, but not others.
“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 gerrymandered,” Justice Kagan said during arguments. “Because if it has been gerrymandered, 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 whose speech we don’t much like.”
Meanwhile, Associate Justice Sonia Sotomayor appeared to give credence to the California law, expressing doubt that the plaintiff’s activities were ethical and legitimate. She noted that she visited a website of one of the plaintiffs – Fallbrook Pregnancy Resource Center – and found photos of people in nurse uniforms standing next to an ultrasound machine as well as text that stated that staff 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 if they’re not a medical provider, they don’t have to follow,” Justice Sotomayor said. “If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”