On March 20, The Supreme Court of the United States (SCOTUS) is set to hear oral arguments for National Institute of Family and Life Advocates v. Becerra. This is the next SCOTUS case dealing with abortion in a long list spanning from Roe v. Wade and Doe v. Bolton in 1973. Surprisingly, this case has barely been a blip on the radar in most mainstream newsrooms. Although the California law at the center of the lawsuit has everything to do with abortion, the legal challenge and ramifications are more nuanced, which may explain the media silence. However, the case could have far reaching implications for the free speech rights of the Pro-Life movement at large and all Americans.
An Example of Compelled Speech
In October 2015, California Governor Jerry Brown signed into law the insolently named Reproductive “FACT” Act, a blatant and belligerent attack on the free speech rights of the Pro-Life movement. “FACT” is an acronym for “Freedom, Accountability, Comprehensive Care, and Transparency,” a sanctimonious description of a callous law. California is requiring Pro-Life pregnancy centers to advertise for abortion or incur steep penalties. The law mandates Pregnancy Resource Centers (PRCs) provide a notice stating that California offers free or low-cost family abortion services. Licensed PRCs must display the notice in a conspicuous manner, to stand out from other signs, and advertise a phone number for pregnant women to call to receive abortion referrals and information. If the licensed PRC cannot display the notice conspicuously, then they must provide a printed or electronic notice to all clients, regardless of the reason the client may be at the PRC.
Clearly, this law is a demonstrable attempt to stifle the effect of Pro-Life pregnancy centers, displaying the truly intolerant nature of the opposition to the Pro-Life movement. While the self-professed “pro-choice” movement may assert they only want women to be able to “make autonomous decisions,” they solely and aggressively advocate for abortion—and now compel the Pro-Life movement to do the same. Of course, NARAL and other anti-Life groups lobbied for the “FACT act” in response to the success of PRCs in California. Pro-Life organizations helping women learn about and access their life-affirming options have been a leading cause for the decline in California abortions, which have fallen by over 70,000 since 2007. Although the motivation behind the legislation is clear, the legal foundation of the law is not.
The First Amendment of the Bill of Rights enshrines the right to free speech as a fundamental American principle. This is the right for people to articulate their beliefs, ideas, and thoughts without government interference or impediment. This right to free speech has also been interpreted and understood as a protection from compelled speech. The government does not have the authority to compel private citizens or organizations to proselytize on their behalf. In essence, people have the right to speak their mind and the right to avoid spreading someone else’s opinions.
As an enumerated and fundamental constitutional right, free speech is subjected to strict scrutiny when reviewing the merits of the governmental restriction infringing that right. The compelling governmental interest in encroaching upon free speech must be great, and the law must be narrowly tailored to further that compelling state interest. Which governmental restrictions reasonably meet these stringent criteria is the question at the center of the NIFLA v. Becerra case before the SCOTUS.
Informed Consent or Advertisement?
The National Institute of Family and Life Advocates (NIFLA) filed a suit to stop the California “FACT act” from being effectuated, claiming the policy infringes on the free speech rights of PRCs. The notoriously liberal Ninth Circuit Court of Appeals claimed that PRC’s only participate in “professional speech,” which does not deserve the same level of protection under the Constitution. The Ninth Circuit ruled that mandating PRCs to advertise abortion under the “FACT Act” is similar to informed consent laws, and can therefore be highly regulated.
In a desperate attempt to ensure the fake right to abortion supersedes the First Amendment rights of all Americans, many in the anti-Life movement are echoing this claim. Dahlia Lithwick and Mark Joseph Stern from Slate agree, co-writing an article outlying the unintended consequences the Pro-Life movement may experience if the “FACT Act” is struck down by the Supreme Court. They assert that many Pro-Life informed consent laws may crumble along with the “FACT Act” if the Supreme Court proclaims compelled speech unconstitutional. Of course, SCOTUS reversing previous affirmations of state informed consent laws would be a monumental disaster for the Pro-Life movement, because ever since the 1992 SCOTUS ruling in Casey, informed consent laws have empowered millions of women and saved countless lives. Lithwick, Stern, and the Left are trying to hang their hat up by claiming forcing Pro-Life centers to advertise abortion – a procedure not offered or committed at a PRC – is the equivalent of informed consent laws, laws which ensure patients know risks before undergoing medical procedures.
When undergoing an invasive medical procedure, whatever the procedure may be, informed consent is a fundamental part of the process in line with medical standard of practice and universally accepted medical ethics. As the Texas Attorney General Ken Paxton’s Office stated eloquently in an amicus brief to SCOTUS, the dichotomy in knowledge between the physician and patient often necessitates such a conversation for the patient to truly understand the risks and consequences of the procedure. Not obtaining informed consent renders the physician viable to a lawsuit, and a patient vulnerable to unknown adverse side effects. Informing the patient of the risks and consequences of an invasive medical procedure, and how to circumvent those risks and consequences, empowers the patient. For a woman undergoing an abortion informed consent may involve informing her of fetal development, allowing her to see a sonogram, informing her of possible injuries or side effects (both physical and psychological), informing her of other available social and medical options, and more. In Planned Parenthood v. Casey, SCOTUS ruled that states have a particular compelling interest to regulate abortion, specifically. Texas, for instance, uses A Woman’s Right to Know to thoroughly inform a woman of the life altering and life taking procedure she is about to undergo. The process of informed consent is true not only of abortions, but for countless other medical procedures (abortion, though, being unique in that a human life is killed).
Framing the “Fact Act” as informed consent legislation completely misses the mark. The speech in which California is compelling PRCs to participate does not exist to inform women of the risks and consequences they may face in undergoing procedures at that center. The law only requires licensed PRCs to inform women of abortion, provided for free or at low costs by California. The law does not deal with the risks and consequences of any procedure, service, or business likely to occur within the PRC (generally counseling, pregnancy tests, and sonograms). Obviously, as the entire point of PRCs is to provide alternatives to abortion. Furthermore, the information is disseminated before a woman specifies why she even visited the pregnancy center. The provisions required by the “FACT Act” were clearly not enacted for the purpose of informed consent, but for the purpose of advertising for abortion on behalf of the government.
Many legal experts admit that Becerra has arrived at SCOTUS simply because the case deals with abortion. The District Court and the Ninth Circuit only ruled in favor of California because of the ideological goals of the government. Free speech rights can be blatantly stripped away to protect the supposed right to abortion. As the fictional right to an abortion has become the highest right in the liberal movement, laws governing abortion are given sacred exemption from Constitutional protection, no matter how fundamental they may be.
In turn, the free speech rights of Pro-Life individuals and organizations now lay before the Supreme Court. SCOTUS can follow the path carved out by the lower courts and render free speech rights of certain Pro-Lifers obsolete. SCOTUS possibly can reject the notion that “professional speech” can be regulated and compelled in any manner. Certainly, Justice Anthony Kennedy will be at the center of the debate, and his vote will most likely decide the fate of pregnancy centers in California and, subsequently, nationwide. Given Justice Kennedy’s propensity to rule against bullies, his aversion for intolerance, and his protection of the critical rights of free speech, Justice Kennedy should side with NIFLA and the pregnancy centers. If he does not, the First Amendment will have been disregarded for the sake of protecting the new ultimate compelling state interest; abortion.