Pro-Life advocates and pregnancy resource centers (PRCs) are potentially on the cusp of a crucial victory for the free speech rights of the movement. The Supreme Court heard oral arguments for National Institute of Family and Life Advocates (NIFLA) v. Becerra this morning. Many justices, including those of the ideological left, were dubious of the argument presented by the state of California defending a policy designed to compel anti-Life speech from Pro-Life PRCs.
The NIFLA case challenges two provisions of the Orwellian-titled “Reproductive Fact Act,” a California law enacted in 2015. The law requires unlicensed PRCs to disclose a public notice—simultaneously in 13 languages, no less—that they are unlicensed and that no licensed provider supervises the provision of services. Moreover, the law compels licensed PRCs to essentially advertise other medical services, including abortion, on behalf of the California government. Keep in mind nothing precludes California’s ability to conduct a government sponsored billboard campaign to disseminate the same information. These stipulations therefore represent a reprehensible attempt to nullify the free speech rights of Pro-Life organizations in California. A more extensive analysis on the merits of the case can be found here.
Both provisions of the California law appear vulnerable. The longtime swing vote on the court, Justice Anthony Kennedy, appeared to be skeptical of the law. Kennedy pontificated on a hypothetical application of the California law where a billboard advertisement by a PRCs stating “Choose Life” would be subjected to the notice requirement. He then concluded there would be “an undue burden in that instance and that should suffice to invalidate the statute.”
Even Justice Ruth Bader Ginsburg, the iconic and stalwart liberal, questioned the constitutionality of the law by asserting the 13 language requirement “can be very burdensome.”
Justice Elena Kagan, another member from the court’s far left, was suspicious of the provision of the law concerning licensed PRCs. That specific statute, Kagan says, is “gerrymandered” to carve out non-PRCs from the requirements imposed by the Reproductive Fact Act. Conservative Justice Neil Gorsuch was unequivocal in his condemnation of the discriminatory aspect of the law, recognizing the ease and availability of “the state’s other means to provide messages” in advertising.
Texas Right to Life has kept a watchful eye on the NIFLA case because the free speech rights of PRCs, other Pro-Life organizations, and activists alike have often faced egregious affronts. In the Texas Legislature, anti-Life Democrats have filed many bills seeking to limit the free speech rights of PRCs, including HB 3718 from the 85th Session of the Texas Legislature last spring, which would have inhibited PRCs from providing Pro-Life information to pregnant women who came to them for social and medical services.
Such attacks on free speech are not unique to Texas Democrats. Liberal Republicans in Austin have attempted to stifle Pro-Lifers’ ability to freely and effectively advocate for preborn children, pregnant mothers, and vulnerable patients. For example, Charlie Geren, a member of the liberal Texas House leadership, led the charge by authoring House Bill 1533 in 2015. This anti-free speech bill sought to limit the influence of conservative organizations supporting strong conservative candidates in Texas elections. These limitations adversely affect candidates challenging liberal incumbents who routinely become targets for failing to honor their Pro-Life promises to voters. Also, Texas Right to Life has been actively engaged in fighting back the nationwide phenomenon of silencing conservative voices on higher education campuses, a situation that has unfortunately infiltrated Texas institutions and discriminated against Pro-Life college students.
Texas Right to Life knows that the Pro-Life movement cannot successfully transform anti-Life cultural perceptions or build a protective legal framework if our cause cannot freely and effectively articulate our life-affirming message in the state Capitol, on college campuses, or in pregnancy resource centers. The Pro-Life movement has a vested interest in the outcome of NIFLA.
The free speech rights of PRCs must include legal protection for their life-saving and life-changing work to effectively serve pregnant mothers and their preborn children. While Texas Right to Life and others work to undo the devastating judicial ruling of Roe through dynamic legislation and works to remove politicians standing in the way of that victory, the Pro-Life movement requires PRCs to continue to build a Culture of Life. Even though a ruling determining the fate of this ill-advised California law could be narrow in scope, the outcome of NIFLA could affect the entire nationwide Pro-Life movement. The Supreme Court is expected to announce a ruling sometime this summer.