WASHINGTON — Both conservative and liberal justices alike expressed skepticism on Tuesday over a law requiring pro-life pregnancy centers in California to provide information to clients regarding how they can take part in government programs that would allow them to obtain an abortion at little or no cost.
The nine justices heard oral argument this morning in the case of National Institute of Family and Life Advocates (NIFLA) v. Becerra, an appeal that they agreed to accept in November after a federal appeals court upheld the law, known as the Reproductive FACT Act, as constitutional.
According to the Los Angeles Times, Justice Anthony Kennedy said that the law seemed to violate the First Amendment by “mandating speech,” which would force pro-life pregnancy centers to “alter the content of their message.”
Justice Samuel Alito stated that he felt that the requirement targeted only pro-life facilities, remarking, “When you put all this together, you get a very suspicious pattern.”
Justice Elena Kagan expressed similar sentiments, opining that the state had seemingly “gerrymandered” the law to apply only to the pregnancy centers.
“Why should the state free ride on a limited number of clinics to promote its interests?” also asked Justice Neil Gorsuch, according to Politico.
As previously reported, California Gov. Jerry Brown signed the Reproductive FACT Act into law in Oct. 2015, a measure that has been dubbed the “bully bill” by pro-life groups in the state. The bill was authored by Democratic Assemblyman David Chiu, who outlined in the measure that he takes issue with pregnancy centers that don’t provide abortion referrals to women.
“The author contends that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with women’s ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions,” it reads.
The legislation therefore requires that licensed pregnancy care centers provide the following message to clients in print: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion, for eligible women. To determine whether you qualify, contact the county social services office at (telephone number).”
Violators may be fined $500 for the first offense and $1,000 for each infringement afterward.
According to reports, NARAL Pro-Choice California was a major sponsor of the law, as it contends that pregnancy centers “mislead” mothers in trying to dissuade them from killing their unborn children. Abortion “rights” groups characterize pregnancy centers as “fake clinics,” although they provide free ultrasounds and pregnancy tests, and are often staffed with nurses and ultrasound techs, in addition to other volunteers.
“There has been an explosion of these fake health clinics that mislead women in ways that are very troubling and in some cases dangerous to their health,” claimed Nancy Northup, president of the Center for Reproductive Rights, to NPR. “If these fake medical centers had on their front doors, ‘We’re pro-life centers. We’re here to help you decide to continue your pregnancy,’ there’s nothing wrong with that, and that’s fine. But what they’re trying to do instead is lure women in on false pretenses.”
NIFLA disagrees that locations cannot be considered clinics, nor do they believe that the facilities are being deceptive as they do not suggest that they perform abortion procedures. See the ruling out of Maryland surrounding Greater Baltimore Center for Pregnancy Concerns, Inc.
“Pregnancy centers that provide ultrasound services (and other medical services such as STI testing and treatment) under the supervision and direction of a licensed physician are, in fact, medical clinics and should be acknowledged as such,” NIFLA explained in an article on its website in 2013.
“… In addition to the medical director, they also utilize the services of RNs, physicians assistants, registered diagnostic medical sonographers (RDMS) and other licensed health care providers.”
Several faith-based pregnancy centers filed suit to challenge the Reproductive FACT Act following its passage, including the aforementioned National Institute of Family and Life Advocates, the Pregnancy Care Clinic and the Fallbrook Pregnancy Resource Center. However, both the federal district court and the Ninth Circuit Court of Appeals declined to grant an injunction, finding that the requirement served a significant government interest.
“California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion,” wrote Judge Dorothy Nelson, appointed to the bench by then President Jimmy Carter, for the Ninth Circuit last October. Nelson identifies as an adherent to the Baha’i religion.
“And given that many of the choices facing pregnant women are time sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the licensed notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services,” she said.
The centers then appealed to the U.S. Supreme Court, which agreed in November to hear the case. Numerous amicus briefs have been filed in support of the pregnancy centers, including a coalition of 22 states, 41 family policy organizations, 23 legal scholars, and numerous pregnancy centers and pro-life groups nationwide.
Alliance Defending Freedom (ADF) President Michael Farris, the co-founder of the Homeschool Legal Defense Association, argued on behalf of the pregnancy centers on Tuesday, stating that the state was wrongfully seeking to force those with a pro-life mission to “point the way to an abortion.”
“The state of California, at the behest of the abortion industry, is using its power to force pro-life pregnancy centers to be complicit in abortion by telling women how to get one free or at a reduced cost. Even worse, A. B. 775 specifically targets these small non-profit organizations that exist to provide women with life-affirming information they may not otherwise receive,” he said in a statement following oral argument.
“When the government decides what people should and should not say, other freedoms are sure to disappear soon after,” Farris declared. “Even if you are not pro-life, do you want the government setting up its own advertising mandates for nonprofit organizations and then punishing any who disagree? The First Amendment does not allow the government to force you to speak its message. That’s especially true when you are pursuing a religious mission of simply providing resources and support to women free of charge.”
He said that he feels optimistic about how the court will rule considering the response from the majority of the justices. A ruling is expected by the end of June.