WASHINGTON — The U.S. Supreme Court has ruled in a 5-4 decision that a California law requiring pro-life pregnancy centers 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 “likely violates the First Amendment.”
The court ruled that the State of California has ample avenues to disseminate its desired message without having to force pro-life pregnancy centers to essentially advertise for abortion services against their convictions.
“California could inform low-income women about its services ‘without burdening a speaker with unwanted speech,'” wrote Justice Clarence Thomas on behalf of the majority. “Most obviously, it could inform the women itself with a public information campaign. California could even post the information on public property near crisis pregnancy centers.”
“California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evidence to that effect. And regardless, a ‘tepid response’ does not prove that an advertising campaign is not a sufficient alternative,” he said. “… [I]ndividuals might not have enrolled in California’s services because they do not want them, or because California spent insufficient resources on the advertising campaign.”
Thomas said that whatever the case may be, “California cannot co-opt the licensed facilities to deliver its message for it. ‘[T]he First Amendment does not permit the State to sacrifice speech for efficiency.'”
A separate concurring opinion written by Justice Anthony Kennedy condemned California’s Reproductive FACT Act requirements even more sternly.
“It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression,” he wrote.
“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these,” Kennedy declared.
“… Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
The court sent the case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, back to the Ninth Circuit Court of Appeals for further proceedings consistent with the Supreme Court’s conclusion.
Read the ruling in full here. In addition to Thomas and Kennedy, Roberts, Alito and Gorsuch sided with the pregnancy centers. Justices Breyer, Ginsburg, Sotomayor and Kagan comprised the dissent.
As previously reported, California Gov. Jerry Brown signed the Reproductive FACT Act into law in Oct. 2015, a measure that was 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 read.
The legislation therefore required that licensed pregnancy care centers provide the following message to clients in print, whether posted on the wall or distributed in a flyer: “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 could be fined $500 for the first offense and $1,000 for each infringement afterward.
Unlicensed pregnancy care centers were similarly required to post a notice advising that they have not been licensed by the State to provide medical services. As stated above, there are both licensed and unlicensed pro-life pregnancy centers in California, depending on what services are offered.
According to reports, NARAL Pro-Choice California was a major sponsor of the law, as it contended 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 licensed 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 were 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.
“No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion,” ADF President Michael Farris, who argued on behalf of NIFLA before the Supreme Court earlier this year, said in a statement on Tuesday. “In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs.”