March 22, 2018

Free Speech on Trial in NIFLA Pro-Life Clinic Case

Can the government force you to speak a message it chooses — a message contrary to your beliefs?

Can the government force you to speak a message it chooses? Can the government force you to speak a message contrary to your beliefs? Can the government force you to advertise for something you oppose? These are the deepest questions surrounding the Supreme Court case NIFLA v. Becerra, which delivered oral arguments on Tuesday.

The case involves a California law that forces pregnancy centers to advertise for the abortion industry. It began in 2015 when California enacted the Reproductive FACT Act, a law requiring pregnancy centers to post disclaimers regarding either their unlicensed status or referring clients to an abortion clinic, including “free or low-cost access” provided by the state. Supporters of the law included the pro-abortion advocates at NARAL Pro-Choice California and the nation’s largest abortion provider, Planned Parenthood. This case, however, does not only apply to the abortion issue. At its root, the case will decide whether the government can force individuals to speak the government’s “favored” messages and if the government can weaponize the law to advance a specific political message through forced advertising.

The law targets both licensed and unlicensed pregnancy centers, which face steep fines for non-compliance. It requires licensed pregnancy centers (those licensed to provide medical services such as ultrasounds and pregnancy tests) to post the following:

> 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 [insert phone number].

Unlicensed pregnancy centers that provide counseling services and material support (such as diapers and baby formula) must post a disclaimer (in print, online and at their physical location) that they are not a licensed medical facility and have no doctor on staff. This notice must appear in 48-point font in up to 12 languages depending on the county.

Either requirement forces pregnancy centers to speak a government-mandated message, which violates the Free Speech clause.

Planned Parenthood, in its amicus brief, argued that the law regulates “professional” and “commercial” speech “to further the State’s interest in ensuring that women seeking reproductive healthcare services have necessary and accurate information about, and access to medically accepted options.”

The state assumes, by conjecture, that women who receive services from pregnancy centers are being misinformed in their options, without objective evidence that this is actually the case. In reality, pregnancy centers discuss all options with their clients: parenting, adoption and abortion, as well as the physical and psychological ramifications of each. In addition, many pregnancy centers offer post-abortive counseling for mothers who choose abortion — because they need it.

By compelling pregnancy centers to advertise for abortion, the law limits choices for women. In reality, “pro-choice” really means pro-(only one) choice. The abortion industry does not seek to give women multiple options, but only one option, abortion. But if you are given only one option, is that even considered a choice?

In addition, Planned Parenthood’s brief notes that professional speech or commercial speech must be regulated by the state for the “welfare of the people.” This prompts the question, “Is the welfare of the people harmed if a woman chooses not to have an abortion?” No. Yet the general welfare of the abortion industry, which financially profits from a women’s “right to choose,” is harmed because it just lost a customer.

Secondly, pregnancy centers aren’t commercial enterprises. They aren’t selling anything. They are non-profits that give counseling, pregnancy tests, diapers and baby wipes away for free. The pro-abortion side argues that even though pregnancy centers offer services pro-bono, they are still participating in a transactional relationship. Yet if anyone should be regulated for commercial speech defined by making a “transaction,” shouldn’t it be the multimillion-dollar abortion industry?

In addition, California’s Reproductive FACT Act regulates content and viewpoint, discriminating against those with whom it disagrees. By doing so, the law silences those with a minority message. This law does not regulate the “professional speech” of the abortion industry. It does not require abortion clinics to display referrals to pregnancy centers. Rather, it specifically targets pro-life pregnancy centers by forcing them to post a disclaimer or refer services that violate their deeply held religious beliefs. This obvious discrimination could be at least part of the law’s downfall.

Ultimately, this case decides the future of free speech. Michael Farris, CEO, president and general counsel for Alliance Defending Freedom who argued the case before the Supreme Court, notes, “This case is a direct assault not only on free speech in the pro-life context but all free speech. If the government can force you to give a message that is contrary to what you believe, there is no limit to that principle. And it’s extraordinarily dangerous.”

The Court is expected to issue a decision by late June. The Federalist’s Nicole Russell writes, “Generally, arguments went as expected and based on the transcript it looks as if the justices may lean toward striking down the California law, if only narrowly.” Let’s hope she’s correct.

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