The Story: The Supreme Court has agreed to determine if the state of California can force pregnancy centers to promote abortion—and their ruling could have a broader effect on a number of other pro-life laws.
The Background: In October 2015, California enacted the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act. This law requires that licensed medical centers, including pro-life pregnancy centers (aka crisis-pregnancy centers [CPC]/pregnancy help organizations [PHO]) provide a notice to women stating, “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 the telephone number].”
The law also forces non-medical pregnancy centers to add to all advertisements a large disclosure in multiple languages about their non-medical status. Violation of this law results in a fine of $500 for a first offense and then $1,000 for each subsequent offense.
That same month the law was passed, National Institute of Family and Life Advocates (NIFLA), a national legal network of 1,430 pro-life pregnancy centers, filed lawsuits in each of California’s four district courts to stop the law from going into effect (Alliance Defending Freedom [ADF] is representing NIFLA in this case). NIFLA contends that the FACT Act is unconstitutional because it violates both their right to free speech and also free exercise of religion under the First Amendment.
“We cannot allow this intrusion into the religious freedom of our prolife members in California,” said Anne O’Connor, vice president of NIFLA. “If this Act is not successfully challenged then other states, prompted by Planned Parenthood and the abortion industry, will pass similar legislation forcing prolife pregnancy centers to become abortion referral agencies.”
In all four cases the 9th Circuit ruled the state has a right to regulate professional speech and and the required sign was constitutional because it does not encourage abortions, but simply notes the procedure is available. The U.S. Court of Appeals for the 9th Circuit later upheld that decision on appeal.
This past Monday the U.S. Supreme Court agreed to hear the case, but will only consider the issues involving the Free Speech Clause of the First Amendment and not the religious liberty implications.
Why It Matters: The FACT Act is an unconstitutional and unconscionable infringement on free speech. Requiring pro-life pregnancy centers to advertise for abortionists, as ADF has noted, is like the state forcing nutritionists to hang signs promoting fast-food chains in their offices or forcing Alcoholics Anonymous groups to promote local happy hours to their attendees.
Lower federal courts have invalidated parts or all of similar laws like the FACT Act in other areas (Austin, Texas; Montgomery County, Maryland; Baltimore; and New York City), so there is a strong likelihood that the Supreme Court will do the same for the California law. But how the court decides the ruling could have broader implications for other pro-life laws regarding speech.
Several states currently require physicians to tell women seeking medication-induced abortions that the process can be safely and effectively reversed once it has begun—a claim some doctors believe is erroneous. Some states also require that patients be told there is evidence that abortion causes breast cancer, a claim disputed by the American Cancer Society and the National Institutes of Health.
Some abortion-rights activists believe that if the Supreme Court overturns the FACT Act, then these types of pro-life statues that compel “professional” speech of doctors may also be challenged.
“When the court is looking at whether the state can make crisis pregnancy center doctors say certain things, the flip side of that issue is can the state make doctors who provide abortions say certain things,” Andrew Beck, a senior staff attorney with the ACLU’s reproductive freedom project, told Mother Jones.
Even if many current pro-life notification laws are overturned in the process, it will be worth it to prevent compelled speech like that mandated by the FACT Act. While we have other means and methods of warning women about the dangers of abortion, there are few legal safeguards other than the First Amendment to protect the consciences of pro-lifers.