What just happened?
In a 5-4 ruling earlier today, the U.S. Supreme Court issued a significant victory both for pro-life pregnancy centers and for the free speech of all Americans.
What was the case about?
In October 2015, California enacted the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act. This law required 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 Ninth Circuit ruled the state has a right to regulate professional speech and the required sign was constitutional because it does not encourage abortions, but simply notes the procedure is available. Other circuits, however, had struck down examples of compelled speech by medical professionals. The U.S. Supreme Court agreed to hear the NIFLA case, but only considered the issues involving the free speech clause of the First Amendment and not the religious liberty implications.
How did the Court rule?
The Court ruled in National Institute of Family and Life Advocates (NIFLA) v. Xavier Becerra, Attorney General of California that the licensed notice likely violates the First Amendment because the requirement compels the pregnancy centers to say that abortions are available from the state public programs. The Supreme Court ruled that by requiring the clinics to inform women how they can obtain state-subsidized abortions the licensed notice plainly “alters the content” of groups who are trying to persuade women to not to have an abortion.
The lower courts had justified the FACT Act because it concluded the notice regulates “professional speech.” But the Supreme Court has never recognized “professional speech” as a separate category of speech subject to different rules, noted the majority opinion, and that speech is not unprotected merely because it’s “uttered by professionals.”
The requirement for non-medical pregnancy centers to post disclosures in their advertisements was also deemed to be “unjustified and unduly burdensome.” During the oral arguments, California admitted that a billboard for a pregnancy center that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. “In this way, the unlicensed notice drowns out the facility’s own message,” Justice Thomas said, writing for the majority.
How did the justices vote in this case?
The vote was 5-4 with Justices Roberts, Kennedy, Thomas, Alito, and Gorsuch voting for and Justices Breyer, Ginsburg, Sotomayor, and Kagan voting against.
How will the ruling affect current pro-life laws?
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 have previously claimed that by overturning the FACT Act 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 because of this ruling, though, 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.
How does this ruling affect free speech?
Writing for the majority, Justice Thomas argued that limiting speech solely because it is spoken by “professionals” could give the states a loophole to limit free speech.
“As defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others. One court of appeals has even applied it to fortune tellers,” Thomas said. “All that is required to make something a ‘profession,’ according to these courts, is that it involves personalized services and requires a professional license from the State.”
“But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement,” Thomas said. “If States could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose ‘invidious discrimination of disfavored subjects.’”
(The justices concede there may be a legitimate “reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles” but that the FACT Act was not close to meeting that standard.)
An even stronger support for free expression comes from the concurring opinion written by Justice Kennedy (which was joined by Justices Roberts, Alito, and Gorsuch):
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. 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.
And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” (Wooley v. Maynard). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. 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.