SACRAMENTO, Calif. — When women seeking help with crisis pregnancies enter the Sacramento Life Center (SLC) near the California State Capitol, the first thing they often see is the notice posted in the waiting room.
“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,” reads one part of the notice, which includes a contact telephone number for county social services.
But clients also learn that the state has forced the licensed medical center to post the disclosure about abortion and contraceptive services and that SLC “considers this law to be a violation of the U.S. Constitution and contrary to its mission.”
“SLC complies under duress, and the law is currently under litigation,” reads a sign posted next to the first one mandated by the state.
The starkly different messages that greet women visiting the pro-life pregnancy center provide a clear reminder of the stakes involved, now that the U.S. Supreme Court has agreed to hear an appeal to the controversial law that mandated the disclosure — the California Reproductive FACT Act.
“Before we can even talk to a woman who visits us,” Marie Leatherby, SLC’s executive director, told the Register, prospective clients have already read the notice about free abortion services posted in the waiting room. And some will leave before her staff can discuss the medical and counseling services the center and its two mobile clinics provide to about 2,000 women annually.
But if her nonprofit fails to post the notice regarding free and low-cost abortion services, it would face penalties totaling $1,000 per day and quickly go out of business.
With no acceptable choice at hand, the SLC joined a legal challenge to the law filed by the National Institute of Family and Life Advocates, an organization that includes 110 licensed and unlicensed pro-life pregnancy centers in the Golden State. The unlicensed centers are not required to disclose information about abortion services, but they must inform visitors that they are not licensed.
First Amendment Issue
At issue in National Institute of Family and Life Advocates v. Becerra is whether the disclosures required by the law “violate the protections set forth in the Free-Speech Clause of the First Amendment, applicable to the states through the 14th Amendment.”
Elissa Graves, one of several lawyers with Alliance Defending Freedom, the Christian legal group that represents the clinics, summarized her clients’ legal argument in simple, blunt terms: “Why should the abortion industry be able to force others — even pro-life centers — to provide free abortion advertising?”
The legislation's supporters counter that the law is nothing more than a professional conduct disclosure requirement, designed to correct inaccurate information provided by the center to clients.
In the run-up to the law’s passage in 2015, the state Legislature accused the centers of “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The 9th Circuit Court of Appeals ruled in favor of the state. But other appellate courts have struck down similar regulations, and lawyers who represent the centers believe that the justices will find that the law violates free-speech rights.
Denise Harle, another lawyer with the Alliance Defending Freedom who is working on the case, pointed to two recent Supreme Court decisions that strengthen her clients’ legal argument.
In a 2015 case, Reed v. Town of Gilbert, the justices unanimously ruled against a town law that placed tougher limits on the posting and size of religious signs than on other types of signs. The high court also determined that such cases were subject to “strict scrutiny,” the highest possible standard for evaluating the constitutionality of a contested law.
With the Reed case in mind, Harle predicts that the justices will find that the California statute unlawfully discriminates against a specific viewpoint. For if the intent is simply to provide factual information, she said, why compel pro-life clinics to post information about abortion services and not impose an equivalent rule that directs abortion providers to post information about pro-life clinics?
Harle also expects the justices will find that the California law is subject to “strict scrutiny” — a very high bar indeed. If she is right, the government must show that the law advances a compelling state interest and that the least restrictive means means have been used to advance it.
And this year, the high court acted again to crack down on government-imposed restrictions on speech, even when it was deemed to be offensive.
In June, the justices ruled against the U.S. Patent and Trademark Office, which had turned down an Asian-American rock group called The Slants when it sought to register its name in 2011.
The federal trademark law that bars disparagement “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” wrote Justice Samuel Alito in one part of the majority opinion.
Abortion Lobby’s Dominance
Alexandra Snyder, the executive director of the Life Legal Defense Foundation, a California-based group that provides legal representation to pro-life activists like David Daleiden, hopes the high court will adopt an equally strong line on free-speech rights when it takes up the clinic-disclosure case. And if the law is overturned, it will be a setback for the Democrat-controlled state government, where the abortion lobby plays a dominant role.
Back in 2010, Snyder said, NARAL Pro-Choice California Foundation released a report, “Unmasking Fake Clinics: The Truth About Crisis-Pregnancy Centers in California,” which roused abortion-rights supporters in the legislature.
The centers were accused of “misleading and deceptive practices and for not providing women with all their options,” said Snyder, who previously served as a pro-life clinic director and strongly disputed the report’s claims.
“After the disclosure law passed, some clinic managers told me, ‘I will go to jail rather than comply,’” Snyder remembered.
But jail, she told them, “is not an option.”
“If there is an investigation, and the district attorney sends someone to a clinic to see if the sign is posted in a conspicuous location, and they find the law is violated, the first offense garners a $500 fine,” she explained.
“Each subsequent offense comes with a $1,000 fine. No center I am aware of can sustain that type of expense, and the legislature and NARAL know that.”
“The intent,” she charged, “was to force the centers to say something they could not say and then fine them out of existence.”
Brian Fisher, the president of Human Coalition, a national network of women's care clinics, rejected the law’s implication that pro-life clinics had generally adopted practices that misled women dealing with crisis pregnancies.
“We tell every woman when they call us, ‘We won’t give you an abortion, and we won’t give you the pill,’” said Fisher.
“You start to rescue the child by building trust with the mother, not bait and switch.”
In Fisher’s view, California’s contested law was designed to “shame” pro-life clinics and undermine their outreach, even as Planned Parenthood fights off a GOP-led campaign to defund its programs.
“They are forcing pro-life centers that are there to protect life to advertise for other organizations that kill life,” said Fisher.
“It is reprehensible, and it has a debilitating impact on the pregnancy centers and their ability to do their work.”
Back in 2015, as the proposed legislation made its way to the desk of Gov. Jerry Brown, Sacramento Life Center’s Marie Leatherby was among the first clinic directors to sound the alarm.
Leatherby joined other directors to meet with state lawmakers, defend the clinics’ practices and raise questions about the attempt to compel them to post information about abortion services.
“We called it the ‘Bully Bill,’ and we got supporters, doctors and patients to show up at the hearings and speak about the good work of our centers and their truthfulness,” said Leatherby.
But after the law took effect, the Sacramento Life Center quickly became a target of NARAL Pro-Choice California and local news outlets.
In March 2016, after a NARAL investigation found that SLC had not posted the disclosure notice, the abortion-rights group shared this information with The Sacramento Bee and the Sacramento City Attorney’s Office.
“It’s important that we start holding these anti-choice organizations responsible,” Amy Everitt, NARAL’s director, told the Bee.
The damaging publicity prompted one foundation to consider pulling SLC’s funding, and it raised fears that women would be discouraged from visiting the clinic. Finally, Leatherby made the painful decision to post the state-mandated disclosure, though she had hoped to delay any action until the court case was resolved.
Faced with NARAL’s powerful influence in the state Legislature, Leatherby and other clinic directors have launched a professional association that will represent the interests and views of pro-life pregnancy centers in Sacramento.
She is also working with the California Catholic Conference to file a Weldon Amendment challenge with the federal Department of Health and Human Services’ Office of Civil Rights.
The Weldon Amendment, which is included in the annual congressional budget, bars states from discriminating against health care providers that do not offer abortions.
“If the state is found to be in violation of the Weldon Amendment, its federal funding could be jeopardized,” Ned Dolejsi, the executive director of the California Catholic Conference, told the Register.
This important work has helped buoy Leatherby’s spirits as she awaits a ruling in the legal challenge now before the Supreme Court. And if the court overturns the state law, Leatherby’s first order of business will be to remove the disclosure notice that greets all the women who visit her center.
The California law, she said, “violates our conscience and free-speech rights,” and it hurts, not helps, women.
“Women deserve options they aren’t getting at Planned Parenthood.”
Joan Frawley Desmond is a Register senior editor.