Pro-Lifers Applaud Another Supreme Court Free-Speech Win

COMMENTARY: The decision in favor of the California pregnancy centers that refused to distribute state-mandated information on abortion shows the tendency by some secular elites to use seemingly neutral laws against believers.

Protesters call for a vote on the NIFLA v. Becerra case outside of the Supreme Court June 25.The June 26 ruling from the high court prohibits the state of California from forcing pro-life crisis-pregnancy centers to post information about abortion services.
Protesters call for a vote on the NIFLA v. Becerra case outside of the Supreme Court June 25.The June 26 ruling from the high court prohibits the state of California from forcing pro-life crisis-pregnancy centers to post information about abortion services. (photo: Tom Williams/CQ Roll Call via AP Images)

Pro-life advocates everywhere are hailing the U.S. Supreme Court’s 5-4 decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra, which prohibits the state of California from forcing pro-life crisis-pregnancy centers to post information about abortion services.

However, this is not, strictly speaking, a pro-life decision. It will have no effect, for example, on Roe v. Wade or any state abortion regulations. Rather, this decision again illustrates the tendency by some secular elites to use seemingly neutral laws against believers.

Had this been almost any other area of speech, it is likely the high court would not have split 5-4, as it did here. There was no question that the case involved speech compelled by the government; the only question is whether the compulsion survived constitutional scrutiny.

Justice Clarence Thomas wrote the majority opinion for the court, and Justice Stephen Breyer wrote a dissent in which three other justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — joined.

The case involves a rather simple principle: Can the state force you to say things that you do not believe?

In this case, California passed a law regulating licensed and unlicensed clinics that provided pregnancy-related services. For licensed clinics, many of which were Christian, California required them to distribute a pamphlet explaining that a state-owned clinic could provide contraceptive and abortion services, which the pregnancy centers not only do not provide but also oppose.

For unlicensed clinics (generally, those clinics that perform services like ultrasounds but did not have a licensed medical professional on staff), California required that the clinics include — in as many as a dozen languages, in some cases — that the clinic was not licensed in California.

The requirements imposed by the law (called the Reproductive FACT Act) were explicitly aimed at religiously affiliated pregnancy centers and similar clinics.

As Justice Thomas stated, “[c]risis-pregnancy centers — according to a report commissioned by the California State Assembly … are ‘pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling and other services to individuals that visit a center.’”

So, for example, federal clinics were exempt from both requirements.

The high court found both requirements were unconstitutional infringements on free speech in violation of the First Amendment. As to the requirement for licensed clinics, the analysis was straightforward.

Requiring clinics to distribute a government-written document that contravenes the beliefs of the centers is “content-based” speech. Such compelled speech is presumptively unconstitutional unless the state can explain the compelled speech serves a compelling government interest and is narrowly tailored to further that interest.

According to the majority, California failed that test. It could not show that this requirement to force the centers to provide speech with which they disagreed was narrowly tailored — after all, lots of clinics in the state were exempt from the requirement.

The state claimed its purpose was to make sure women were aware that such services were available at other, state-sponsored clinics. But the majority opinion concluded that such “under-inclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”

In short, the high court found that California had not produced sufficient evidence that the requirement it was imposing was in fact narrowly tailored to serve the ends it sought.

The court dealt similarly with the requirement for unlicensed centers. There, the question was a little closer, because all California was doing was requiring unlicensed centers to say they were, in fact, not licensed to perform certain medical procedures.

However, the court again found this was still an unconstitutional restriction on speech that could not meet the high legal burden to survive.

“California has not demonstrated any justification for the unlicensed notice that is more than ‘purely hypothetical,’” the court found, and even if its justification was not hypothetical, the means it proposed were also underinclusive. Under the notice requirement, “a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription contraceptives is excluded — even though the latter is no less likely to make women think it is licensed. This court’s precedents are deeply skeptical of laws that distinguish among different speakers, allowing speech by some but not others.”

At argument, the state’s attorney was forced to concede that the state had no evidence that women entering such unlicensed centers believed they were licensed, and so the claimed reason for the requirement essentially evaporated.

Which brings us to a theme of the case that unites this case with cases like Masterpiece Cakeshop and the earlier cases involving the Obama administration’s contraceptive mandate promulgated by the Department of Health and Human Services.

Justice Anthony Kennedy noted in his concurring opinion here that California described the act as the state’s “forward thinking,” but at the cost of forcing individuals contravene deeply held beliefs. In Masterpiece, the high court quoted portions of the public hearings that suggested “the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.”

The contraceptive mandate grandfathered in the employers of millions from its requirements, which was not narrowly tailored to achieve its goals in a constitutional manner. And even now, many states have on their books “Blaine” amendments prohibiting support for religious schools, which arose from anti-Catholic prejudice.

These cases present the evolution of liberalism that sought to find principles to protect the widest swath of people into a progressivism that seeks to use those principles to punish those it finds outside a narrow mainstream of opinion. In these cases, the Supreme Court blunted that effort, but the underlying conflict remains.

Gerald J. Russello is a lawyer and editor of The University Bookman.

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