In today’s NIFLA v. Becerra decision, the U.S. Supreme Court determined that pro-life pregnancy care centers may not be compelled by a state to advertise for abortion. The margin: one vote.
Apparently, abortion providers in California are so hard up for business that they thought they ought be able to drag pro-lifers into helping out with marketing. Four Supreme Court Justices were OK with that. Fortunately, five were not.
Read the full decision at this link. Justice Clarence Thomas wrote for the majority, finding in favor of the National Institute of Family and Life Advocates. He was joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch.
Pregnancy resource centers (PRCs) are in place all over the country. The services they offer vary, depending on the specific resources and mission of the agency. The common thread uniting authentic PRCs is that they do not provide or refer for abortions. NIFLA, the plaintiff in this case, is an umbrella organization representing 1,400 PRCs, 1,100 of which are licensed medical facilities.
Abortion advocates call PRCs “fake clinics.” In California, with a compliant legislature and attorney general, the abortion lobby got a “FACT” law passed: The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. Among FACT’s provisions is one that required PRCs to post notices that California provides free or low-cost abortion services. The notice had to include a phone number for abortion information. Further, PRCs without licensed medical professionals on staff had to post that fact in a manner dictated by the state in a manner acceptable to the pro-abortion attorney general.
FACT didn’t apply to every agency offering assistance and support to low-income pregnant women. It was targeted to affect pro-life pregnancy resource centers. And that made FACT unsustainable under the First Amendment.
Abortion providers have to do their own advertising, without forcing PRCs to help. A state that promotes abortion as a public health service can do so with public service campaigns, without forcing PRCs to help.
It took a Supreme Court decision to make that clear. The scary part is that four Justices – Breyer, Ginsburg, Sotomayor, and Kagan – would have kept the FACT law in place.
Justice Thomas on the notice requirement (footnotes omitted):
The licensed notice [providing abortion information] is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.”…Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.
He also took note of the FACT’s law’s obvious targeting of pro-life entities.
Tellingly, many facilities that provide the exact same services as covered facilities [i.e. pro-life facilities covered by the FACT law]—such as general practice clinics…—are not required to provide the licensed notice. The licensed notice regulates speech as speech.
And then he politely told the state of California to do its own dirty work. (Footnotes omitted)
California could inform low-income women about its services “without burdening a speaker with unwanted speech.”…Most obviously, it could inform the women itself with a public- information campaign….California could even post the information on public property near crisis pregnancy centers. California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evidence to that effect. And regardless, a “tepid response” does not prove that an advertising campaign is not a sufficient alternative….Here, for example, individuals might not have enrolled in California’s services because they do not want them, or because California spent insufficient resources on the advertising campaign. Either way, California cannot co-opt the licensed [pro-life] facilities to deliver its message for it.
As for telling non-medical pro-life PRCs to be transparent about their non-medical status, Justice Thomas found that section of FACT to be in violation of the First Amendment as well, since the only non-medical facilities to which the law applied were pro-life ones. FACT in action would have led to this scenario described in the decision (footnotes and citations omitted):
The application of the unlicensed [non-medical] notice to advertisements demonstrates just how burdensome it is. The notice applies to all “print and digital advertising materials” by an unlicensed covered facility [i.e. nonmedical facilities covered by FACT].These materials must include a government-drafted statement that “[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color…This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility 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.
This First Amendment victory comes four years to the day after McCullen v. Coakley, in which a unanimous Supreme Court found in favor of peaceful pro-life witnesses affected by a buffer zone law. Abortion extremists lost then, too.
