Commentary by Susan Brinkmann, OCDS
The U.S. Supreme Court handed a major victory to pregnancy care centers across the country by declaring that California’s Reproductive FACT Act, which sought to force pregnancy centers into advertising for abortion, was likely in violation of the First Amendment.
The Supreme Court issued a 5-4 victory to the centers in the case NIFLA v. Becerra which attempted to force non-profit pregnancy centers into promoting abortion through government-mandated messaging.
As the Family Research Council reports, this messaging was supposed to be posted in every pro-life center in huge 48-point font – and sometimes in as many as 13 languages – about how women could get a free or low-cost abortion. If they failed to do so, the state threatened them with fines of $500 on the first day, and $1,000 for every day after this that they did not comply with the law. In other words, obey the law or be driven out of business.
Thankfully, the National Institutes of Family and Life Advocates (NIFLA), which is affiliated with about 1,500 pregnancy care centers in America, filed suit, saying the law forces its centers to become “abortion referral agencies.”
The battle raged for three years with the Ninth Circuit Court of Appeals ultimately ruling in favor of California Attorney General Xavier Becerra’s argument that the speech of a pregnancy center was in a lesser category of free speech because it is “professional speech.”
Five out of nine Supreme Court justices disagreed and sent the case back to the Ninth Circuit for reconsideration, saying that the Reproductive FACT Act “likely violates the First Amendment.”
“The Ninth Circuit… concluded that the notice regulates ‘professional speech,’” Justice Clarence Thomas wrote for the majority. “But this Court has never recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals… As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’”
In his concurring opinion, Justice Anthony Kennedy advised all Americans to re-read the First Amendment in order 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.”
He went on to say that viewpoint discrimination is inherent in the design and structure of the FACT Act.
“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.”
Governments, he said, “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.”
Pro-life organizations across the country are celebrating this victory which secures the right to provide for women who choose life over abortion.
“Today’s decision by the Supreme Court is a victory for pro-life free speech and the First Amendment,” said National Right to Life President Carol Tobias. “Pregnancy resource centers provide vital, life-affirming alternatives to mothers facing an unexpected pregnancy. It was outrageous that pro-abortion activists would use the state to force these centers to promote a deadly pro-abortion agenda. Hopefully this will end the harassment of pregnancy resource centers that are trying to help mothers rather than kill their children.”
Lila Rose, president and founder of Live Action, said Planned Parenthood and pro-abortion politicians in California manufactured this law specifically to target pro-life pregnancy centers.
“This unjust law was one of the worst offenses against First Amendment rights we’ve seen and shows the illegal lengths the abortion industry and its political allies are willing to go to suppress the pro-life viewpoint and promote the killing of children in the womb,” she said. “Abortion facilities like Planned Parenthood already use millions of dollars from taxpayers to promote their abortion business. No one should be forced to provide free advertising for the abortion industry – least of all pro-life pregnancy centers who are working to promote life, not destroy it.”
Catherine Glenn Foster, president of Americans United for Life, said the decision is a victory for the free speech rights of pro-life counselors and medical professionals who seek to tell women the truth about abortion, free from state interference.
But it’s also a victory for vulnerable women-in-crisis who come to pregnancy centers in search of compassionate care. The last thing they want to see is a wall full of abortion advertisements.
“Walls can talk, and the Supreme Court should make sure everyone is free to decide what stories their walls will tell,” Foster said. “The Supreme Court did that yesterday, and every American should be grateful.”
The full decision is available here.
