Supreme Court examines freedom of speech at crisis pregnancy centers

IMAGE: CNS photo/Jonathan Ernst, Reuters

By Carol Zimmermann

arguments before the Supreme Court March 20, justices seemed skeptical about a
California law that requires pro-life pregnancy centers in the state to visibly
display information about abortions to their clients that the centers say
violates their right to free speech.

A few of the justices asked
about the state’s motivation to put the law in place, wondering if it was more
about educating women about state-provided services or if it was meant to
specifically target centers offering pregnancy-related services that clients
might assume are medical facilities.

Justice Elena Kagan said it
would be a problem and a First Amendment issue if the law was “gerrymandered”
to only apply to certain types of service providers.

The law’s requirement that licensed
and unlicensed centers disclose their status in advertisements in large type
and in many languages was seen as an “undue burden” by Justice
Anthony Kennedy, who asked if this would apply — and was told it would — to
an unlicensed facility that wanted to have a “choose life” or
“pro-life” billboard. Justice Sonia Sotomayor agreed that aspect
of the law, in some cases, was “burdensome and wrong.”

The case is the first
abortion-related one to be heard by the court with President Donald Trump’s
appointee, Neil Gorsuch, on the bench. The oral arguments drew people from both
sides outside the court in the freezing rain on the first day of spring. Some
signs, held aloft in between umbrellas, said “Patients want care not
coercion” and “Give free speech life.”

After the hourlong argument,
Thomas Glessner, president of the National Institute of Family and Life
Advocates, the group representing the pregnancy centers, told the crowd outside
that he felt “very optimistic” about the outcome of this case.

California’s attorney general,
Xavier Becerra, tweeted right after the arguments: “Information is power
and all women should know the full range of their #healthcare options! A great
morning with my team at #SCOTUS.”

In a March 20 statement,
Cardinal Timothy M. Dolan of New York said he prayed the court would “do
the right thing and uphold our fundamental right to free speech when it decides
this case.”

“Pro-life pregnancy care
centers embody everything that is right and good in our nation: generosity,
compassion and love that is offered to support both mother and child,”
said Cardinal Dolan, chair of the U.S. Conference of Catholic Bishops’
Committee on Pro-Life Activities.

He noted that some government
officials, instead of “applauding and encouraging the selfless and
life-affirming work of these centers” want to “force them to provide
free advertising for the violent act of abortion in direct violation of their
pro-life convictions and the First Amendment.”

The case, National Institute of
Family and Life Advocates (NIFLA) v. Becerra, is about the constitutionality of
the Reproductive FACT Act, a state law which says pregnancy centers must post notices
in their facilities about available low-cost abortion services and also must
disclose if they have medical personnel on staff. The Christian-base centers
provide counseling and often offer supplies of diapers, formula, clothes and
baby items. Centers that failed to comply with the law have been subject to
fines of $500 for a first offense and $1,000 for subsequent offenses.

Three pregnancy centers
challenged the law in court saying it infringed on their First Amendment rights
to freedom of speech and free exercise of religion.

The law was upheld last October
by a panel of the U.S. Court of Appeals for the 9th Circuit that said the state
could regulate professional speech because of its interest in safeguarding
public health and to ensure that “citizens have access to and adequate
information about constitutionally protected medical services like

Last October, a California
Superior Court judge granted a permanent injunction against the state attorney
general preventing him from enforcing the FACT law.

Justice Stephen Breyer said
during the oral arguments that if abortion providers must tell pregnant women
about other options, then pregnancy centers should similarly tell their clients
about outside services. “In law, as you well know, what is sauce for the
goose is sauce for the gander,” which he explained as coming down to this:
“If a pro-life state can tell a doctor you have to tell people about
adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it
is, you have to tell people about abortion?”

The USCCB and several other
groups including the California Catholic Conference, the Catholic Health
Association of the United States, in friend-of-the-court briefs with the
Supreme Court supporting the pro-life pregnancy centers, stressed that the
government can’t force people to say things they don’t believe.

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