A majority of the U.S. Supreme Court appeared receptive today (March 20) to arguments by pro-life pregnancy centers that a state law requiring them essentially to publicize abortion services violates their free speech.
The justices’ decision in the case — expected before they end their term this summer — will likely have major repercussions for hundreds of pregnancy care centers in numerous states. The California law at issue is part of an ongoing effort by abortion-rights advocates and their lawmaking allies in cities and states to limit the impact of pro-life centers that provide free services to pregnant women.
Today’s oral arguments gave the pregnancy centers’ advocates reason to hope the high court will rule in their favor. Justices from both the ideological middle and left of the court expressed strong reservations about the law.
California’s 2015 Reproductive FACT Act requires licensed pregnancy centers to post a notice for or otherwise inform clients in writing of the state’s free or low-cost access to abortion and other family planning services. The law also mandates unlicensed centers provide a notice they are not licensed medically and do not have a licensed medical professional.
With the oral arguments, “we see once again the outrageous demands being made in this case, ones that strike at the very heart of the freedom this nation has always sought to uphold and protect,” said Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
“Time and again, we see the abortion industry maneuvering to silence any and all dissent that would threaten their industry of death,” said Moore in written comments. “I’m hopeful the Supreme Court will rule against these efforts that aim to steamroll groups serving vulnerable women.”
Pro-life advocates and organizations have established thousands of pregnancy centers to assist women in need since the Supreme Court legalized abortion in 1973. Many provide free ultrasound scans that demonstrate the humanity of the unborn child and often help women decide to give birth. The centers’ services also include medical consultations, baby clothing and diapers, job training, mentoring programs, and prenatal and parenting classes.
If the California law survives the legal challenge, pro-life centers would face fines of as much as $1,000 a day for defiance of its requirements. Other states with pro-choice legislatures and governors could follow California’s example. Illinois and Hawaii already have enacted similar laws.
The Reproductive FACT Act requires licensed pregnancy centers to post a notice for clients that says, “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
In the oral arguments, some justices appeared uncomfortable as they received answers from lawyers about the law’s effect. Associate Justice Anthony Kennedy — often the court’s swing vote — said at one point the signage requirement seemed like an “undue burden” that would invalidate the law. Associate Justice Sonia Sotomayor, a liberal, indicated near the end of the arguments the measure appeared burdensome and wrong.
Michael Farris — representing the pregnancy centers — told the court California “took aim” at pro-life enters with a law directed at “disfavored” speech by “disfavored” speakers. As a result, “only non-profit, pro-life” centers are affected, said Farris, president of Alliance Defending Freedom.
Joshua Klein, California’s deputy solicitor general, told the justices the state approved the law to make poor women aware of the public services available to them when they are pregnant.
Mark Rienzi, president of Becket who attended the arguments, said that afterward many justices “seemed to understand that the state looks like it has targeted pro-life speakers for special speech restrictions.”
The National Institute of Family and Life Advocates (NIFLA) — a nationwide network of more than 1,400 pregnancy care centers — and two pro-life centers challenged the law. More than 100 of the pregnancy centers NIFLA provides legal counsel, education and training to are in California.
The ERLC joined the National Association of Evangelicals, Concerned Women for America, National Legal Foundation and Samaritan’s Purse in a friend-of-the-court brief on behalf of the pregnancy centers. The brief contended the California law unconstitutionally discriminates on the basis of viewpoint.
In October 2016, the U.S. Ninth Circuit Court of Appeals in San Francisco — like a federal judge before it — refused to grant an injunction blocking the California law. In its opinion, the Ninth Circuit panel said the law does not violate the First Amendment’s protections for free speech or free exercise of religion. The law “does not discriminate based on viewpoint,” the three-judge panel said.
Local governments also have placed speech requirements on pro-life pregnancy centers, mandating they post signs, for instance, that say they do not provide abortions or contraceptives or make referrals for the services. Courts have invalidated all or most of such mandates in Austin, Texas; Baltimore; Montgomery County, Md.; and New York City.
The case is NIFLA v. Becerra.
— by Tom Strode | BP