June 26, 2018
Supreme Court knocks down California law requiring pro-life abortion referrals

By Dustin Siggins

The U.S. Supreme Court has ruled against California’s 2015 law requiring pro-life pregnancy resource centers (PRCs) to inform women about abortion. 

In a 5-4 decision on June 26, America’s highest court said that the First Amendment prevents the state from requiring PRCs to deliver California government’s message about abortion.

“The licensed notice is a content-based regulation. By compelling petitioners to speak a particular message, it ‘alters the content of [their] speech,’ Justice Clarence Thomas wrote in the Court’s decision.  “For example, one of the state sponsored services that the licensed notice requires petitioners to advertise is abortion—the very practice that petitioners are devoted to opposing.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Samuel A. Alito Jr. and Neil M. Gorsuch joined the majority opinion.

In his concurring opinion, Justice Kennedy wrote, “Governments 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.”

The decision in the case National Institute of Family and Life Advocates v. Becerra,

also noted differences between this regulation those addressed in the 1992 Casey v. Planned Parenthood Supreme Court decision which liberalized America’s abortion laws.

In a dissent joined by the Court’s three other liberal Justices – Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – Justice Stephen Breyer referred to the Casey decision when he asked: “If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?”

While only the Court’s conservative and centrist justices ruled in favor of the pro-life centers, the decision was expected after some of the Court’s liberal justices indicated the law’s enforcement components would be inherently unfair.

“The right of free speech protected in the First Amendment to the U.S. Constitution not only includes the right to speak, but also the right to not be compelled by the government to speak a message with which one disagrees and which violates one’s conscience,” Thomas Gessner, president of the National Institute of Family and Life Advocates (NIFLA) which operates PRCs told the American Media Institute.  The California law struck down by the Court, he said, “clearly does so in a biased manner, as its mandates allow pro-life centers only one course of action – promote abortion to your patients or be shut down.”

Supporters of abortion, such as NARAL, condemned the decision in stark terms.

“Today’s Court ruling is unfortunate, but our work to ensure that Californians receive accurate information about their healthcare options will continue,” California Attorney General Xavier Becerra said in a statement.

Abortion opponents disagreed. “The crux of the issue at stake here is whether Americans can be forced by the government to promote a message that conflicts with their beliefs,” NILFA Vice President Anne O’Connor told the American Media Institute. “NIFLA’s pro-life member centers in California would have faced severe fines if they did not comply with AB 775. The state of California has many other avenues to promote abortion at its disposal without targeting pro-life pregnancy centers and forcing them to do so.”

PRCs had sued to stop implementation of the Reproductive FACT Act, claiming that the requirements violated their First Amendment rights. The law required abortion referrals for state-funded abortions to be put in large font in their reception areas, and to include a phone number for information about how to obtain an abortion. Supporters said the law allowed women to receive information about all of their pregnancy options, and cited NARAL investigations which alleged that PRCs were deceiving women about abortion.

The law is similar to several which were declared unconstitutional prior to the FACT Act’s passage, including one in Montgomery County, Maryland. The judge in that case declared there was no evidence of deception by PRCs because NARAL’s investigation of PRCs did not include any written or video evidence, and that all investigators were volunteers or employees of groups that support abortion.

California’s measure was upheld by the Ninth Circuit Court of Appeals. Similar laws in Hawaii and Illinois were enacted after California’s bill. Attorneys in those states will now have to figure out how to apply the decision.

California’s law was crafted by NARAL’s California chapter after the organization conducted an investigation into pro-life centers. NARAL admitted they had “no audio or visual recordings” to prove claims that centers lied to women, due to California’s recording laws. The organization has targeted PRCs nationwide with its investigations and advocacy to lawmakers.


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