The United States Supreme Court heard oral arguments on Tuesday in the National Institute of Family and Life Advocates v. Becerra (NIFLA), a case challenging a California statute that requires pro-life pregnancy resource centers in the state to advertise abortion services.
The justices asked a wide range of questions about the California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (FACT Act), but many of the inquiries were about the statue’s narrow focus on about 70 such clinics in California while providing exemptions to many other entities that offer similar services.
Pregnancy Resource Centers are faith-based, non-profit organizations that provide free services, including pregnancy testing, for women facing unplanned pregnancies. The centers help women find alternatives to abortion, and staff at the centers routinely notify clients that abortion is not provided.
Justice Samuel Alito questioned California Deputy Solicitor General Joshua Klein about the narrow focus of the statute.
“If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics,” Alito said. “Do you think it’s possible to infer intentional discrimination in that situation?”
Klein answered yes, as a “hypothetical,” and Alito went on to say that he also noted the clinics affected by the law are non-profit.
“Why are most for-profits exempted?” Alito asked.
Justice Stephen Breyer asked the attorney for the pregnancy resource centers and CEO of Alliance Defending Freedom (ADF) Michael Farris about the narrow focus of the statute.
“You say, which is certainly a point, that this statute picks out 60 to 70 really pro-life facilities and says you have to post these signs, but nobody else does. Right?”
Farris answered in the affirmative.
“So through a clever series of legislative gerrymandering, the state has ended up with a result that only nonprofit pro-life pregnancy centers are required to post the notice,” Farris said.
Justice Elena Kagan asked Klein if the statue was needed to solve the problem of low-income women having access to all options if facing an unplanned pregnancy or if the statute was necessary because pregnancy resource centers are misleading women.
“If it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” Kagan said. “Would it be fair to say — and I still don’t have a full answer to my question — all right, pro-life, nothing else, an unlicensed facility, it meets all of the criteria, has an ad that says just ‘pro-life’ and puts its name. Does it have to give the notice; yes or no?”
Klein said it would if it meets certain criteria based on whether the clinic has a medical license or does not.
The statute provision for unlicensed clinics requires notification to clients that “this 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 medical services.”
“That seems to me more burdensome and wrong because it’s not tied to an advertisement that is promoting medical services,” Kagan said.
Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the federal government, said that while the First Amendment allows states to require businesses to be transparent, it does not mean they should be required to make disclosures about services they do not provide.
“The First Amendment allows states to require truthful, factual disclosures about one’s own goods or services,” Wall said.
“What the First Amendment does not allow and what California has done is to require pregnancy centers to make disclosures about services they do not provide, and that would violate their most deeply held beliefs without any showing by the state that it truly needs to compel speech rather than speak its own message,” Wall said.
Farris made remarks following the arguments that were posted on the ADF website:
“When the government decides what people should and should not say, other freedoms are sure to disappear soon after,” Farris said. “The government exists to serve its people and not the other way around,” adding:
Even if you are not pro-life, do you want the government setting up its own advertising mandates for nonprofit organizations and then punishing any who disagree? The First Amendment does not allow the government to force you to speak its message. That’s especially true when you are pursuing a religious mission of simply providing resources and support to women free of charge.
California has the heavy burden of justifying its law under the Constitution, or else the law must be struck down to give freedom back to the people. After arguments this morning, I am optimistic the justices will find that the state has not carried this burden and will continue their long tradition of giving speech the highest level of protection it deserves.
Those supporting the pregnancy resource centers gathered on the steps of the Supreme Court despite the wet and frigid weather. Many of them issued statements following the oral arguments.
“Forcing pro-life ministries to promote a message contrary to their viewpoint is a clear violation of the First Amendment,” said Stephanie Taub, senior counsel at First Liberty Institute, which filed a brief for legal scholars in the case. “California should not force healthcare workers to promote life-ending procedures that violate their deeply held beliefs.”
“The Courtroom arguments we saw this morning strongly suggest that a majority of the justices clearly see that California was unconstitutionally targeting pro-life pregnancy centers,” Catherine Glenn Foster, president and CEO of Americans United for Life (AUL), said in a statement.
“They appeared to agree with AUL’s friend of the court brief that what the state did was not appropriate regulation of medicine, but coerced speech in violation of the First Amendment,” Foster said.
“The government cannot force pregnancy centers to advertise and refer for abortion,” Ashley McGuire, a senior fellow at the Catholic Association, said. “That’s the argument put forth today before the Supreme Court in defense of pregnancy centers all across America. We are heartened to see that the justices seemed skeptical of laws that single out pregnancy centers and compel them to promote abortion in direct violation of their very mission and purpose.”
McGuire cited Justice Anthony Kennedy, who said during oral arguments that “mandating speech” to the clinics would “alter the content of their message.”
Jeanne Mancini, president of March for Life, spoke at the rally at the courthouse.
“Today is so critically important because the government shouldn’t have the power to force anyone to speak a message with which it disagrees,” Mancini said. “Pregnancy centers were established specifically to help women – at no charge – to choose life for their children.”
“The government shouldn’t force them or anyone to advertise for something that directly contradicts the very reason they exist,” Mancini said.
Those supporting the California law also held a rally on the courthouse steps, claiming that pregnancy resource centers interfered with a women’s ability to exercise their “reproductive rights.”
A decision on the case is expected in June.
The case before the U.S. Supreme Court is NIFLA v. Becerra, No. 16-1140.
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