NRL News

Justices seem skeptical of California law impinging on free speech rights of pregnancy help centers

by | Mar 20, 2018

By Dave Andrusko

The Supreme Court today heard oral arguments in National Institute of Family and Life Advocates v. Becerra, a much-anticipated free speech case in which pro-life pregnancy help centers say the state of California (as one attorney put it) is attempting to conscript them into “acting as a ventriloquist’s dummy for a government message”—abortion.

In their accounts, two major newspapers—the New York Times and the Los Angeles Times—along with NPR, stressed that the so-called Reproductive FACT Act had been met with skepticism across the High Court’s ideological spectrum

The New York Times’ Adam Liptak began his story, “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. Justices across the ideological spectrum said they suspected that the law had singled out centers run by opponents of abortion. Justice Elena Kagan said she feared that the law had been ‘gerrymandered’ to address only some providers, something she said would be a serious First Amendment problem.”

That latter point—that pregnancy help centers were targeted—is hugely important. There is no similar requirement (in reverse) for abortion clinics.

Of course, that proves nothing, other than that the justices are traditionally wary of compelling speech, but it is still encouraging.

As NRL News Today has written on many occasions, the 2015 law has particularly onerous provision. Locally funded pro-life medical clinics are compelled to advertise taxpayer-funded abortions. Specifically

The notice, which the law specifies must either be posted as a public notice in “22-point type,” “distributed to all clients in no less than 14-point font” or distributed digitally “at the time of check-in or arrival,” applies to all pregnancy help medical clinics licensed by the state.

“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].”

And as Jay Hobbs of Pregnancy Help News explains

Pregnancy help centers that do not offer medical services will be required to post the following signage in two “clear and conspicuous” places—“in the entrance of the facility and at least one additional area where clients wait to receive services,” as well as in “any print and digital advertising materials including Internet Web sites”.

The font required is to be “in no less than 48-point type” and will read as follows:

“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 services.”

The absurdity of the law, particularly its reach, was captured in a back and forth between Justice Anthony Kennedy and a lawyer for the state (presumably Joshua A. Klein). NPR’s Nina Totenberg, pro-abortion to the core, nonetheless noted that Kennedy

cited a hypothetical example of a billboard in Los Angeles with the words ‘Choose Life.’ He asked the lawyer for the state if it was paid for by an unlicensed facility if it would have to say so in large font and in multiple languages.

The lawyer for the state said that it would. For Kennedy, that seemed to be too much.

David Savage of the Los Angeles Times wrote that Justice Samuel Alito “asked how clinics in Los Angeles County could be expected to provide the required state disclosures in all the languages that were spoken. Joshua Klein, a deputy solicitor general, said the clinics are required to provide the notices in 13 languages.”

The basic argument for the Reproductive FACT Act is that the pregnancy help centers were misleading women for which there is precious little evidence. As for those who were not licensed medical centers, they had an obligation to all-but-scream to pregnant women that they weren’t licensed medical facilities.

Kristen Waggoner, who represented the pregnancy-help centers, said there was no need for unlicensed medical centers to disclose their status. “They’re not doing anything that requires a license,” she said, “so why would they need to say that?”

The same kinds of arguments have been made in cases involving similar laws which by and large have been stricken. As Liptak observed, “Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options.”

Precisely! In 2017 Riverside Superior Court Justice Gloria C. Trask granted a temporary injunction for the Scharpen Foundation’s mobile ultrasound unit on that grounds the law violated California’s “freedom of mind” guarantee as laid out in the state’s 1849 Declaration of Rights.

“The State can deliver its message without infringing upon anyone’s liberty,” Trask wrote. “It may purchase television advertisements as it does to encourage Californians to sign up for Covered California or to conserve water. It may purchase billboard space and post its message directly in front of Scharpen Foundation’s clinic.” (My emphasis.)

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