The Abortion Exception

On March 20 the U.S. Supreme Court will hear arguments in National Institute of Family and Life Advocates (NIFLA) vs. Becerra, a case that challenges the constitutionality of a 2015 California law that forces “crisis pregnancy centers”—which supply pregnancy-related services to expectant mothers with the aim of persuading them to keep their babies—to provide information, including contact phone numbers, about how to obtain a free or low-cost abortion funded by the state of California.

Furthermore, “unlicensed” pro-life centers that don’t provide on-site medical services but merely counsel pregnant women against abortion and offer material help such as diapers and baby clothes must post at least two signs on their premises, in 48-point type and in as many as thirteen different languages, stating that they are not medical facilities. The same disclaimer rule applies to all their print and digital advertising, which means that the mandatory huge fonts (48-point type is nearly two-thirds of an inch high) and multiple repetitions will effectively crowd out the pro-life message the centers are trying to convey.

The penalties for noncompliance are steep fines. The law is all too typical of deep-blue, abortion-happy California, where local legislators have over the years mandated twenty-five-foot “buffer zones” designed to squelch pro-life protests outside abortion clinics, and law professors have recommended use of the state’s anti-stalking laws to bring criminal charges against the “sidewalk counselors” who try to dissuade pregnant women from going inside.

NIFLA, a Virginia-based consortium of about 1,400 nonprofit pro-life centers nationwide—nearly all of them supported by local churches and religiously minded individual donors—argues that the 2015 California law, titled the Reproductive FACT Act, violates the First Amendment’s free-speech protections by forcing staffers at the centers to violate their consciences by communicating a message—advertising abortion availability—that they find morally abhorrent. They’re asking the Supreme Court to overturn a 2016 ruling from the San Francisco–based Ninth U.S. Circuit Court of Appeals upholding the law’s constitutionality.

Compelled speech is a First Amendment issue that theoretically ought to be open and shut. As long ago as 1943, in a case involving Jehovah’s Witnesses with religious objections to their children’s being obliged to recite the Pledge of Allegiance at school, the Supreme Court ruled that governments can’t require people to engage in speech with which they disagree.

Furthermore, it’s a longstanding principle of First Amendment law that the government can’t place burdensome restrictions on speech based solely on its content. (A standard of “strict scrutiny” applies to such restrictions, which must be narrowly tailored to serve a “compelling” government interest; a ban on shouting “Fire!” in a crowded theater is the classic example.) Nor can the government engage in “viewpoint discrimination” that favors one ideological position over another. The California law does just that. It contains specific exemptions for clinics that perform or refer for abortions. Planned Parenthood gets a pass, but the Pregnancy Care Center, a NIFLA member and licensed community medical center in Fresno, California, which offers free pregnancy tests and ultrasounds, doesn’t.

Unfortunately, though, liberal legislators and courts, egged on by NARAL Pro-Choice America and other abortion-promoting organizations, have carved out what Catholic University of America law professor Mark L. Rienzi calls an “abortion exception” to the otherwise broad First Amendment protections for speech. Demonizing crisis pregnancy centers and thus rendering them ineffective has been at the top of the abortion-boosting agenda for years. A sixteen-page NARAL report circulating widely among pro-choice law professors, for example, is a blistering blanket indictment, accusing the centers of fraud, misrepresentation, misleading medical information about abortion’s effects, forcing pregnant women to watch anti-abortion slide shows, targeting low-income women and women of color, and, perhaps worst of all, being endorsed by “anti-choice” politicians such as former Minnesota GOP Rep. Michele Bachmann, who had wanted to secure federal funding for abortion-alternatives centers.

The California law’s lead sponsor, Democratic Assemblywoman Autumn Burke, duly picked up the NARAL baton, asserting that the centers “confuse [and] misinform” pregnant women. Likewise the rest of the California Legislature: The text of the law states categorically that the centers employ “intentionally deceptive advertising and counseling practices” designed to “intimidate” pregnant women—even though the record of its legislative history presents no actual evidence that such abuses routinely occur. Thus it has become liberal gospel that, in the words of Priscilla J. Smith, a Yale Law School lecturer who is also one of the attorneys representing California in the NIFLA case, the government’s interest in “compelling the truth in health-care delivery” trumps any First Amendment ban on compelled speech in general.

The Ninth Circuit’s opinion, authored by U.S. Circuit Judge Dorothy W. Nelson, similarly concluded that abortion was such a special issue that the California Legislature was entitled to regulate far more freely the content of abortion-related speech. “[C]ourts have not applied strict scrutiny in abortion-related disclosure cases, even when the regulation is content-based,” she wrote. But as NIFLA argued in its Supreme Court brief, all the cases that Nelson cited had to do with “informed consent” laws regulating the particular advice that physicians, with their superior medical knowledge, could be required—or not—to give their particular patients regarding abortion, not the general anti-abortion advocacy that is the mission of the pro-life centers. Nonetheless, Nelson said that the high standard of strict scrutiny didn’t apply to crisis pregnancy centers; rather, a level of “intermediate scrutiny” applies, giving governments leeway to restrict “professional speech.” As for NIFLA’s claim that the law amounted to viewpoint discrimination, Nelson concluded that it was a “neutral law of general applicability”—even though in reality it applies only to doctors and others who refuse to perform or refer patients for abortions.

In June 2017, in another opinion authored by Nelson, the Ninth Circuit upheld an even more draconian ban on “false or misleading advertising” by crisis pregnancy centers enacted by the city of San Francisco in 2011. The ordinance seemed to be targeted at a center called First Resort, which had a paid Google search link that turned up the center’s website whenever a computer user typed in the word “abortion.” After a Board of Supervisors member pointed out that First Resort’s website didn’t “expressly” state that First Resort did not offer abortions, the board held a hearing and rushed the ordinance through to passage—even though no woman testified at the hearing that she had ever been deceived by First Resort’s ads or counseling techniques.

The First Amendment arguments were obvious, not least of which was First Resort’s claim that the ordinance was so vaguely drafted as to “chill” its ability to exercise its free-speech rights without fear of being fined. Nonetheless, Nelson’s opinion stated that First Resort’s web ads were mere “commercial speech” entitled to practically no First Amendment protection at all—even though the nonprofit First Resort charges nothing for any of its services. (Nelson countered that the free-of-charge services had “commercial value” as a fundraising tool.) First Resort has a petition pending with the Supreme Court to review the decision.

It’s constitutionally appalling that there should be any such thing as an “abortion exception” to the rigorous standards that the Supreme Court has historically applied to government action that stifle First Amendment rights of free speech and expression. Even more appalling is the threat to First Amendment rights in general if governments can decide that speech concerning some issues is less deserving of protection than speech concerning others. The libertarian Cato Institute, whose supporters, ironically, are mostly pro-choice social liberals, might have stated it most forthrightly in the institute’s amicus curiae brief in the NIFLA case: “This case … threatens the basic First Amendment right to be free from compulsory speech.”

Charlotte Allen is a writer living in Washington, D.C.