Last Friday, the Ninth District Court of Appeals upheld a California law requiring crisis-pregnancy centers to advertise for abortion clinics. The state legislature passed the Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act last year, and the law was subsequently challenged by the National Institute of Family and Life Advocates (NIFLA), along with two California pregnancy-resource centers.
The FACT Act requires all facilities with the primary purpose of “providing family planning or pregnancy-related services” to inform clients about other existing family-planning options by providing the following disclaimer on site:
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].
Licensed facilities are required to provide this information in a “conspicuous place” by means of a sign, printed in at least 22-point font on a sheet measuring at least eight-and-a-half by eleven inches. Centers that don’t have a licensed medical provider — and that therefore do not have the imprimatur of the state of California — must inform clients that the facility “has no licensed medical provider” by means of a 48-point-font disclosure. The unlicensed facilities are also compelled to include this disclaimer in all public advertisements in a font larger than the surrounding text.
According to Stephen Casey — the president of Casey Law Office, who also serves as an allied attorney with the Alliance Defending Freedom (ADF) and as chief counsel for the Texas Center for the Defense of Life — California lawmakers crafted this law specifically to target crisis-pregnancy centers because they dislike these centers and their pro-life speech. “This is as if when you go to McDonald’s they have to advertise that they don’t sell Whoppers, or if Home Depot has to advertise that it doesn’t sell dresses or tennis shoes,” he tells National Review. “And if these centers want to buy an ad on a bus or a billboard, and the disclosure itself is larger than message, that just looks ridiculous,” he added.
It is clear that the FACT Act is, in essence, a government subsidy of abortion clinics by means of coerced advertising.
Economist Adam Smith predicted that a free-market system would incentivize businesses and individuals to request that the government regulate their competition out of the market. Casey says that abortion clinics and pro-abortion activist groups have developed a strategy for instigating advantageous legislative or regulatory changes. In most cases, they start at the municipal level and attempt to persuade small, liberal cities to rule in their favor and against crisis-pregnancy centers. “But they lost that effort,” Casey explains.
Next, these groups began to take similar cases to the state level, given that state governments have the power to regulate medicine, such as in abortion, because it arises out of the legal context of informed consent. According to Casey, this legal principle reveals the biggest flaw in the Ninth Circuit’s recent decision to uphold the FACT Act: It applied informed-consent law to crisis-pregnancy centers, which perform no surgical procedures and which provide all counseling and prenatal supplies for free.
“Pro-life pregnancy centers aren’t cutting anyone, so these regulations shouldn’t apply [to] them under this legal principle of state oversight,” Casey says. “And they don’t even sell their pregnancy tests. Everything they do, they do for free.” In contrast, a place such as the Dollar Store, which actually sells pregnancy tests, should theoretically be more heavily scrutinized for regulation under informed-consent law than pregnancy-resource centers. “Why regulate one but not the other?” Casey queries. “Because of who these centers are and their belief that life is precious.”
Furthermore, a 2013 article, “Driving Out Bad Medicine,” authored by ADF attorney Steven Aden in the University of St. Thomas Journal of Law and Public Policy, concludes that less government regulation of the abortion market would be highly preferable to the current situation for everyone involved. In sum, many economists believe that, if regulation was decreased, the swing on abortion demand would be minimal but would result in the restoration of federalism, at least in this small area.
“Several courts have ruled in favor of pro-life centers in Maryland, Texas, and elsewhere,” says Thomas Glessner, president and founder of NIFLA, the group representing the pregnancy-resource centers in this case. “The Ninth Circuit’s unjust decision stands apart from these other rulings, which rightly acknowledged the liberty of pro-life pregnancy resource centers.”
Glessner tells National Review that his group is currently discussing its options before deciding on the best path forward. If the plaintiffs were to appeal the Ninth Circuit’s decision, it would face an uncertain future in a Supreme Court that is currently in flux, as Justice Antonin Scalia’s seat remains up-for-grabs going into the presidential election.
Though the future of the FACT Act remains similarly uncertain, it is evident that this law is an unjust imposition on the freedom of crisis-pregnancy centers, which provide essential care to the countless women who have chosen not to have an abortion. California should encourage this care, not hinder it out of allegiance to the pro-abortion movement.
— Alexandra DeSanctis is a William F. Buckley Fellow in Political Journalism at the National Review Institute.