Three pro-life, faith-based nonprofit clinics in California are suing the state’s attorney general, Xavier Becerra, for infringing on their First Amendment rights.
These clinics — LivingWell Medical Clinic, Inc.; Pregnancy Care Center of the North Coast, Inc.; and Confidence Pregnancy Center, Inc. — offer free unplanned-pregnancy-related services to hundreds of women each year. It would be against their deeply held beliefs to advocate abortion. But California law requires them to.
Since 2015, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act has required certain pregnancy clinics to notify their patients that the state offers free and low-cost abortions — even if these clinics do not provide abortion services themselves. By forcing these pregnancy centers to refer their clients to abortionists, California is compelling them to speak in a way that violates their religious beliefs.
The Ninth Circuit Court of Appeals ruled against the clinics, holding that the law was merely a regulation of “professional speech” — which, the court claims, triggers much less scrutiny than do other speech limitations. So the clinics have appealed to the Supreme Court.
It is unclear why California feels this is so important. Finding an abortion clinic on the West Coast is not exactly difficult. And are there really people out there who do not know abortion is an option? According to Planned Parenthood v. Casey (1992), abortions are a constitutional right so long as they are performed before “viability” — or after, if the mother’s health is at risk. Regulations that cause “undue burden,” such as requiring spousal consent, are prohibited.
Legally speaking, though, the question boils down to whether the law regulates only “professional speech,” and if so whether that type of regulation should trigger less court scrutiny. These are issues the Supreme Court has never clearly resolved, though various decisions (including Casey itself) do treat speech by licensed professionals in a unique way.
But this is a law that forces religious organizations to refer their clients for a procedure they find deeply immoral. Like most other content-based speech regulations, it should be subject to “strict scrutiny” — meaning California should have to prove the law is the least restrictive means of furthering a compelling governmental interest. As of 2014, the state of California had more than 500 abortion facilities, so requiring religious clinics to provide abortion referrals can hardly be seen as the least restrictive way to inform pregnant women about their options.
Finding an abortion clinic on the West Coast is not exactly difficult.
As the writ of certiorari to the Supreme Court states, “[This law] does not just compel Petitioners to speak in a way that may stigmatize their own services, but goes so far as to force them expressly to advertise the availability of free abortions, procedures which are contrary to Petitioners’ religious and moral beliefs.” The writ is on solid ground.
In 1977, the Supreme Court decided in Wooley v. Maynard that “The First Amendment protects the right of individuals to hold a point of view different from the majority, and to refuse to foster . . . an idea they find morally objectionable.” This precedent is obviously applicable to the current case.
Alas, we can only wait and see whether the nation’s highest court will elect to defend what was once this nation’s most valued freedom, or if that freedom’s diminishment in the law will continue unabated.
— Sapna Rampersaud is an editorial intern at National Review and studies government, history, and French at Harvard University.