Law & the Courts

SCOTUS’s Choice: Preserve Constitutional Liberties or Detonate the Culture War

(Reuters photo: Molly Riley)
In a pair of critical First Amendment cases, the Court will soon decide whether the state can trample on citizens’ free-speech and conscience rights.

Today, we must pause and consider an important constitutional moment.

Earlier this morning the Supreme Court granted review in a case called National Institute of Family and Life Advocates v. Xavier Becerra. The issue is simple: Can the state of California require a pro-life crisis-pregnancy center to advertise the availability of free or reduced-cost abortions?

For those who are unfamiliar with the pro-life movement, the grassroots, front-line effort to defend the unborn often starts with a small house or a storefront, typically in a distressed neighborhood — the same kind of neighborhood where abortion clinics so often cluster. In that house or storefront you’ll find a small staff of mainly volunteers, people who help administer pregnancy tests, doctors who can perform ultrasounds, and counselors who work with frightened and panicked women to help explain the alternatives to abortion.

The goal is to help mother and baby, to hold her hand and walk with her through the pregnancy, connecting her with the right resources and institutions if she chooses to keep and raise her child or connecting her with the right agencies if she chooses to give it up for adoption. Though not all crisis-pregnancy-center staff and volunteers are people of faith, most are deeply religious Catholics and Evangelicals. Defending the unborn and supporting young mothers is a core part of their life’s work.

Given the sexual revolutionaries’ near-sacramental support for abortion, it should come as no surprise that pro-abortion radicals despise crisis-pregnancy centers. They accuse them of misleading women and stigmatizing abortion (what’s wrong with stigmatizing abortion?) and have launched a legislative assault designed to steer pregnant moms away from their doors.

In California, this took the form of a law called the Reproductive FACT Act, and its target was crystal clear. Declaring it unfortunate that California hosts more than 200 crisis-pregnancy centers, the state claims that these centers “often confuse [and] misinform” women. Thus, it requires centers to prominently post or distribute a notice that reads as follows:

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 [phone number].

In other words, it’s requiring pro-life citizens to advertise the existence of free abortions, and point women toward them.

There’s a term for this: compelled speech. Historically, it’s been considered among the worst forms of state censorship. It’s one thing for the state to tell you that you can’t speak. It’s another thing entirely for the state to commandeer your voice and compel you to advance your opponents’ cause.

There’s a term for this: compelled speech. Historically, it’s been considered among the worst forms of state censorship.

The Supreme Court is now considering two critical compelled-speech cases. It will hear the first, Masterpiece Cakeshop v. Colorado Civil Rights Commission, on December 5. In Masterpiece, the state of Colorado is attempting to compel a baker to create a custom cake celebrating a same-sex wedding, which his religion holds to be immoral. Here, the state of California is demanding that pro-life Californians advertise abortion services. Both cases represent direct state assaults on the rights of conscience and free will of American citizens.

By this point we know that there is no way to declare a truce in the culture wars. Our value systems are too different for agreement, and they’re often even too different for compromise. But when the culture wars escalate to the point where a majority has the power to implement policy (like free or low-cost abortions) and the power to suppress dissent, then the American system will begin to crack.

The First Amendment is a core liberty that protects all others and helps preserve civil peace and national unity. It’s the liberty that gives dissenting Americans hope that they will always have another opportunity to persuade, that their ideas will always have a chance.

If, however, you deprive Americans of that hope and try to conscript them into serving the ideas they oppose, you won’t “settle” any debate; you’ll just create a pressure-cooker of fury and resentment. History teaches us that it’s extraordinarily difficult to separate people from their convictions, and societies that don’t protect the rights of conscience and free will are vulnerable to instability and civil unrest.

No, I’m not arguing that pro-life Americans will revolt if they lose this case. The system is not that fragile. But we maintain firewalls for a reason, and if you seek to breach the constitutional firewall against compelled speech, you are asking for a dramatic escalation in the culture wars. You’re begging for more polarization. You’re forsaking the wisdom of the Founders for the short-term satisfaction of authoritarianism. And, over the long run, you will tear this country apart.


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