Let me begin with an unequivocal declaration. The Trump administration is a vast improvement over the Obama administration in protecting the right to life, rights of conscience, and religious liberty. This week’s announcement that the Department of Health and Human Services will finally start vigorously enforcing federal conscience laws is a welcome example. The president and vice president’s open embrace of the March for Life is another.
So why are some pro-life and conservative free-speech attorneys quietly dismayed at the Department of Justice? Why are they whispering — quietly, in part because no one wants to anger the Trump administration — “How did this happen?”
The Department of Justice, acting through Solicitor General Noel Francisco, filed an amicus brief in support of neither party in National Institute of Family and Life Advocates (NIFLA) v. Becerra. I wrote about the NIFLA case earlier this week and filed an amicus brief of my own (representing 41 state family-policy councils). The core issue is simple — can California compel pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics? There is also a secondary issue regarding California’s requirement that “unlicensed” pregnancy centers prominently post a notice stating that they’re not licensed by the state and “have no licensed medical provider who provides or directly supervises the provision of services.”
Before I outline the very serious problem with the Trump administration’s brief, let me back up and explain something about constitutional law — especially First Amendment jurisprudence. In any given case there are typically two important questions. There’s who wins and who loses (the outcome that the public focuses on), and then there’s the legal standard the Court applies to reach its decision.
Thus, it’s entirely possible to win a litigation battle but lose the constitutional war. If the Court’s opinion results in a win for an individual plaintiff but establishes a precedent that ultimately grants the state greater leeway to censor American citizens, then in a real way liberty loses.
And that’s exactly the outcome the Trump administration is seeking in the NIFLA case.
Here’s what happened. Traditionally, the state may compel a citizen to speak only if the policy passes the most stringent of constitutional tests, called “strict scrutiny.” Under strict scrutiny, the government’s censorship may prevail only if it is narrowly tailored to advance a compelling governmental interest and uses the least restrictive means for achieving that interest. Strict scrutiny is tough, so tough that it’s often called “strict in name, but fatal in practice.”
The Trump administration is trying to split the constitutional baby — arguing for a limited pro-life victory while at the same time expanding state power over speech.
Strict scrutiny applies to any effort, for example, to compel political, religious, or cultural speech. It protects the right of conscience so powerfully outlined in West Virginia v. Barnette, the principle that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
In the NIFLA case, however, the Trump administration argues that strict scrutiny is not the relevant standard of review. Instead, it would like the Court to apply so-called “heightened scrutiny” to the mandatory advertisement for free or low-cost abortions. Under this level of review, the government goal has to be “substantial,” and the government has to “carefully calculate the cost” and “‘affirmatively establish [a] reasonable fit’ between the restriction and the government’s interest.”
Cutting through the legalese, let’s make this plain — the Trump administration is arguing for a standard that grants the state greater power to censor. It is extending the “broad power to establish standards for licensing practitioners and regulating the practice of professions” to the non-commercial speech of nonprofit advocacy organizations that are in the very business of persuasion. It is arguing that this standard applies even though there is nothing particularly “professional” about a state-mandated ad for free or low-cost abortions.
Yes, the administration (thankfully) goes on to argue that California’s mandatory abortion advertisement is unconstitutional even under this lower standard of review (though it sides with California on the secondary issue), but the administration makes it more likely that NIFLA will lose its case — and even if NIFLA wins, the greater cause of the First Amendment could suffer a real setback.
If the Supreme Court agrees with the Trump administration and holds that only “heightened scrutiny” applies to a direct effort to compel a nonprofit to post an advertisement directly contradictory to its mission and purpose, then get ready for a flood of similar efforts — no matter the outcome of this case. If, by contrast, SCOTUS applies strict scrutiny — and draws careful lines between commercial transactions and nonprofit advocacy — then all professional nonprofits (right and left) can breathe a sigh of relief. The guardrails will hold.
Given the enormous cultural and political power of the learned professions — doctors, lawyers, counselors, etc. — governments tend to covet the authority to regulate professional speakers. By shaping rules of ethics and mandatory notices, the government can transform public debate. In NIFLA, the Trump administration is trying to split the constitutional baby — arguing for a limited pro-life victory while at the same time expanding state power over speech.
In many ways the Trump administration has been a blessing for the pro-life cause. But not in this case. Not in this brief. The Court should reject the DOJ’s reasoning. Strict scrutiny should apply to any effort to force a nonprofit — even a professional nonprofit — to engage in speech that is contrary to its very mission and purpose.