Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra, one of three important compelled-speech cases this term. The facts were simple. California had passed a law, the so-called FACT Act, that required licensed pro-life pregnancy centers to place prominent notices that California provided free or low-cost abortions to qualifying patients. If the facility was unlicensed, it was required to prominently declare its unlicensed status in multiple languages.
The alleged purposes of the law were to more fully inform women of their abortion options and to prevent fraud — i.e., to prevent pro-life centers from misleading women about their services and from concealing the full range of ways that women can “complete their pregnancy,” to use Justice Elena Kagan’s ominous phrase.
In reality, the state has numerous ways of communicating its message without conscripting the speech of pro-life doctors, nurses, activists, and volunteers. It can advertise its free or low-cost abortions on television, the radio, the Internet, and social media. It can rent billboard space right next to a crisis-pregnancy center. It can hand out flyers outside a crisis-pregnancy center. But that’s not enough for California. It chose to force pregnancy centers to dilute their own pro-life message.
Yesterday California’s law faced its Supreme Court test. While one must always exercise caution in predicting case outcomes, the argument very effectively highlighted California’s extremism, and Justices Samuel Alito and Anothony Kennedy were the principal inquisitors. Here’s one key exchange:
JUSTICE ALITO: So you have [an unlicensed] facility that offers pregnancy testing and they advertise that they offer pregnancy testing. That’s all they do. And they put up a sign, an ad that says “choose life.” They have to put in the disclaimer?
KLEIN: If it — yes, in that circumstance, they may be required to do that. And —
JUSTICE KENNEDY: Do you agree that mandating speech that the speaker would not otherwise give — indeed, does not agree with — alters the content of the message?
KLEIN: Yes, it does, Your Honor.
Think for a moment about California’s confession. It is asserting that it has the power to fundamentally change an advertisement with a simple pro-life message into primarily a statement about a pregnancy center’s licensing status. The words “choose life” would be accompanied by licensing notices in up to 13 separate languages. It could turn a billboard about life into a billboard about licensing. And why? Is there evidence that pro-life centers are fraudulent? Did California lack anti-fraud statues?
Justice Ruth Bader Ginsburg inquired whether California had brought charges against any pregnancy center for false and misleading advertising. Klein said he was “not aware” of a single state case and then indicated that he “believed” San Francisco had. Gorsuch followed up with the next logical question:
JUSTICE GORSUCH: But counsel, [a general anti-fraud statute] would have the virtue of applying evenly to all persons and all industries in a law that is very familiar. I mean, anti-fraud provisions in commercial speech are well-known and — and don’t pose any of the problems we’ve been discussing today. So why wouldn’t that be a superior mechanism for addressing these concerns, if — if we’re talking about a narrower set of concerns, just any fraud concerns?
KLEIN: So to the narrower concerns, which are not the only ones here, it could be significantly more or at least it’s an open question about whether it would be as or more speech-intrusive to be really getting into everything that the petitioners are saying to assess it, as opposed to requiring a two-sentence notice that mostly obviates the need for that because it gives women the information to protect themselves and make informed decisions in the very limited time that they have available, simply by seeing the notice to call the government.
In other words, according to California’s own lawyer, rather than go to the trouble of investigating and proving actual wrongdoing, the state decided to go ahead and override the free speech of law-abiding pro-life citizens. That “two-sentence notice” that Klein minimizes actually undermines the very purpose of the pregnancy center. No, it’s worse than that. As I wrote in an amicus brief I filed on behalf of 41 pro-life family-policy councils:
Pro-life professionals, as part of their daily lives, are forced not only to be messengers for an ideological point of view (that it is appropriate for the state to provide abortion access) but even to abet a course of action (calling the listed phone number) that can culminate in the death of an unborn child — the very thing that pro-life pregnancy centers exist to prevent.
If California is concerned that women don’t have enough information about their reproductive choices, it can use its immense resources to deliver its own message. If California is concerned that any given pro-life pregnancy center is misleading its clients, it can investigate the individual alleged wrongdoer. Instead, it chose to do what it must not be permitted to do — force private citizens to deliver the state’s message, a message that directly contradicts the very purpose of their work.
The Supreme Court will likely issue its ruling later this spring. One can only hope that it remembers California’s extremism as it renders its judgment.