Law & the Courts

A Welcome Blow for Free Speech

Pro-life advocates demonstrate outside the Supreme Court in Washington, D.C., June 26, 2018. (Leah Millis/Reuters)

The Supreme Court has issued its decision in NIFLA v. Becerra, a 5–4 vote holding that the state of California cannot compel pregnancy-resource centers to advertise for the state’s abortion services. We applaud this decision, which represents a considerable victory for both the right to free speech and the conscience rights of pro-life Americans.

The case concerned California’s Reproductive FACT Act, which mandated that both licensed and unlicensed women’s-health clinics (crisis-pregnancy or pregnancy-resource centers) that don’t perform abortions must provide a pre-written notice to clients:

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].

Though the law related specifically to abortion, free speech was the fundamental issue at stake. This being so, the vote should not have been a narrow one. Alas, four of the Court’s justices were so hell-bent on promoting the manufactured right to abortion that they were prepared to jettison a real, preeminent, foundational liberty.

Justice Clarence Thomas’s majority opinion cast the case more clearly, noting that there exists no such category in America as “professional speech” and concluding that to invent one would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” In a short concurrence, Justice Kennedy dispensed with the idea that the First Amendment is outmoded. The viewpoint discrimination inherent in the FACT Act was “a matter of serious constitutional concern,” Kennedy concluded, and the law served as “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

Though this decision is worth celebrating, it’s lamentable that the Supreme Court was ever asked to consider such an obvious and malicious violation of the First Amendment. The FACT Act is perhaps the best example of the rapidly growing extremism of the abortion-rights movement — and, of course, of the intensely progressive bent of California’s state government.

As Justice Thomas noted, the state government could very easily have accomplished its supposed purpose — ensuring that California women are aware of the low-cost abortion program — without needlessly conscripting pro-life centers into its effort. “[California] could inform the women itself with a public-information campaign,” Thomas observed. “California could even post the information on public property near crisis pregnancy centers. . . . Either way, California cannot co-opt the licensed facilities to deliver its message for it.”

Instead, the state intentionally targeted pro-life health centers and insisted that they violate their beliefs by facilitating a procedure they believe to be immoral. No other health centers were subject to the law’s requirements — which, we rather suspect, was the point. Clearly, ensuring that women are aware of low-cost abortions was not California’s sole aim; the state had a clear bias against pro-life groups and in favor of the abortion industry (the bill was drafted with the assistance of Planned Parenthood executives). For now, at least, such behavior remains forbidden in America.

NOW WATCH: Free Speech & Pro-Life Advocates Win in NIFLA 

The Editors comprise the senior editorial staff of the National Review magazine and website.

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