Bench Memos

Law & the Courts

Justice Kennedy’s Views on Pro-Life Speech Tested this Term

Justice Anthony Kennedy. (Jonathan Ernst/Reuters)

On Tuesday, the Supreme Court heard arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra. That case is about the free-speech rights of pro-life pregnancy centers, which exist to empower women facing unplanned pregnancies — many of whom feel that abortion is their only option — to choose life. The state of California enacted a law that specifically targets those pro-life centers, compels some of them to point the way to free or low-cost abortions, and orders the rest to post large-font, multi-language disclaimers in their ads, thereby foreclosing some of their outreach efforts and cluttering the rest.

As with most cases raising contentious social issues, everyone is wondering what Justice Anthony Kennedy is thinking. In addition to what he said at oral argument, insight as to his views may be gleaned from what he wrote in an abortion-speech case decided nearly two decades ago.

That case is Hill v. Colorado. There, the state of Colorado enacted a buffer-zone law that prohibited one person from approaching within eight feet of another near the entrance to a health-care facility. The law, in purpose and effect, was designed to silence those encouraging pregnant women entering abortion facilities to choose life instead of abortion.

The majority of the justices voted to uphold that law. But Justice Kennedy had a different take, viewing the law as an obvious attempt to suppress pro-life speech. In his dissenting opinion, Justice Kennedy forcefully argued that the court got it wrong.

The Hill case, while different in many ways from NIFLA, has enough similarities to warrant a close look. At bottom, both involve governmental efforts to interfere with conversations about abortion at a critical time — right when women are in the midst of considering that option.

At least five key points stand out from Justice Kennedy’s opinion in Hill.

First, conversations with pregnant women contemplating abortion are among the most vital on that issue. “Nowhere is . . . speech” about abortion “more important,” Justice Kennedy wrote, “than at the time and place where the act is about to occur.” That is as true of discussions with women in pregnancy centers as it is of conversations with women entering abortion facilities. Rarely will the stakes of a conversation be greater.

Second, most people who share pro-life views with pregnant women are motivated by deep compassion and concern for those women and their children. As Justice Kennedy acknowledged in Hill, those pro-life speakers encourage each pregnant woman with whom they dialogue “to contemplate the nature of the life she carries within her.” And they lovingly communicate that choosing abortion “is not necessarily concomitant with making a sound moral choice.”

Third, those conversations are not theoretical babble, but have a real-world impact. “[S]peech makes a difference,” Justice Kennedy wrote, “when acts of lasting significance and profound moral consequences are being contemplated.” The information exchanged often affects the “woman’s decisionmaking process.”

To illustrate this point, Justice Kennedy’s opinion in Hill quoted the testimony of a woman who initially felt that “abortion [was] the only way out,” but after receiving information from a pro-life supporter outside an abortion facility, decided to give her little boy “a chance at life that he would never have had.” Discussions inside a pregnancy center, no less than those outside an abortion facility, can make all the difference to women deciding which path to take.

Fourth, this kind of pro-life speech — given its importance — is entitled to strong constitutional protection. As Justice Kennedy explained, the Supreme Court “should expend its utmost effort to vindicate free speech, not to burden or suppress it,” when the government interferes with sensitive discussions about abortion. In Hill, “the citizens who claim[ed] First Amendment protection [sought] it for speech which, if it is to be effective, must take place at the very time and place a grievous moral wrong, in their view, is about to occur.” Judges should not “tear[] away” from pro-life speakers “the guarantees of the First Amendment when they most need it.”

Fifth, Roe v. Wade makes it all the more essential to protect the speech of these pro-life proponents. “Foreclosed from using the machinery of government to ban abortions in early term,” Justice Kennedy wrote in Hill, “those who oppose it are remitted to debate the issue in its moral dimensions” — they are left “to convince their fellow citizens of the moral imperative of their cause.” Just as states have no rightful place silencing speech outside an abortion facility, neither should they interject disruptive and burdensome messages into pregnancy centers’ speech.

Guessing a justice’s vote in a high-profile case is a fool’s errand. But a careful look at Hill reminds us that Justice Kennedy has placed pro-life speech with pregnant women considering abortion at the pinnacle of constitutional protection. How that translates in the NIFLA case, we’ll have to wait until June to find out.

Jim Campbell is senior counsel with Alliance Defending Freedom, which represents NIFLA in its case pending before the Supreme Court.

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