Bench Memos

Law & the Courts

Did California Misstate the Facts to Justice Ginsburg in NIFLA v. Becerra?

Supreme Court Associate Justice Ruth Bader Ginsburg (Joshua Roberts/Reuters)

Tuesday’s oral argument in NIFLA v. Becerra went quite poorly for those hoping the Court would endorse California’s effort to impose speech restrictions on pro-life pregnancy centers. The Justices took turns pointing out obvious unconstitutional applications of the law, questioning whether California had gerrymandered its law to target pro-lifers, and wondering about the quantum leaps in First Amendment doctrine that would be required to sustain the law.

But the most important exchange — and the one that is indicative of a longer-term problem for the pro-abortion side in a range of speech and religion cases — related to whether the law was even needed in the first place. Supporters of pregnancy-center speech restrictions often claim that the laws are needed because pregnancy centers use deceptive advertising and other tricks to mislead women. California itself had argued that its law was necessary so that pro-life centers do not “attract women into their facilities based on confusion or deception” about their services.

There is a rather glaring problem with this argument. If pregnancy centers engaged in the kind of behaviors used to justify these laws — such as fraud, false advertising, practicing medicine without a license, or impersonating a doctor — then that behavior could be prosecuted using general laws that make such behaviors illegal regardless of the topic of speech. And surely blue-state attorneys general who hope to have a political future in the Democratic party (such as Respondent Xavier Becerra, and his predecessor, now-Senator Kamala Harris) would be eager to bring such cases both to protect women and to please their base. Yet there is no record that they ever even tried, which severely undercuts the claimed need for a special restriction on speakers who talk about pregnancy options.

California’s lawyer probably expected to be questioned on this topic, but he may have been taken aback by the identity of the Justice who pressed him: Justice Ruth Bader Ginsburg. He should not have been surprised — Justice Ginsburg, after all, joined an opinion several years ago in McCullen v. Coakley (the Massachusetts abortion-clinic buffer-zone case) taking Massachusetts to task for failing to identify “a single prosecution brought under [existing] laws within at least the last 17 years.” That case was a 9-0 loss for the government that was trying to use a new, targeted law to regulate speech where it could have achieved its goals with existing, speech-neutral laws.

At the NIFLA argument, Justice Ginsburg appeared focused on a similar problem for California, asking whether California had “ever brought charges against any of these places for false and misleading advertising?”

To his credit, California’s lawyer began his answer with the truth: that the state had not brought such charges under its law that already makes false advertising illegal for everyone. But, in an effort to suggest there was still a problem to be solved, he added, “I believe that the city and county of San Francisco has, for instance.”

That last part is likely false — at least in relation to the recent pregnancy-center controversies, San Francisco has not brought charges against pregnancy centers for false and misleading advertising. Instead, San Francisco actually behaved much like California did: It complained about alleged false advertising, never pursued any charges, and then used its own complaining as a basis to pass a special law targeting the speech of pro-life pregnancy counselors. That law is at issue in another pregnancy-center speech case that is right behind NIFLA v. Becerra at the Supreme Court, called First Resort, Inc. v. Herrera. The court in First Resort explained how San Francisco wrote a letter about alleged false advertising, but does not suggest that any charges were actually brought. With my colleagues at the Becket Fund and co-counsel from Locke Lord, I represent First Resort — and no such charges have been brought.

The lawyer’s error is easy enough to understand, and it reveals a problem that has plagued the pro-abortion side of speech and religion cases at the Supreme Court for the past several years. He presumably knew that San Francisco had made noise about alleged false statements, but had missed that they had never actually even tried to enforce the generally applicable law, instead proceeding to target pro-life speakers for special restrictions. In short, San Francisco cried wolf, and it looks like California’s lawyer may have mistakenly fallen for it.

But as in McCullen, Justice Ginsburg seemed keenly aware of the difference between merely complaining about an ideological opponent and actually having proof of a real problem that needs to be solved by restricting speech. Other recent decisions in pregnancy-center cases confirm that Justice Ginsburg’s instinct is correct. In a parallel case, the Fourth Circuit recently noted the absence of any proof of any actual harm: “After seven years of litigation and a 1,295–page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there.” And in striking down a similar Montgomery County, Maryland, statute, Chief Judge Deborah K. Chasanow found that, although she had given the county years to prove its case, the government’s arguments failed because of “the lack of any evidence that the practices of [pregnancy centers] are causing pregnant women to be misinformed which is negatively affecting their health.”

Nor are the pregnancy-center cases isolated instances of wolf-crying. For many years and over a series of cases involving Hobby Lobby, the Little Sisters of the Poor, and other religious groups, advocates told the Supreme Court that the contraceptive mandate was necessary to protect a compelling interest in women’s health. But when pressed by the Supreme Court, the Obama administration ended up admitting that there were actually many other ways for women to get contraceptives. And a new study by the Guttmacher Institute actually finds that the mandate was not compellingly important after all, as it brought “no changes in contraceptive use patterns among sexually active women.” So much for that argument.

And despite overheated claims that the Hobby Lobby decision would open the floodgates to a raft of religious-liberty claims by businesses and others, recent studies show nothing of the kind actually occurred.

There is a pattern here: In order to pass a law or try to win a lawsuit, over-the-top claims are made about why the government needs to restrict the speech or free exercise of an ideological opponent or the sky will fall. But when the proof comes in, the claims turn out to be false or vastly overstated.

Crying wolf may work well for political purposes, for raising money, or for convincing partisans on one side to enact a law. But our system of adversarial litigation — with its requirements of sworn evidence, candor to the court, and discovery — is actually well equipped to tell the real wolves from the imagined ones. Credibility is being burned with each episode in which the claimed problem turns out to have just been an excuse to target one’s opponents. And Justice Ginsburg’s questions show that, while she supports legalized abortion, she still understands that the First Amendment protects people on all sides and requires governments to only restrict speech when it actually has a compelling need to do so. Tuesday’s argument showed there is no such need in NIFLA v. Becerra.

Mark Rienzi Mark Rienzi is President of the Becket Fund for Religious Liberty. He is also a visiting professor at Harvard Law School and a professor of law at the Catholic University of America, Columbus School of Law.

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