Bench Memos

Law & the Courts

Supreme Court: People Lose When the Government Decides Which Ideas Prevail

In “Politics and the English Language,” George Orwell observed that “political speech and writing are largely the defence of the indefensible,” and that those who would seek to rule us often torture and twist language itself to conceal their true purposes. In fact, Orwell noted that “[w]hen there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.”

Orwell wrote his classic essay over 70 years ago, but he may as well have been talking about California’s AB 775, the euphemistically but inaccurately labeled “Reproductive FACT Act,” which the U.S. Supreme Court stopped enforcement of on Tuesday.

State legislators hatched AB 775 in 2015 with the support and involvement of abortion advocates such as NARAL and Planned Parenthood. Their publicly professed aim was to help needy women get health-care information. But like Orwell’s cuttlefish spurting out ink, they said one thing for public consumption, but meant to do quite another.

The thing they meant to do was force pro-life pregnancy centers to advertise for the abortion industry, and to impose on them state-mandated communication requirements so burdensome that their pro-life message would be drowned out in the process.

AB 775 required licensed pro-life pregnancy centers — which provide free assistance to pregnant women in the form of ultrasounds, pregnancy tests, and other help — to post “clear and conspicuous” signs or distribute forms stating that the state of California provides free or low-cost abortion and contraceptive services. The coerced message had to include a phone number to a county office which would refer women to Planned Parenthood and other abortionists.

AB 775 also targeted unlicensed pro-life pregnancy centers, which provide pregnant women with free material assistance such as diapers and baby clothes. It did so by requiring these tiny non-profits to announce the obvious, that they are not medical centers — in up to 13 different languages — thereby directly interfering with their mission and obscuring any pro-life message they might try to convey to women seeking their help.

In the end, AB 775 was so riddled with exemptions and exceptions to its communication mandate that it ultimately applied only to these pro-life pregnancy centers. That’s right — California sold the law by claiming all women urgently needed health-care information, and then imposed communication requirements exclusively upon small non-profit organizations directly opposed to abortion. California didn’t try to disseminate this information itself, and it didn’t require any other health-care providers to do so either, despite the fact that these other providers see the vast majority of pregnant women in the state.

In other words, AB 775 was not about disseminating health-care information but rather about forcing pro-life pregnancy centers to facilitate abortion. If California had been in the mood to be honest, it would instead have rolled out the “Pro-life Pregnancy Center Impediment and Punishment Act” or the “Abortion Facilitation and Encouragement Compulsion Act.” But none of these would have sold as well. For as Orwell knew, if the government is up to no good, it can’t very well say it’s up to no good if it wants to win. It has to wrap its malfeasance in sweeter terms to help the medicine go down.

Fortunately, the U.S. Supreme Court saw through California’s charade. In a stinging rebuke, Justice Clarence Thomas, writing for the majority, reminded California that this is still a free country: “[T]he people lose when the government is the one deciding which ideas should prevail.” Justice Anthony Kennedy, who joined the majority but also wrote a concurring opinion, was even more blunt, stating that “[g]overnments must not be allowed to force persons to express a message contrary to their deepest convictions.”

We should all be gratified by the Supreme Court’s decision, no matter our position on abortion. Because none of us should want to be a mere mouthpiece for the government.

Kevin Theriot is senior counsel with Alliance Defending Freedom and director of its Center for Life. He is a member of the ADF legal team representing the National Institute of Family and Life Advocates.

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