Bench Memos

Politics & Policy

Supreme Court Should Strike Down California’s Forced-Advertising Law

What if a state forced all of its citizens to display a message on their cars that reads, “Live Free or Die”? George and Maxine Maynard were in just that position and objected to the phrase both politically and religiously, so they didn’t want the government to force them to display it on their vehicle. The Supreme Court agreed and ruled in their favor in 1977’s Wooley v. Maynard decision — an outcome that would have been even easier for the Maynards to achieve if the state of New Hampshire had been foolish enough to require only those who disagree with the message to display it.

But what state would ever do that? California would — and does.

The Reproductive FACT Act, AB 775, targets pro-life pregnancy-care centers because they “discourage” abortion. That’s not an allegation; the state admits this to be the case. The law forces these centers to advertise for the abortion industry by requiring the display of a message informing women how to obtain a free or low-cost abortion from the state — including a phone number to call. Women who call that number and ask about obtaining an abortion are referred to Planned Parenthood and other organizations that perform abortions.

The state claims it is justified in forcing the pro-life centers to present a message that contradicts the very reason they exist because a center somewhere might decide to be deceptive in the counsel it gives to women. But no one ever submitted any proof to the legislature indicating pregnancy care centers in California are actually tricking women. And no one has ever found that any of the more than 100 pregnancy-care centers that are members of the National Institute of Family Life Advocacy have ever deceived women.

This demonstrates that California’s likely real motivation is to discourage the pro-life message that these pregnancy-care centers express, so it is coopting them to convey its own pro-abortion message. This is no different than the state of New Hampshire forcing George and Maxine Maynard to advertise its message in an effort to convey state pride, except it’s even more egregious because New Hampshire applied its rules to everyone who owns a car. California has purposely crafted its law to apply only to organizations that disagree with its message.

That’s why NIFLA asked Alliance Defending Freedom to file a lawsuit on its behalf to have the law declared unconstitutional. To date, both the federal district court and the U.S. Court of Appeals for the Ninth Circuit have refused to keep the law from being enforced against NIFLA and its pro-life pregnancy-care center members. So now ADF has asked the U.S. Supreme Court to take up NIFLA’s case.

The justices may very well decide to review the case because other federal courts in New York, Maryland, and Texas have found similar laws unconstitutional. Supreme Court guidance is needed to provide legal consistency in jurisdictions across the country.

California can use its authority — and even tax dollars — to convey its support for abortion through a number of means, including billboards, newspapers, radio, television, and the Internet. There is no need to force non-profit organizations dedicated to offering women alternatives to abortion to advertise for the abortion industry.

The Supreme Court should strike down this unjust law just as it struck down New Hampshire’s law that forced citizens, including the Maynards, to advertise the state’s preferred message. If they didn’t have to display the government’s words on their car because they considered it to be a message of death from the mouth of the state, then there’s no reason at all to specifically require a pro-life pregnancy-care center to do the same.

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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