Last week the Supreme Court agreed to hear National Institute of Family and Life Advocates v. Becerra, a challenge to California’s Reproductive FACT Act, which Governor Jerry Brown signed two years ago. The law targets the state’s approximately 200 pro-life pregnancy centers.
Several legal-advocacy groups filed complaints with federal courts before the ink on Brown’s signature had dried. Last fall a three-judge panel of the Ninth Circuit Court of Appeals upheld the law, although courts have struck down similar measures in other states.
NIFLA, the plaintiff, contends that the Reproductive FACT Act compels speech, which on its face is a violation of the First Amendment. Specifically, the law requires every pregnancy center in California to make one of two announcements, depending on whether it’s licensed. Those that are not must post the following statement on their premises and feature it, “clear and conspicuous,” in their literature and on their websites:
This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.
It’s a warning label, in effect, which should satisfy detractors who allege that pregnancy centers routinely exaggerate their medical credentials. NIFLA argues that it’s a negative advertisement, something that “crowds out and confuses” a center’s “intended message.”
Licensed pregnancy centers must post the following notice or distribute it to prospective 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].
Of the three items in that list — contraception, prenatal care, and abortion — pro-life pregnancy centers support one (prenatal care) and obviously oppose another. On contraception, some centers may be ambivalent while others are outright opposed, because some drugs commonly classified as contraceptives can function as abortifacients.
So organizations dedicated to the avoidance of abortion as an “intrinsic evil,” to borrow a term from Catholic theology, must publish a notice implying that prenatal care, surgical abortion, and abortifacient drugs all coexist on the same plane of moral neutrality. The notice is worded to read like a mere recitation of a few simple facts, but their collocation implies a moral assumption that contradicts both the conviction that motivates those who operate nonprofit pregnancy centers and the conscience that leads women to seek their assistance.
The Supreme Court will decide whether the California law violates the free-speech clause of the First Amendment. The underlying political issue is the spread of pro-life pregnancy centers nationwide. They vastly outnumber abortion clinics and are hounded by abortion-rights activists, ostensibly for engaging in deceptive and manipulative practices.
Any pregnancy centers that are guilty of such should be held accountable by the pro-life community, but who would object to them in principle? To a facility staffed by honest professionals and volunteers offering prenatal care for women looking to avoid abortion? Oppose that and forget “pro-choice.” You’ve earned the title “pro-abortion.”
Brown’s approval of the Reproductive FACT Act was not a surprise, but it was a disappointment.