WASHINGTON, D.C. June 26, 2018 — The Supreme Court handed down its decision in NIFLA v. Becerra today, involving a California law that forces draconian speech mandates on pregnancy resource centers. The grossly misnamed “Reproductive FACT” Act has two distinct parts: one forcing medically-licensed centers to tell women how to obtain state-funded abortions, and the other requiring non-medical centers to display large signs stating that they are not medical centers. These disclaimers must also be posted on the center’s website and on all print and digital advertising in as many as 13 “threshold” languages.
The Court held that the provision applying to medical centers “likely violates the First Amendment,” as it is a content-based regulation that compels medical centers to “speak a certain message,” thus altering the content of their speech.
Justice Thomas, writing for the Court, emphasized the importance of free speech in the context of the relationship between medically-licensed centers and their patients: “Throughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities.”
Justice Kennedy wrote a blistering concurring opinion addressing the Act’s inherent viewpoint discrimination. Kennedy found that the Act “imperils” constitutional liberties and went on to school the California legislature in First Amendment jurisprudence, pointing out “how relentless authoritarian regimes are in their attempts to stifle free speech.” (Read the full quote below.)
Regarding the unlicensed provision, the Court found the Act’s requirement to post a 29-word disclaimer in as many as 13 different languages to “unduly burden protected speech.”
Life Legal filed a “friend of the court,” or amicus curiae, brief in March on behalf of Priests for Life and the Justice Foundation, representing women who work for pregnancy resource centers. We addressed the Act’s unlicensed provisions, arguing that the State has no legitimate interest in forcing non-medical pregnancy centers to post the disclaimer, as the centers do not provide services that require them to be licensed in the first place. Indeed, the brief argued, women confronting an unplanned pregnancy may be better served by conversations with “unlicensed” post-abortive volunteer counselors than “licensed” abortionists trying to reach a quota.
The Court echoed our arguments, holding that “California has not demonstrated any justification” for the “government-scripted” disclaimer.
“Pregnancy centers were targeted by the abortion industry and its legislative lackeys precisely because they effectively communicate the inherent value and dignity of all human life, including life in the womb,” said Life Legal Executive Director Alexandra Snyder. “We are pleased with today’s opinion vindicating the First Amendment right of pregnancy centers to continue to impart a wholly pro-life message.”
Justice Breyer wrote a lengthy dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.
It should be noted that this is not the final decision in the NIFLA case. The Court sent the case back to the Ninth Circuit for further review.
“The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.”
But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977).
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.
Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
— Justice Anthony Kennedy, NIFLA v. Becerra