Pro-Choice Coercion

Supreme Court will hear challenge to California law forcing pro-life clinics to inform patients about abortion

Supporters of Planned Parenthood
Supporters of Planned Parenthood / Getty Images
• November 13, 2017 3:10 pm


The Supreme Court agreed on Monday to hear National Institute of Family and Life Advocates v. Becerra, which challenges California's law requiring pro-life crisis pregnancy centers to post notices that advise patients or visitors about taxpayer-funded abortion programs.

The institute argues the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act unconstitutionally violates its freedom of speech and religion by coercing it to refer patients to abortion services. The Court said it would hear the case on free speech grounds, while declining to take up the conscience aspect of the suit.

The institute's attorneys at the Alliance Defending Freedom (ADF), a nonprofit legal assistance group focusing on religious liberty, said in a news conference that free speech is violated "whether it's censored or coerced."

"The government should never be permitted to coerce speech it favors over speech it does not favor," said ADF President and General Counsel Michael Farris. "This [law] has a direct partisan, one-sided effect."

The 9th Circuit Court of Appeals upheld the law, saying the law did not endorse abortion and was viewpoint neutral. Attorney General Xavier Becerra, who received thousands of dollars from Planned Parenthood and other abortion industry interest groups as a congressman, pledged to continue to defend it in court in a press release. He said the law aims to better inform California women of their options during pregnancy.

"The Reproductive FACT Act ensures that women in California receive accurate information about their healthcare options," Becerra said in a statement. "The California Department of Justice will do everything necessary to protect women’s healthcare rights."

The California Attorney General's office did not respond to request for comment.

The law not only forces doctors in medical practices and other pro-life clinics to provide patients with information about procuring an abortion, but takes aim at non-medical facilities. Crisis pregnancy centers that offer pregnant mothers non-medical aid, such as food, clothing, furniture, and baby supplies, are also forced to post disclaimers that they are not medical facilities.

ADF Senior Counsel Kevin Theriot said this aspect of the law boosts his client's case. The state has more wiggle room to regulate medical facilities, but the law "goes way beyond informed consent for a surgical procedure," according to Theriot. The inclusion of non-medical facilities clarifies the viewpoint discrimination inherent to the law.

"They are being forced to say something in a way that crowds out their other message," he said. "The FACT Act applies when no medical procedure is being provided … so the state's interest in coercing that type of speech is much less than in situations when informed consent needs to be provided."

The case could have ramifications beyond California. Similar legislation has been adopted in other heavily Democratic states, including Hawaii and Illinois. Those regulations would be vulnerable to legal challenge even if the Court decides to rule only on California's law.

"There are copycat laws popping up all over the place," Theriot said. "We are very optimistic and hopeful that the Supreme Court will demonstrate not only to California, but to other states that forced speech … is just not acceptable and antithetical to what the founders set forth."

Other pro-life groups share in this optimism. Ashley McGuire, a senior fellow with the Catholic Association, said crisis pregnancy cents "offer pregnant women in crisis a true choice in addition to dignified care" and offer assistance without any political agenda. She called California's attempt to regulate the guidance offered inside the center's a government-sponsored endorsement of abortion.

"Recent efforts to force America's pregnancy centers to advertise for abortion isn't just an attack on free speech, it's an attack on the vulnerable women who find help and healing in them," she said in a statement. "We hope the Supreme Court can put an end to these unwarranted free speech assaults so that the centers and their staff can go on helping women without harassment from the abortion industry."

California's law has faced other legal challenges as well. A California Superior Court held the FACT Act violated the state constitution in October. Judge Gloria Trask said the law's mandates "compelled speech [that] is political in nature" and granted a permanent injunction on behalf of a crisis pregnancy center that was targeted by the law.

Published under: Abortion, California, Supreme Court