WASHINGTON DC, March 21, 2018 (LifeSiteNews) – Pro-life leaders are expressing confidence that the U.S. Supreme Court will ultimately protect pro-life Americans’ free speech rights and strike down a law mandating that California Pregnancy Centers promote abortion.
Oral arguments started yesterday in National Institute of Family and Life Advocates v. Becerra. The National Institute of Family and Life Advocates (NIFLA), the pro-life advocacy group named in the case, is representing nearly 1,500 pro-life pregnancy centers against a California law mandating that the centers provide written information advertising how to obtain abortions in the state. The law also mandates that pregnancy centers without medical licenses post disclaimers that they do not offer medical services.
The first day’s arguments left several leading pro-life figures confident that justices were far more sympathetic to their arguments than California’s.
“We hit a home run today in the court,” said NIFLA President Thomas Glessner told Catholic News Agency. “In fact, [Alliance Defending Freedom CEO] Michael Farris hit a grand slam home run.”
NIFLA Vice President of Legal Affairs Anne O’Connor said that while her group is praying for a 9-0 ruling, she predicted at least eight justices would side with pregnancy centers.
Farris agreed, saying he believed even several of the court’s more pro-abortion members thought California had gone too far. “If you have just an ad that says ‘life counts’ with the name of your facility and a phone number, then you have to – in the same size as the ad itself, the main words – put a 29-word disclaimer in multiple languages. That crowds out the message,” he pointed out.
“The Courtroom arguments we saw this morning strongly suggest that a majority of the Justices clearly see that California was unconstitutionally targeting pro-life pregnancy centers,” Americans United for Life President Catherine Glenn Foster, whose organization filed an amicus brief in the case, said in an email to LifeSiteNews. “They appeared to agree with AUL's friend of the court brief that what the state did was not appropriate regulation of medicine, but coerced speech in violation of the First Amendment.”
In her recap of the first day’s proceedings, SCOTUSblog’s Amy Howe notes that Justices Elena Kagan and Anthony Kennedy both signaled skepticism toward the law’s constitutionality.
Kagan, an appointee of former President Barack Obama who played a controversial role in defending partial-birth abortion as solicitor general for the Clinton administration, questioned whether the state had “gerrymandered” the law’s exceptions so that only applied to crisis pregnancy centers, which she said would be a “serious issue.”
The generally pro-abortion Kennedy, meanwhile, questioned whether the law was broad enough that it would force an unlicensed center to add a disclaimer to a “Choose Life” billboard, a hypothetical which California Deputy Solicitor General Joshua Klein did not dispute. That, Kennedy said, would constitute an “undue burden” on the center’s freedom of speech “that should suffice to invalidate the statute.”
Even one of pro-abortion Justice Ruth Bader Ginsburg’s questions had the result of casting California’s case in a negative light. She asked whether the state had ever filed charges against a pregnancy center for “false and misleading advertising,” the problem supposedly necessitating the law, to which Klein answered that it had not, claiming that doing so would have compromised patients’ privacy.
This explanation did not sway the court’s newest member, Justice Neil Gorsuch, who noted that existing anti-fraud laws would apply to all cases of misrepresentation impartially, providing a “superior mechanism for addressing these concerns.”
Liberty Counsel attorney Mat Staver told CBN News he thinks Justice Sonia Sotomayor, another pro-abortion Obama appointee, is also inclined to strike down the law as overly broad.
In remarks delivered yesterday on the Supreme Court steps during oral arguments, Family Research Council President Tony Perkins explained just how pregnancy centers’ life-saving work would be imperiled if the Supreme Court allowed the law to stand.
“This is designed to shut down these care pregnancy centers. The first fine is $500, the second a $1,000 a day,” he told the crowd. “You can do the math, it doesn't take long on a budget of $125,000 to shut down these care pregnancy centers. And guess what's happening in these care pregnancy centers — they're opening a window to life to these mothers through technology. And guess what's happening? They're choosing life.”
But pro-lifers are not the only ones who believe the Supreme Court should side with NIFLA.
In the New York Times, pro-abortion attorneys Robert McNamara and Paul Sherman write that their firm, Institute for Justice, filed a brief on NIFLA’s behalf because they believe a California victory would set a dangerous precedent for “one of the most important unanswered questions in First Amendment law: Do speakers check their First Amendment rights at the office door?”
A “growing number of courts — including the United States Court of Appeals for the Ninth Circuit, which upheld California’s law — have held that many restrictions on occupational speech are governed by what they call the professional speech doctrine, a rule that says professionals like doctors are entitled to less First Amendment protection than ordinary citizens because of the reliance clients place on their expertise,” they explain. “Applying that rule to the California case could give government officials broad authority to compel or prohibit speech by crisis-pregnancy centers.”
As a result of deeming professional speech beyond the First Amendment’s protection, McNamara and Sherman write that regulators “have invoked the idea of professional speech to crack down on everything from everyday advice about healthy eating to private citizens’ testimony at public city-council hearings.”
“No one should be forced to violate their conscience in order to make the government’s job easier,” Concerned Women for America national field director Janae Stracke summarized in an email to LifeSiteNews. “If you don’t support free speech for everyone, you don’t support free speech at all.”
The justices are expected to issue their ruling by the end of June.