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Ellen K. BoegelMarch 22, 2018
Anti-abortion demonstrators cheer during a rally outside the Supreme Court in Washington, Tuesday, March 20, 2018, as the Supreme Court hears arguments in a free speech fight over California's attempt to regulate anti-abortion crisis pregnancy centers. (AP Photo/Andrew Harnik)

The First Amendment protects free speech and limits the government’s ability to compel speech, but neither the right to speak nor the right to be silent is absolute. On March 20, the Supreme Court heard arguments in National Institute of Family and Life Advocates v. Becerra, a case that may further define the extent of First Amendment safeguards.

The challenged California Reproductive FACT Act was enacted in 2015 and has different requirements that apply to licensed and unlicensed pregnancy-related providers. According to the law, licensed medical clinics operated by nonprofit organizations that do not provide abortion services must post the following notification: “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].”

Unlicensed pregnancy-related facilities must post a different notice in 48-point font: “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.” Unlicensed facilities also must include this message in all advertising, in a font size at least as large as the advertisement copy, and in as many as 13 languages, depending on the local population.

Pro-life, anti-abortion crisis pregnancy centers object to the law because “[f]orcing a pro-life group to advertise for abortion has to be unconstitutional.” California, it is argued, cannot be permitted to enforce this law, which levies fines for noncompliance, against centers whose “sole mission is encouraging expectant mothers to give their children the opportunity for life.”

The crisis pregnancy centers also allege the cost of complying with the law is prohibitive and would deplete funds intended for fulfilling their mission. A federal trial judge in San Diego disagreed and determined the law does not violate the First Amendment. The U.S. Court of Appeals for the Ninth Circuit agreed.

Pro-life, anti-abortion crisis pregnancy centers object to the law because “[f]orcing a pro-life group to advertise for abortion has to be unconstitutional.”

A California state court came to the opposite result with regard to the licensed provider requirements. The U.S. Supreme Court agreed to hear the case, but Justice Stephen G. Breyer questioned whether it was prudent, or even possible, to decide the legal issues without a trial on the facts.

Free speech cases are analyzed using a variety of tests that weigh the government’s need for a challenged law against the burden imposed by the law. Using speculative facts skews that delicate balance. The crisis pregnancy centers insist the facts are sufficiently established to constitute a constitutional violation because under any circumstances the law for licensed facilities compels pro-life providers to promote abortion services and the disclaimer requirement for unlicensed providers dilutes their anti-abortion message. This alone, they argue, is enough to declare the law unconstitutional.

The Supreme Court has developed three tests to determine whether the Free Speech clause has been violated, but the justices do not always agree on when to apply these tests. It is clear, however, that a law favoring one viewpoint over another will be given “strict scrutiny” and will be deemed unconstitutional unless the law serves a compelling government interest and is narrowly tailored to achieve that interest. A classic example of strict scrutiny application is United States v. Playboy Entertainment Group, Inc., which struck down a federal law that blocked adult cable-television programming during certain hours; the court held the government could have achieved its goal of protecting children in a less restrictive manner.

Laws that do not discriminate against specific content or viewpoints are given greater leeway and are judged by an “intermediate scrutiny” standard. The Supreme Court has applied intermediate scrutiny to test regulation of commercial speech, such as truth-in-advertising laws, and restrictions on protests outside abortion clinics. Intermediate scrutiny requires a substantial relationship to an important government interest. The Ninth Circuit applied this standard to the FACT Act, and the federal government argues it is the appropriate standard to use when regulating “professional speech” of licensed medical providers.

The easiest standard to meet is the rational relationship test, which merely requires that a law be rationally related to a legitimate government interest. This test was used by the Fifth and Eighth Circuit courts when they upheld state laws compelling doctors to convey specific abortion-related information. Those courts based their analysis on two Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Gonzales v. Carhart, which acknowledged that “the practice of medicine, [is] subject to reasonable licensing and regulation by the State.”

The California crisis pregnancy centers assert that strict scrutiny should be applied whenever the government compels the content of speech that is not part of a warning prior to carrying out a “medical intervention.” This standard would permit states to require doctors who perform abortions, which are medical interventions, to issue specific warnings to women but would prohibit states to require speech from doctors or nonmedical personnel who counsel women not to have abortions.

During oral argument Justice Breyer objected to this as sauce for the goose, but not the gander. In its amicus brief, the United States Conference of Catholic Bishops proposed a compromise rule that ignores the medical intervention distinction and focuses instead on the characteristics of the speaker. The U.S.C.C.B. argues that strict scrutiny should apply not just to abortion notification cases but whenever the speech of religiously affiliated nonprofits is regulated.

At oral argument, several justices expressed concern that the California FACT Act may have been written specifically to target nonprofit, anti-abortion speakers. The Supreme Court could use this idiosyncrasy to send the case back for more findings of fact or issue a narrow, case-specific ruling. A broader decision that articulates a standard of review applicable to other compelled speech regulation would resolve conflicts among the lower federal courts and help legislatures fashion constitutional regulations.

We should know the outcome of the court’s deliberation by late June.

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JR Cosgrove
6 years 2 months ago

There was a survey recently which showed a high percentage of the young but especially women are generally not for free speech. So the photo used in this article is a little ironic as it features young women.

Maybe egregious laws such as what California passed will start a debate on the value of free speech. Is California showing what Big Brother begins to look like?

If you want to see how free speech plays out in a Catholic university, google "Providence College won’t defend student threatened with gay rape for defending marriage" Which leads one to the conclusion that many Catholic universities are not Catholic any more.

Mike Theman
6 years 2 months ago

I just had a conversation with my 17yo daughter about free speech. I had to read the First Amendment to her and explain why protecting all speech, particularly speech that we don't like, is important. The schools now emphasize that "not all speech is protected by the Constitution" (thanks to a twisted reading of the Supreme Court's opinions on the subject), and especially that "hate speech" (which she pretty much defined as speech that anyone finds offensive) is not protected.

Government schools sow the seeds of tyranny.

Crystal Watson
6 years 2 months ago

The reason this law in California was created was because "crisis pregnancy clinics" have been lying to the women who end up there. The clinics pretend to be medical clinics that can help with contraception and abortion but instead they are anti-abortion activists who try to convince vulnerable women to continue with their pregnancies. This isn't about free speech, it is about telling women the truth about their legal options.

Lisa Weber
6 years 2 months ago

Use of the word "clinic" implies that it practices medicine. It is good to help women find a way to continue with a pregnancy they feel distressed about, but they should leave the word "clinic" out of their title and make their mission clear to those seeking their guidance.

Crystal Watson
6 years 2 months ago

People at the crisis centers also mislead the women who end up there, lying to them about the physical and mental/emotional effects of abortion and about the effectiveness of contraception. There's a Wikipedia page on 'crisis pregnancy centers' that cites many sources, articles in the news, journal articles on this. It's because of the lies that California made this law.

Tim Donovan
6 years 2 months ago

I certainly am no lawyer. However, I think there is ample evidence that abortion facilities often provide women with inaccurate information (and in some cases, lie to them). In a 1963 pamphlet titled "Plan Your Children for Health and Happiness," Planned Parenthood stated that " Abortion kills the life of a baby after it has begun. " However, less than a decade later, Planned Parenthood favored legal abortion for any reason. Also, Faye Wattleton, a former President of Planned Parenthood, admitted in a magazine interview that abortion killed a fetus. (It should be noted that fetus is a Latin term which means "young one." It seems reasonable to me that the young one of a pregnant human woman is also a human being. Yet I think it's common for abortion facilities to use the term as if the unborn are merely non-human beings . Landry Shettles, M.D., is an ob/gyn who wrote a very compelling book, "Rites of Life: The Scientific Evidence for Life Before Birth." Shettles, for the record, isn't a Catholic and favors contraception . However, he noted that Alan Guttmacher, M. D., a prominent President of Planned Parenthood, had earlier in his career admitted the biological fact that a new human being came into existence at the moment of fertilization, but in time he reversed his position and simply referred to a fetus as a job-human being. Dr. Shettles made the point that it was fairly common for physicians who favored the violence of legal abortion to privately admit that abortion killed a human being, but to publicly deny this fact. I also read another very compelling and honest book, "Aborting Amerca," by the late Bernard Nathanson, M. D, in which he also admitted, as an atheist based on biology that abortion killed a human life. It should be noted that Nathanson still favored legal abortion with some restrictions when. He made his admission. He also noted that he was one of those who came up with many of the frequently used so-called pro-choice slogans, such as abortion should be a matter between "a woman and her doctor," while admitting that most abortions were performed for social or economic reasons, not medical reasons . Yet for many years staff at abortion facilities have falsely claimed that doctors were the ones who provided pregnant women with counseling about abortion. However, from my personal experience I can recall a major abortion facility in my county that distributed pamphlets which clearly states that counseling wouldn't be provided by a physician, but that the pregnant woman wouldn't even meet the doctor performing the "procedure' until just prior to the abortion. I also can affirm from having volunteered at a crisis pregnancy center that the many hundreds of such centers nationwide provide practical, compassionate assistance to pregnant women and their children. Some states, including my home state of Pennsylvania, legally require that women considering abortion be given the opportunity to hear about abortion, but the decision to receive the information tests with the pregnant woman. However, the FACT law would indeed violate the freedom of speech of pro-life advocates by mandating that they violate their ethical beliefs and prominently post information about the availability of the violent option of abortion. Finally, one more example of the fact that a new human being comes into existence at fertilization is the reality of in vitro fertilization (so-called test tube babies." One of the physicians ( I believe his name was Dr. Steptoe) said regarding Louise Brown, the first such "test tube baby" , director the effect that he Had first seen her as a fertilized ovum.

Lisa Weber
6 years 2 months ago

Tim Donovan - I am not in favor of abortion, but I am in favor of honesty. If an organization is not practicing medicine, it should not use the word "clinic" in its title. If it has a particular mission with regard to pregnant women, it should be clear about what that mission is - even before a woman walks in the door. Lies never serve religious organizations well because religion is a search for the truth.

Randal Agostini
6 years 2 months ago

In our Declaration of Independence we assert that Truth is self evident. This simple logic will only apply when when Man searches for the truth. The same can be said about God - in whom we say we place our Trust. To live within the Trust of God is the most secure and wholesome place to be. Everything outside of this environment is a construct of Man - an agenda driven World that strives to satisfy some at the expense of others - the opposite of our purpose -to Love one Another. The rest is Babel.

Ellen B
6 years 2 months ago

"Free speech" to these "clinics" means that they can lie & deceive. If they are not medical facilities, they should not be using terminology which leads people to believe that they are medical CLINICS. Truth in advertising laws are an example of how "free speech" is not unlimited.

You give up the high moral ground when you start lying & practicing "the ends justify the means".

Crystal Watson
6 years 2 months ago

The ends justifying the means was the excuse used by church leaders when they covered up sex abuse. Lying for the greater good doesn't work out very well.

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