While it begins its final sitting of 2017 this week, the Supreme Court already has many Americans anticipating the hearing of a case the justices just announced they will take up in 2018. Likely to become a high-profile ruling, the outcome of National Institute of Family and Life Advocates v. Becerra will determine if free speech is really free or if it can be dictated by the government.
The case centers on the question of whether or not the state of California can force pregnancy resource centers to provide information to patients on access to state-funded abortion services, thereby essentially turning pro-life centers into abortion advertisers and referral agencies. California’s 2015 Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act does just that by requiring pregnancy resource centers to hang signs in their waiting rooms displaying a phone number a patient could call to get an abortion, or to distribute such information individually to all clients. The notices are to state the following:
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].
If posted in the waiting room, the law requires that the notice be at least 8.5 inches by 11 inches and written in at least 22-point type. If printed and distributed to clients, it must be at least 14-point type. If distributed digitally, it must be in the same point type as all other digital disclosures.
Steve Casey, an Alliance Defending Freedom-allied attorney, pointed out the absurdity of the law by comparing it to requiring “McDonald’s . . . to advertise that they don’t sell Whoppers,” or Home Depot “to advertise that it doesn’t sell dresses or tennis shoes.” He went on to accuse the law of being “in essence, a government subsidy of abortion clinics by means of coerced advertising.”
State and federal courts in New York, Maryland, Texas, and Illinois have already struck down similar laws as unconstitutional, and just earlier this month, a California state court judge ruled against the Reproductive FACT Act for compelling citizens to speak a message they disagree with. In her decision, Riverside County Superior Court Justice Gloria C. Trask agreed with the plaintiffs that the law violates California’s 1849 Declaration of Rights’ guarantee of “individual freedom of mind” and violates free speech.
This ruling thrilled those opposed to the law whose concerns had previously been dismissed by the 9th U.S. Circuit Court of Appeals. Scott Scharpen of “Go Mobile For Life” applauded the decision saying, “The whole notion of being compelled to share information with our patients about abortion availability, which is contrary to our mission and purpose, is fundamentally wrong. Lives will be saved because of this ruling.”
Now that the Supreme Court has agreed to hear arguments on the case, the plaintiffs at the National Association of Family and Life Advocates (NIFLA) hope Trask’s decision will be further confirmed. Thomas Glessner, founder and president of NIFLA, predicts the Supreme Court’s ruling will impact everyone from “pro-life advocates, anti-war flag burners, and NFL anthem kneelers” and result in “serious implications for free speech nationwide.”
If the justices rule in favor of NIFLA, they will send a clear message to lawmakers that government-mandated speech is inconsistent with the First Amendment’s right to free speech and will not be tolerated. However, if they rule in favor of the state of California, Americans can expect their speech to become increasingly less and less free in years to come.
