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NIFLA Supreme Court Oral Argument Should Give Pregnancy Centers Hope

Posted by Rachel N. Busick on Mar 22, 2018, 1:36:45 PM

 After the hour-long argument, it was apparent that California’s law is in deep trouble. 

On Tuesday, the United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra. This case involves a First Amendment free speech challenge to California’s AB775, which targets pro-life pregnancy centers. See a full transcript of the oral arguments here.

California’s law has two main provisions. The first requires licensed pregnancy centers to post a notice on the wall (or through other means) that California offers free or low-cost abortions and contraception, along with a number to call for more information. The second provision requires unlicensed pregnancy centers—which do not offer any medical services—to include in all their public advertisements a 29-word disclaimer in large font and in up to 13 languages that their center has no licensed medical provider.

After the hour-long argument, it was apparent that California’s law is in deep trouble. Below are some takeaways from the argument that should give pregnancy centers across the country, and especially in California, much hope for a positive outcome in this case.

Is “sauce for the goose, sauce for the gander”? Perhaps the most memorable line from the oral argument was Justice Stephen Breyer’s statement: “what is sauce for the goose is sauce for the gander.” Basically, if a state can require a doctor who performs abortions to inform pregnant women about adoption and child support, why can’t a state likewise require a pregnancy center to inform women about abortion? This line of questioning came up multiple times during the oral argument as the Justices wrestled with what informed consent means in the pregnancy center context.   

As Americans United for Life pointed out to the Justices in the friend of the court brief we filed in this case, the Supreme Court held in Planned Parenthood v. Casey that a state has an interest in women being fully informed before they undergo an invasive medical procedure, such as an abortion. Informed consent requires that the doctor inform the patient about the benefits, risks, consequences, and alternatives to the specific proposed medical procedure. That is why a state can require abortion doctors to disclose alternatives to abortion, such as adoption and support services available to pregnant women and new mothers.

In contrast, abortion has nothing to do with informed consent for the limited medical services offered by licensed pregnancy centers, which include pregnancy tests, limited ultrasounds, and testing for sexually transmitted infections (STI). The fact that California offers free and low-cost abortions is not a benefit, risk, consequence, or alternative to a pregnancy test, limited ultrasound, or STI testing.

A gerrymandered law drawn to target pregnancy centers is “a serious issue.” Not only does the Califorina law require pro-life pregnancy centers to advertise for abortion and contraception against their deeply held beliefs, but through a set of elaborate exemptions, the notice requirement also only applies to pro-life pregnancy centers. This gerrymandering is evident from the face of the statute as several Justices seemed to acknowledge. Justice Elena Kagan pointed out that, if the law “has been gerrymandered, that’s a serious issue.”

The law’s required disclaimer is “very burdensome.” Many of the Justices seemed very concerned about the required disclaimer for unlicensed pregnancy centers, especially Justice Anthony Kennedy. He asked if an unlicensed pregnancy center had a billboard advertisement that said “Choose Life” whether the 29-word disclaimer in up to 13 languages would be required. Although California’s attorney initially tried to avoid the question, eventually even he admitted the answer was "yes."

Rising a little from his chair at this admission, Justice Kennedy exclaimed, “it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute!” Even the Court’s more liberal Justices seemed troubled by this provision, including Justice Ruth Bader Ginsburg, who agreed that a 29-word disclaimer in 13 different languages “can be very burdensome.”

The First Amendment is alive and well. Finally, but not least, the Justices seemed particularly concerned about the free speech implications of the California law. As Justice Neil Gorsuch explained, if you’re trying to educate a group of people about their rights, “it’s pretty unusual to force a private speaker to do that for you under the First Amendment.” It was only four short years ago, when even the Court’s liberal justices were willing to defend pro-life speech in McCullen v. Coakley, where the Court unanimously struck down a Massachusetts law requiring a “buffer zone” around abortion facilities as a violation of free speech under the First Amendment. As I left the Court, there was a sense of hopefulness that free speech would once again prevail, even in the abortion context.

Reason for hope: with all the media attention surrounding this case, pregnancy centers—often described as the hidden gem of the pro-life movement—have come to the forefront of national attention. We think that’s a good thing—more people now know about pregnancy centers and the good work that they do providing free services and support to women and men facing difficult pregnancy decisions. That should give pregnancy centers hope—hope for the future and hope for life.

See the amicus brief Care Net submitted to the Supreme Court of the United States on behalf of its more than 1,100 affiliates.


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Rachel N. Busick is Staff Counsel at Americans United for Life.

 

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