Yet perhaps the most important comments came in Justice Kennedy’s concurring opinion. Kennedy did not mince words in writing that the law was “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” Kennedy took exception to California celebrating the law as part of its legacy of “forward thinking.” In response, Kennedy wrote, It is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”
Today [June 26, 2018] the Supreme Court ruled in favor of the National Institute of Family and Life Advocates (NIFLA) in a case likely to have significant impact in debates on abortion and free speech. The Court agreed with NIFLA that a California law requiring license pro-life pregnancy centers post information on where women can obtain low-cost abortion services violated the First Amendment rights of those operating the centers. Such a case seems so obvious it is almost surprising that this case had to go to the Supreme Court. Indeed, foreshadowing of today’s ruling, the majority of the Justices expressed their skepticism of the law during oral arguments in March.
So what makes this case so important? Why should Christians care about what pro-life pregnancy centers in California are or are not required to say? A little background might be helpful.
The Freedom to Dissent
Since 1993, NIFLA has supported pro-life centers and medical clinics across the United States. This ranges from education and training to what they are most widely known for – offering legal counsel and defending pro-life centers from becoming abortion referral agencies. These centers provide pregnant women with free or low-cost services while encouraging them to not have abortions.
The current conflict began in October 2015, when the state of California passed the Reproductive FACT Act. This law requires every crisis pregnancy center to provide notifications that their clients could receive “prenatal care and abortion for eligible women” at state and other facilities. In essence, pro-life pregnancy centers need to notify anyone they counsel where they can receive an abortion.
In order to enforce the law, the Reproductive FACT Act empowers state prosecutors to bring charges against any “covered facilities that fail to comply with these requirements.” For pro-life pregnancy centers, the choice was now between either violating their conscience or risking prosecution.
Believing the law violated both their freedom of expression and religion, several pregnancy centers sued the state of California. Despite initially losing in the Ninth Circuit, the centers appealed to the Supreme Court.
Those who defend the law charge that pro-life counselling centers frequently mislead women about their medical qualifications and options. The National Women’s Law Center argues that these centers “use deceptive practices to lure women who have decided to have an abortion into their centers.” In the opinion of pro-choice advocates, these centers trick women into not having abortions either by not telling them about abortions or by not disclosing that they are counselors and not medical professionals.
One of the politicians behind the law, state representative Autumn Burke, recounted to NPR that her attention was drawn to the issue because of false information she received from an encounter with pro-choice protestors. Burke went on to suggest that the law was not as invasive as its critics suggest, countering that notifications were analogous to “Wash Your Hands” signs in bathrooms by the health department.