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US Supreme Court strikes down law forcing pregnancy centers to promote abortion

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WASHINGTON, D.C., June 26, 2018 (LifeSiteNews) – The United States Supreme Court ruled 5-4 on Tuesday that California cannot force pro-life pregnancy centers in the state to advertise abortions.

National Institute of Family and Life Advocates v. Becerra concerned a 2015 law forcing pregnancy centers to provide written information advertising how to obtain abortions in the state at taxpayer expense, and requiring those without medical licenses to post disclaimers that they do not offer medical services. The National Institution of Family and Life Advocates (NIFLA) represented nearly 1,500 pro-life pregnancy centers opposed to the law.

California argued that the law was necessary to prevent “deceptive advertising” by pregnancy centers, echoing a false claim commonly leveled at pregnancy centers across the country by abortion advocates. Pro-lifers responded by calling the requirements “compelled speech” that violated the First Amendment, and which would have dramatic ramifications for free speech and religious liberty if they were allowed to stand.

In a majority opinion written by Justice Clarence Thomas, the court struck down the law as a violation of the First Amendment. Thomas rejected California’s argument that “professional speech” was a separate category from that covered in the Bill of Rights, noting that “[s]peech is not unprotected merely because it is uttered by ‘professionals.’”

“As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information,’” Thomas continued, noting that “[t]hroughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities.”

Thomas also rejected the argument that the requirement was medically necessary, and observed that it singled out pregnancy centers without applying to other facilities that offer similar services.

“The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed,” he wrote. “If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities [...] are not required to provide the licensed notice.”

Lila Rose, founder and president of national pro-life organization Live Action, praised the court for striking down what she called an "unjust law."

“Planned Parenthood and pro-abortion politicians in California manufactured this law specifically to target pro-life pregnancy centers. This unjust law was one of the worst offenses against First Amendment rights we’ve seen and shows the illegal lengths the abortion industry and its political allies are willing to go to suppress the pro-life viewpoint and promote the killing of children in the womb. We applaud the Supreme Court for upholding the free speech rights of these centers," she said.

“Pro-life pregnancy centers are doing some of the most important work in our communities today. They are providing advocacy, education, baby supplies, parenting classes, and maternity care to women in need. In addition to helping women during pregnancy, they often provide support long after the baby is born," she continued. 

“Abortion facilities like Planned Parenthood already use millions of dollars from taxpayers to promote their abortion business. No one should be forced to provide free advertising for the abortion industry – least of all pro-life pregnancy centers who are working to promote life, not destroy it,” she added.

Oral arguments in the case took place in March, and can be listened to here and read here. Alliance Defending Freedom CEO Michael Farris served as NIFLA’s lead attorney before the court, and pro-lifers widely interpreted the justices’ questioning as a sign they would ultimately uphold the pregnancy centers’ speech rights.

SCOTUSblog’s Amy Howe interpreted Justices Elena Kagan and Anthony Kennedy’s questions as skeptical of the California law, despite their records of supporting abortion itself. Kagan suggested the state had “gerrymandered” the law’s exceptions to ensure it targeted only pregnancy centers, while Kennedy was concerned the disclaimer mandates constituted an “undue burden.”

Further reinforcing the sense that California had overplayed their hand was a brief by Institute for Justice attorneys Robert McNamara and Paul Sherman. The two support abortion but nevertheless sided with NIFLA, arguing that if allowed to stand, the law would enshrine a distinction between “professional” and “private speech” that would empower governments to “crack down on everything from everyday advice about healthy eating to private citizens’ testimony at public city-council hearings.”

Ultimately, the decision fell along predictable ideological lines. Thomas was joined by John Roberts, Anthony Kennedy, Samuel Alito, and Neil Gorsuch. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined a dissenting opinion penned by Justice Stephen Breyer

“In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs,” Alliance Defending Freedom head Michael Farris said. “Tolerance and respect for good-faith differences of opinion are essential in a diverse society like ours. They enable us to peacefully coexist with one another. If we want to have freedom for ourselves, we have to extend it to others.”

The ruling is likely to have significant ramifications for similar laws in Hawaii and Illinois.

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