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In an effort to make sure women know low-cost abortions are available, California required crisis pregnancy centers to inform clients of that fact. On Tuesday, the U.S. Supreme Court heard arguments to decide if the required announcements violate the free speech of center staff.
Forced Speech ≠ Free Speech
Hopefully, we all know that the First Amendment guarantees our right to speak freely without sanction from the government. A lesser talked about component of free speech is the right not to speak. Compelled speech is an affront to our precious liberties and generally prohibited as a First Amendment violation. California is accused of unlawfully mandating compelled speech by abortion opponents.
Crisis pregnancy centers are, for those vehemently opposed to abortion, a last chance to stop women from undergoing the procedure. It’s a place to stop before terminating a pregnancy to hear about alternatives including adoption. If you are a pro-choice activist, you might consider the center as engaging in fraudulent attempts to trick women into thinking they are entering a facility where they may get an abortion, but which performs no abortions and counsel’s women not to abort 100% of the time.
California took the latter view and was sued for it. From the National Institute of Family and Life Advocates (NIFLA) petition to the Supreme Court:
The State of California enacted a law called the “Reproductive FACT Act.” The State admits its purpose is targeting “crisis pregnancy centers” based on their viewpoint that “discourag[es]” abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low-cost abortions. The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise.
May California legally require these centers, erected with the sole purpose of preventing women from choosing to abort, to distribute information antithetical to their mission? So far, the answer has been yes, as NIFLA has not been successful in the lower courts.
Scrutiny Applied = Likelihood of Success
That is because those lower courts applied a lower level of scrutiny to the case, rather than granting as robust protections as, for instance, political speech. By classifying the notices as “professional speech,” those courts have claimed “Intermediate Scrutiny” as the appropriate standard to judge the mandate. Intermediate scrutiny requires a law or regulation further an important government interest by means that are substantially related to that interest.
This burden is much easier for the state of California to meet than “Strict Scrutiny,” which NIFLA argues they should apply. Under the strict scrutiny test, legislation to be valid must further a “compelling governmental interest,” and be narrowly tailored to achieve that interest. Practically speaking, when strict scrutiny is applied, the law or regulation challenged rarely is upheld.
The Supreme Court will have to decide what level of scrutiny to apply here, and that will guide their ruling. Perhaps the justices will further clarify what “professional speech” is, as the classification is anything but well-defined. They could of course simply grant all speech vigorous protection from governments by granting full First Amendment protection to all speech, but I wouldn’t hold my breath. The distinct levels of scrutiny system is a legacy of the New Deal court, which compromised its judgment for the sake of political expediency.
For a fascinating documentary about a crisis pregnancy center and an abortion clinic located directly across the street from one another, check out “12th & Delaware.”