The Supreme Court ruled that California may not force crisis pregnancy centers to give certain notices to their clients. The Court, in another 5-4 ruling, held California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act – also known as the Reproductive FACT Act likely violates the First Amendment.
A crisis pregnancy center is a type of anti-abortion clinic. They are established to counsel pregnant women against having an abortion and are typically run by pro-life Christians; they are also often designed to look and feel like places where a woman might be able to obtain an abortion, even though they do not offer abortions. Their supporters argue that they exist to offer women struggling with an unwanted pregnancy alternatives to abortion that involve bringing the baby to term. Detractors argue that the centers trick women into visiting them on false pretenses.
California’s government thought that they could simply force the crisis centers to tell people how to get abortions. No matter that they were set up to frustrate women’s’ attempts at abortion. The new state law required them to inform women about abortions via various methods and means. The pregnancy centers claimed this amounted to forced speech in violation of their First Amendment rights.
The centers requested a preliminary injunction against the state, preventing them from enforcing the law while they challenged its legitimacy. After losing that battle at the District Court, they appealed the preliminary injunction issue to the Ninth Circuit Court of Appeals and lost there as well. The Supreme Court reversed. Roberts, Thomas, Alito, Kennedy, and Gorsuch were in the majority, while Breyer wrote the dissent joined by Ginsburg, Sotomayor, and Kagan.
Justice Kennedy, often seen as the swing vote between the left and right ideological sides of the Supreme Court was not on the fence here. He wrote a passionate concurrence, taking the California government to task for their offenses. Here is Amy Howe from SCOTUSblog:
Kennedy warned that the FACT Act “is 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.” And Kennedy strongly rebuked what he described as the California legislature’s “congratulatory statement” that the FACT Act “was part of California’s legacy of ‘forward thinking.’” It “is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.”
Rather, Kennedy stressed, it “is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for generations to come.”
Such principled and eloquent a defense of liberty is a welcome presence in any ruling from the high court. That it calls out a significant threat to our precious free speech from Democrats who favor abortion on demand, makes Kennedy all the more laudable for having done so. Perhaps he’ll be shouted out of a restaurant this weekend.
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