The case should be about fair and easy access to legal abortion and truth in advertising. But CPC lawyers want to turn this into a fight for free speech—and that's bad news for abortion rights.
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On March 20 the Supreme Court will hear its third abortion case in just four years: NIFLA v. Becerra. The case should be about best medical practices, truth in advertising, and the ability to access legal abortion easily and without insurmountable roadblocks. Instead, it likely will turn into a battle over the limits of the First Amendment, and sadly, in that frame, pregnant people almost always lose.
In National Institute of Family and Life Advocates [NIFLA] v. Becerra, crisis pregnancy centers (CPCs) are suing the state of California, claiming that the California Reproductive FACT Act’s requirements for their centers are a violation of their free-speech rights. According to the FACT Act, California “require a licensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that California has public programs that provide immediate free or low-cost access to comprehensive family-planning services, prenatal care, and abortion, for eligible women. The bill would also require an unlicensed covered facility, as defined, to disseminate a notice to all clients, as specified, stating, among other things, that the facility is not licensed as a medical facility by the State of California.”
California calls the requirements necessary to remove potential time delays from obtaining an abortion and ensure those seeking an abortion are aware of all of their rights. Pregnancy center advocates, on the other hand, are offended by the government’s attempt to force “compelled” speech on these organizations, violating their freedom by making them “advertise” for abortion agencies. “Compelled speech strikes at the very heart of constitutionally protected liberties, which are most at risk when speakers are targeted by government officials who disagree with their thoughts and ideas,” claims Alliance Defending Freedom president, CEO, and general counsel Michael Farris, who represents the CPCs. “Targeting people who disagree with the government is exactly what the California law does.”
When it comes to opposing government-compelled speech, however, abortion opponents are fine with picking and choosing their circumstances. According to Guttmacher Institute 29 states have official state health department created “counseling” materials that must be provided to a patient prior to an abortion, with those materials ranging from vaguely coercive to outright lies. Two thirds of those states erroneously claim abortion can lead to future fertility issues, five claim abortion causes breast cancer, eight claim abortion will cause depression or other emotionally negative responses, 13 repeat the anti-abortion claim that a fetus feels pain by at least 20 weeks gestation, and six demand a patient be told “personhood” begins at the moment of conception. Anti-abortion lawmakers and activists are so invested in repeating these lies and ensuring that patients believe them that they compel physicians’ speech with pre-approved, written scripts. And in South Dakota, lawmakers are so incensed that the practitioners are adding “politicians in the state of North Dakota are requiring us to tell you,” and adding that there is no truth to their statements, that the state just approved a bill that will make abortion patients visit a CPC before they can even begin their termination.
NIFLA and their allies claim that it is unconscionable to “compel” their own medical clinics to tell those who enter their doors that the state has free and available options for ending a pregnancy. Yet other states compel abortion clinics to offer lists of centers offering “free ultrasounds” for patients to visit—even though those centers are almost entirely anti-abortion sites hoping to talk the person out of ending the pregnancy (and those outside ultrasounds couldn’t be used as a mandatory ultrasound, regardless). Many require doctors to inform patients that the person who impregnated them has a financial responsibility to support any child brought to term. And some, like Missouri, also mandate that patients be told, “There are public and private agencies willing and able to help you carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place him or her for adoption. The state of Missouri encourages you to contact those agencies before making a final decision about abortion.”
Obviously, the NIFLA backers have no real qualms about government-compelled speech—at least, not when that speech is being performed as a means of coercing a pregnant person into giving birth. They are just circumstantial when it comes to their second complaint: requiring CPCs without actual medical staff to post signs stating that they are not a medical facility and that they do not perform or refer for abortions.
Mandated signage is another area where anti-abortion lawmakers are happy to compel businesses—at least, they are if abortions are being performed. According to Guttmacher’s research, Arizona, Arkansas, Kansas, Louisiana, North Dakota, Ohio, Oklahoma, and Tennessee all require clinics to post signs regarding coerced abortions being illegal—even going as far as to mandate the size of the font being used. If non-medical CPCs say being compelled to post a sign at their entrance stating they are not medical centers and do not perform abortions is unnecessary, why must clinics post signs about coercive abortion laws when their pre-abortion counseling specifically requires them to look for signs of coercion?
But abortion opponents don’t see any of this as the ripe hypocrisy it obviously is. Instead, they will claim in front of the Supreme Court that the two situations are vastly different. When it comes to coercing people out of abortions, the state is allowed to compel speech because it is in the best interest of “protecting and promoting fetal life.” Because California’s law isn’t doing that, the state no longer has a justifiable reason to override free speech, making it completely acceptable and not at all a double standard for CPCs to challenge that law.
And that is where the court will be forced to step in and make the final decision, one that could be bad news for abortion rights supporters. Like McCullen v. Coakley, which was a 9 to 0 decision ruling that the state of Massachusetts could not force abortion protesters to stay at least 35 feet away from the entrance of an abortion clinic, this now Scalia-free but Gorsuch-sitting SCOTUS could very well agree that this case is about freedom of speech, even if that speech is being used as a tool to trick, mislead, and coerce a pregnant person from obtaining a legal abortion.
This isn’t a free-speech case, however, and there are people who will be harmed even outside of future abortion patients if NIFLA wins. As Amy G. Bryant and Jonas J. Swartz report in The American Medical Association’s Journal of Ethics, crisis pregnancy centers aren’t just benign agencies that help someone who is conflicted over their abortion choice find a path to bring their pregnancy to term. “Because the religious ideology of these centers’ owners and employees takes priority over the health and well-being of the women seeking care at these centers, women do not receive comprehensive, accurate, evidence-based clinical information about all available options,” they write. “Although crisis pregnancy centers enjoy First Amendment rights protections, their propagation of misinformation should be regarded as an ethical violation that undermines women’s health.”
If SCOTUS claims that free speech includes the right to physically and emotionally harm patients, it doesn’t just hurt abortion access and reproductive rights, it harms the medical profession, too. Without an explicit and utterly reliable distinction between medical agencies and politically or religiously motivated organizations, patients will never be able to completely trust the advice of their medical practitioners. That is an outcome that abortion opponents themselves may even come to regret, especially if they intend to rely on an argument of “protect[ing] the integrity of the medical profession,” as a reason to uphold state’s D&E abortion bans in court.
Then again, maybe it won’t matter at all, and they will circumstantially pick and choose when they want to “protect doctors” just like they are choosing now when they believe in “protecting free speech.” After all, to them, every hypocrisy can be justified if it comes in the pursuit of saving the preborn.
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