By state law, the state of California is now forcing pregnancy-support centers, whose sole purpose for existence is to offer alternatives to abortion, to “conspicuously” notify pregnant women of where they can receive abortions. The centers have objected that the law violates the Free Speech Clause of the First Amendment by compelling them to engage in speech that they have not chosen, do not agree with, and find morally repugnant. The United States Supreme Court has scheduled oral argument in the case, National Institute of Family and Life Advocates et. al. v. Becerra, Attorney General of the state of California, on March 20.
The relevant Supreme Court cases and constitutional issues of free speech are largely the same as in the Masterpiece Cake case argued before the Supreme Court in December. In that case, a bake shop owner is fighting the state of Colorado’s attempt to force him to bake a cake for a same-sex marriage. Thus, by the beginning of July of this year, the Supreme Court will deliver far-reaching decisions about the freedom of Americans to speak and not to speak.
Mandated abortion notices at anti-abortion centers
Under Medi-Cal, its state health plan, California includes abortions among the medical procedures it funds. In 2015, the state legislature enacted the California Reproductive Fact Act requiring anti-abortion pregnancy-support centers to “conspicuously” post notices about the availability of abortion elsewhere. For such centers that are licensed by the state as medical facilities, the notices are to be posted “in no less than 22 point type,” or handed out, and must state:
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number].
When the phone number is called, referrals by social services are made not only to public abortion clinics but also to private clinics such as Planned Parenthood. Every licensed center that offers ultrasounds, sonograms, pregnancy testing, and pre-natal care is covered. The Act does not include a requirement that a Planned Parenthood and related clinics post a notice of places to go for alternatives to abortion.
The plaintiffs are 130 centers, licensed and unlicensed under California law, who, like similar centers in every state, were created to provide alternatives to abortion. The heart of their suit is their contention that they have a constitutional right under the Free Speech Clause of the First Amendment not to be compelled to speak by posting notices at their centers about something that they exist to oppose.
The state of California’s main argument is that the mandated notice is an example of the kind of “professional speech” that can be regulated by public law. The centers point out that even the Ninth Circuit Court of Appeals, which ruled against them on this issue, and the state of California itself both concede the Supreme Court has never defined “professional speech.” Thus, California is endeavoring to create a new First Amendment doctrine. The Ninth Circuit said that the notice was “reasonable in in the context of regulating the practice of medicine.”
In order to argue that government may regulate speech in medical or professional contexts, California cites the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. That case dealt with several issues concerning abortion, but the issue now ironically relevant in Becerra concerns the provision of the Pennsylvania state law that required abortionists to disclose information about the nature of abortion, the gestational stage of the baby, and health risks to the mother. This provision was ruled constitutional by the Supreme Court, and in so ruling, the Court rejected a First Amendment claim by abortionists that the requirement denied their First Amendment rights. The Court said that since medicine is licensed and regulated by the states, the state could impose such a requirement.
The centers counter California’s use of the Casey case by arguing that Casey’s state-required advice to women seeking abortions was “informed consent” about a major medical procedure, whereas the California law requires them to offer “information” that is “unrelated to surgeries or any medical services” they perform. They argue that the “informed consent” required of abortionists is no different than the same informed consent required for any major medical procedure. The difference, they say, is that such consent does not involve advocacy, whereas the first purpose of the California law is advocacy for abortion and that such advocacy is oppositional to their own viewpoint.
And, thus, they argue, the right to advocate involving free speech and freedom of thought is supreme in this case. The state of California has acted against them for viewpoint discrimination and is requiring compelled speech of them. The centers point out that the state of Vermont in Sorrell v. IMS Health (2011) maintained that the state’s requirement concerning doctors’ prescription records was permissible regulation of commercial speech, but the Supreme Court struck the Vermont law down, 6-3, as “content and speaker based.”
Citing the decision of the Supreme Court in Hurley v. Irish-Amerc. Gay, Lesb. (1995), a case that the state of California nowhere mentions, in which a homosexual group sought to force its way into the Boston St. Patrick’s Day parade, the center points out that the Supreme Court unanimously ruled that the First Amendment protects the right to choose “what not to say.” They also profess a major reliance on Riley v. National Fed. Blind (1988), in which the Supreme Court struck down a state law that overregulated charitable soliciting as a “content based regulation of speech” that unconstitutionally mandated speech “that a speaker would not otherwise make.”
In the heart of its case, California argues that since the notice does not require “a statement or endorsement of belief,” it is not like the Supreme Court’s “compelled speech” cases. The state thus endeavors to distinguish the original case in this line, West Virginia v. Barnette (1943) in which the Court completely reversed itself from Minerville v. Gobitis only three years earlier and held that a school district could not force Jehovah’s Witness children to pledge allegiance to the flag. Barnette is “inapposite,” California contends, because it required a “compelled recitation,” unlike the present case which requires only the posting of a notice. The state goes on to attempt to distinguish Wooley v. Maynard (1977), in which the Court upheld the right of a Jehovah’s Witness to cover up the “or Die” part of the New Hampshire motto “Live Free or Die” displayed on New Hampshire license plates. There, the state had tried to enforce a “display” of an “ideological message,” California says.
Thus, California attempts to draw a distinction among “reciting,” “displaying,” and the mandated “posting” of notices in this case. The centers argue that the Barnette Court did not engage “in any sort of balancing test,” but emphatically declared that the use of “compelled speech” to achieve the state of West Virginia’s purpose of promoting national unity by means of the recitation of the pledge of allegiance “was beyond the power of government.” Concerning Wooley, the centers argue that choosing what to say and what not to say are two sides of the same choice, and quoting Wooley directly, “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”
In addition, the centers rely heavily on Miami v. Tornillo (1974), a case in which the Supreme Court unanimously invalidated a Florida statute requiring newspapers to publish a right of rebuttal for political candidates, which the Court labeled a “government enforced right of access” regarding freedom of the press. In its brief, California gives Miami only a perfunctory mention without a description of the facts. The centers quote Pacific Gas v. Public Utilities Commission (1986), in which the Court invalidated a public utility commission requirement that a private utility company publish other viewpoints about energy consumption on its bill sent to customers. The Supreme Court in that case said that the requirement “impermissibly requires appellant to associate with speech with which appellant may disagree.” And the Pacific Gas Court referred to the “compelled speech” of its Miami decision.
Likewise, in Agency for Intl. Dev. v. Alliance (2013), the Supreme Court held that federal grants to combat AIDS could not be tied to a mandate that non-governmental recipient organizations adopt an explicit policy opposing prostitution and sex trafficking because such a mandate requires the recipient organizations “to profess a specific belief.” The Court said that the federal law in question could have required that no federal funds be used to promote prostitution or sex trafficking, but that it was unconstitutional to require the recipient organizations to adopt that policy as an organizational principle. The Court,” quoting its decision in Rumsfeld v. Forum (2006), ruled that it is “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’’ In Rumsfeld, the Court, citing both Barnette and Wooley, ruled that a federal law requiring colleges that receive federal funds to allow military recruiters on campus did not restrict or require the content of speech. California, by constrast, cites Rumsfeld in support of its position.
In Reed v. Town of Gilbert (2015), the Supreme Court unanimously held that an Arizona town ordinance that regulated “temporary directional signs” was unconstitutional because it was a law that “imposes content-based restrictions on speech… [which] can stand only if they survive strict scrutiny.” The ordinance was targeted at the specific signs set out by a specific church.
The centers cite RAV v. St. Paul (1992) for their argument that the state of California had numerous other opportunities and means to promote abortion without invading the centers themselves. In RAV, the Supreme Court unanimously invalidated as “viewpoint-based discrimination” the city of St. Paul’s criminal ordinance that banned hate symbols. A teenager had burned a cross on the lawn of a black family. The Court said that it would not uphold a prosecution based on viewpoint discrimination when several other criminal laws were available with which to prosecute the offenders.
The state of California cites Turner Broad. System v. F.C.C. (1994), a divisive 5-4 case, in which the Supreme Court upheld the “must-carry” provision of an act of Congress requiring national cable television companies to carry some local broadcasting. The Court ruled that the provision was access-based, not content-based. The four dissenters said it was content based because it favored localism and diverse programming. The centers argue that the “must carry” provision did not involve the actual content of local broadcasting and point out that the Turner Court, although upholding the “must carry” provision, also made the strong statement that “[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to… rigorous scrutiny.”
In its ruling against the centers, the Ninth Circuit conceded that the speech of the centers was not the kind of “commercial speech” that the law has recognized as subject to government regulation. In Va. Bd. of Pharmacy v. Va. Citizens Consumer Council (1976), the Supreme Court defined commercial speech as speech “that does no more than propose a commercial transaction.” And in Cent. Hudson Gas v. Pub. Serv. Commn. (1980), the Court said that commercial speech is “expression related solely to the economic interests of the speaker and its audience.” The centers, of course, are non-profit.
The Act forces unlicensed centers that offer ultrasound, sonography, pregnancy testing, and counseling, to “conspicuously” post “in no less than 48-point type” this disclaimer:
The facility is not licensed as a medical facility by the state of California and has no licensed medical provider who provides or directly supervises the provisions of services.
That is, there is no language about abortion. The Act only covers facilities “whose primary purpose is providing pregnancy-related services.” The centers argue that the mandated notice “drowns out” and “crowds out” their message and purpose by requiring them “to begin their conversation with women by saying what they are not and do not claim to be.” They say that the purpose is to “discredit” them immediately upon a woman’s entry.
The state of California counters that “members of the public may assume that a facility whose name, advertising, appearance, and services resemble corresponding aspects of licensed medical providers is regulated under these provisions…. Disclosure of such an entity’s unlicensed status ensures that women who seek state-licensed, professional medical care are not unwittingly diverted to facilities unable to provide it, and thus helps “women to seek the care they wish to obtain.” The state cites no findings or cases in which women’s “assumptions” have been undermined or in which they have been burdened, deceived, or victimized by the work of such unlicensed pregnancy centers.
By a standard of common sense and everyday experience, California is compelling the speech of the pregnancy-support centers. The state is compelling the centers to post or hand out information about abortion that they not only do not choose or want to hand out but also morally oppose in the most profound way. Although stopping short of requiring oral statements by the center’s workers (the next step?), the intent of the law is perfectly clear: The state’s message must be delivered to the women who enter the centers.
As for the specific case that involves the same level of moral conviction, the Hurley case, where the gay and lesbian group sought to proclaim their message in the St. Patricks’ day parade, is probably the closest. The unanimous Hurley Court said that the parade organizers had the right to choose “what not to say.” And the same principle, in less gravely serious factual circumstances, has been enunciated by the Supreme Court in eight of the other cases discussed above. The Supreme Court has ruled that the First Amendment protects speech about the medicine-prescribing habits of doctors (Sorrell), charitable solicitations (Riley), state mottos on license plates (Wooley), the right of newspapers to have their own views of political candidates (Miami), the right of energy corporations not to have to publish the views of opponents (Pacific Gas), setting out temporary signs about the location of a church (Reed), and even the right of an organization to have its own policies about prostitution and sex trafficking (Agency for Intl. Dev.), as well as the “speech” component of burning crosses (RAV).
California’s manipulation of words and concepts, “professional speech… limited, neutral disclosure requirement… enables women to secure the services they deem appropriate… does not require a statement or endorsement of belief… the delivery of government services in health care” are all deployed to cover up the nakedly certain purpose and effect of the law: compulsion. The state of California singled out the speech of pregnancy support centers as speech to limit and control.
We shall soon see what the Supreme Court has to say, in this and in the Masterpiece Cake case, about what kind of speech is, to quote Barnette, “beyond the power of government” to control.
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