Is it free if it’s required?
A few years ago a young woman in Carson City for a session of the Nevada Legislature—not a legislator—thought she might have been pregnant. The session ran for about five months, and she did not want to fly back to Las Vegas for a doctor’s appointment. She looked in a phone book for a clinic and found something called a crisis pregnancy center (CPC).
After going for a pregnancy test and having it come out negative, she told a friend that while she was there it was clear that “it was an anti-abortion place.” She worked out the rest of the legislative session and returned to Las Vegas.
The clinic visit gave her peace of mind. She was just as happy not to experience what she might have if the test had come out positive.
In a major free speech ruling, the U.S. Supreme Court on June 26 overturned a California law requiring crisis pregnancy clinics—created as an alternative to abortion—to post signs advertising abortion services, supposedly to aid low income patients. The court found “California could inform low-income women about its services without burdening a speaker with unwanted speech.”
The signs read, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), pre-natal care, and abortion for eligible women. To determine whether you qualify, contact the county social services at [phone number inserted].”
The ruling has become an issue between the candidates for Nevadas’ governorship. Republican Adam Laxalt signed onto a legal brief that supported overturning the California law. After the ruling was released, Laxalt visited a crisis pregnancy center in Clark County.
After Laxalt visited the CPC, Democrat Steve Sisolak tweeted, “Adam Laxalt’s anti-choice views are beyond the pale,” Sisolak wrote. “If his outspoken opposition to [Planned Parenthood] isn’t enough, his embrace of this shameful group is enough to demonstrate where he stands. As governor, I would protect access to women’s health care and a woman’s right to choose.”
Sisolak’s stance enabled the Las Vegas Review Journal to use the headline, “Sisolak, Democrats attack group for helping pregnant women.”
Justice Clarence Thomas wrote in the majority opinion, “As California conceded at oral argument, a billboard for an unlicensed facility that says ’Choose Life’ would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message.”
The California Legislature enacted the law requiring the signs in 2015 in a measure dubbed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency [FACT] Act. According to the Atlantic Monthly and other sources, legislators relied heavily on a report by the National Abortion Rights Action League (NARAL) in deciding to pass the law, which is a bit like asking a barber if you need a haircut. NARAL is a lobby group and its report on crisis pregnancy centers was full of emotionally loaded language—“CPCs are storefronts that use false and misleading advertising and the offer of free pregnancy tests or other services to lure women into their offices. Then their goal is to dissuade women from exercising their right to choose.”
There is no evidence that legislators investigated independently to confirm the claims in the 7,900-word report by the lobby organization. But even if it had, there were ways to remedy the alleged problem without breaching free speech. In addition, the lawmakers carefully limited where it would require the signs.
Thomas: “If California’s goal is to educate low-income women about the services it provides, then the licensed notice is wildly underinclusive. … California has nearly 1,000 community clinics—including federally designated community health centers, migrant health centers, rural health centers, and frontier health centers—that serv[e] more than 5.6 million patients … annually through over 17 million patient encounters. … But most of those clinics are excluded from the licensed notice requirement without explanation.”
The privileged status given to the NARAL report did not happen just in the California Legislature. The San Francisco city attorney has posted it on the office website, a forum that has not been awarded to any other lobbying organization.
Crisis pregnancy centers have been around since well before Roe vs. Wade, the ruling that made abortion legal and safe. As support for legal abortion grew in the 1960s, CPCs appeared first in Canada, then spread south. They tend not to be full-fledged clinics, providing mainly pregnancy tests and ultrasounds, and they may also provide non-medical services, including adoption assistance, financial aid and parenting advice. As in the case of the Carson City clinic, most of them tend to make clear where they stand on abortion. But if they do not, it’s not an indictable offense.
One leading Reno attorney drew our attention to a section of the syllabus in the ruling: “And [the court] has stressed the danger of content-based regulations in the fields of medicine and public health, where information can save lives. Such dangers are also present in the context of professional speech, where content-based regulation poses the same risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information. When the government polices the content of professional speech, it can fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”
Compelled speech, an obscure free speech issue, can include health warnings on products, children saluting the flag in school and adults signing loyalty oaths to have jobs, license plate sayings, and school dress requirements. The California legislators treated the required signs as providing medical “informed consent.”
The court ruled, “But the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”
Paradoxically, abortion providers in more than half the states are required to carry “informed consent” brochures concocted by anti-abortion legislators who say they are providing needed medical information, though some of those states have never implemented the law by prescribing the language to be carried in the printed matter. Abortion supporters have opposed those examples of compelled speech.
The vote in the case, National Institute of Family and Life Advocates v. Becerra, was by the now-familiar 5 to 4— Alito, Gorsuch, Kennedy, Roberts and Thomas on one side; Breyer, Ginsburg, Kagan and Sotomayor on the other. There was a time when Democratic-appointees would have joined the five, but such justices now rarely show the kind of freedom of expression concerns that motivated justices like Hugo Black, William O. Douglas and William Brennan.