Although I’ve been in the Supreme Court courtroom many times over the years, Tuesday’s oral argument in NIFLA v. Becerra, the pregnancy center forced speech case, was memorable for several reasons besides the miserable first-day-of-spring weather. (Our CEO Catherine Glenn Foster’s op-ed explaining the case and its importance to the critical life-giving work of pregnancy care centers is here.) Fortunately for free speech lovers, Justice Anthony Kennedy, considered the “swing vote” in many cases like this one, provided a couple of those memories and strongly signaled that he opposes the California law that’s at the center of the case.
Justice Ruth Bader Ginsburg opened the questioning by asking NIFLA advocate Michael Farris (CEO of Alliance Defending Freedom) whether the Supreme Court’s approval of mandatory medical disclosures by abortion doctors in Planned Parenthood v. Casey also covered California’s forced disclosures by pregnancy centers. Farris replied no, that since pregnancy centers don’t provide abortions, the forced signage doesn’t regulate a medical intervention. Justice Stephen Breyer took up this line of argument, saying “What’s sauce for the goose is sauce for the gander.” Since pro-life states often impose mandatory disclosures on abortionists, he argued, pro-choice states should be able to do so on pregnancy centers. Farris reiterated that the line Casey draws is the line of medical procedures, which may be regulated, but pregnancy centers don’t offer abortion procedures.
Several times, Justices questioned the advocates whether a pregnancy center that put up a billboard that simply said, “Choose Life,” would have to include the requisite disclaimers. Justice Anthony Kennedy posed the hypothetical to California’s attorney, Joshua Klein, who answered that it would. That seemed to settle it for Justice Kennedy. And the Solicitor General’s counsel, Jeffrey Wall, arguing as an amicus on behalf of the United States, backed up NIFLA’s position by arguing that there was no evidence the coerced signage was having its intended effect: “[I]t’s not helping the women who come into the clinic make an informed choice,” he said.
Perhaps sensing that the targeted nature of the law was evident, some of the Justices fell back on the argument that there was no factual record to know how the law was implemented in practice. Farris responded that the California law was gerrymandered against pregnancy center speech on its face, so no further factual record is necessary. Justice Elena Kagan seemed to agree; gerrymandering is “serious,” she said to Klein. And Justice Kennedy appeared to close the door on that approach when he declared (to general laughter), “So you want me to
have a remand for them to tell the court what a billboard is… because I don’t know that? There [are] a lot of things we don’t know, but I think we know what a billboard is.”
Although the abortion-favoring Justices (Justices Breyer, Ginsburg, Kagan and Sotomayor, notably) seemed to be casting about for a way to equate informed consent mandates for abortion providers with forced signage for pregnancy care centers, that effort ultimately fell flat. The danger of that position may have escaped them; any expansion of forced speech mandates against pregnancy centers would inevitably be used by pro-life states against abortion providers. Many observers came away believing that the result in this case may well be a narrow decision – perhaps joined by most members of the Court – simply holding that California has engaged in discrimination against the pregnancy centers’ pro-life viewpoint, virtually a death knell to the statute. That approach would be consistent with a raft of cases in recent years overturning errant free speech decisions of the Ninth Circuit Court of Appeals. (Recall that California is the state that made it illegal to post the age of a movie star on the Internet.)
All in all, as AUL’s Rachel Busick observes, NIFLA v. Becerra may become more than another milepost on the road to free speech, as important as that it. By discussing the life-saving work done by the 70-plus pregnancy help centers in California, the Justices have shone welcomed light on a critical aspect of the pro-life movement.
Steven H. Aden, Esq.
Chief Legal Officer & General Counsel