The Supremes Will Decide
By John Stonestreet & G. Shane Morris
Another critical free speech case has made its way to the Supreme Court. I’ll explain why it matters—especially to pro-life advocates.
On November 13th, the Supreme Court agreed to hear a case that could potentially affect the work of crisis pregnancy centers across the country. It’s called National Institute of Family and Life Advocates v. Becerra.
The issue in the case is the constitutionality of California’s “Reproductive FACT Act.” “FACT” is an acronym which stands for “Freedom, Accountability, Comprehensive Care, and Transparency.”
The Act requires “unlicensed covered facilities” to “disseminate a notice to all clients . . . 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.”
Despite the neutral-sounding phrase “unlicensed covered facilities,” the Act was squarely aimed at only one kind of facility: pro-life pregnancy centers. This becomes obvious when you take into account what the Act has to say about, of all things, font sizes.
“Licensed centers,” i.e., Planned Parenthood clinics and similar facilities, must display the above-mentioned notice in 22-point font on standard-sized paper. Pregnancy care centers, on the other hand, have to use at least 48-point font. What’s more, they must also “include [the] disclaimer in all public advertisements in a font larger than the surrounding text.”
If that isn’t evidence enough, there’s the statements of the Act’s supporters. The Petition for Certiorari says that “The State of California admits that the purpose of the Reproductive FACT Act is to target the speech of pro-life centers…[U]nfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California,” which aim to discourage and prevent women from seeking abortions, and that often confuse [and] misinform women.”
As the petition also points out, “The legislative history [of the Act] contains no evidence that crisis pregnancy centers . . . actually misinform women.”
As National Review’s Alexandra DeSanctis rightly put it, “California lawmakers crafted this law specifically to target crisis-pregnancy centers because they dislike these centers and their pro-life speech.”
She quoted Steve Casey, an Alliance Defending Freedom-allied attorney, who compared the law to requiring “McDonald’s . . . to advertise that they don’t sell Whoppers,” or requiring Home Depot “to advertise that it doesn’t sell dresses or tennis shoes.”
Add abortion providers’ obvious financial incentive to undermine pregnancy-care centers, and “it is clear that the [Act] is, in essence, a government subsidy of abortion clinics by means of coerced advertising.”
Given all of this, the unconstitutionality should be obvious. Yet it wasn’t to the Ninth Circuit Court of Appeals, which upheld the California law. This despite the fact that federal judges in Maryland and elsewhere have overturned similar laws. And despite that, by the Ninth Circuit’s own admission, the California law was “content-based.”
The Ninth Circuit did so despite the long history of Supreme Court decisions that look askance on viewpoint-based discrimination and compelled speech. As the Petition points out, “the Court has emphasized that the First Amendment protects not only the right of a speaker to choose what to say, but also the right of the speaker to decide what not to say.”
As the Supreme Court has said, “[t]he First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys.”
That’s exactly what’s going on here. So I’m thankful that the Court has agreed to hear this appeal and hopeful it will rebuke California for its egregious violation of free speech.
And when it does, I’d love it if the Court would use a 48-point font to get its message across.
Editor’s note. This appeared at Breakpoint and is reposted with permission.