Dept. of Justice, Members of Congress weigh in on behalf of pregnancy help centers

By Dave Andrusko

The mounting list of amicus (“friend of the court”) briefs filed with the United Stated Supreme Court on behalf of pro-life pregnancy centers has grown to include amici from the Trump administration’s Department of Justice and from 148 members of the House of Representatives and 16 Senators.

The High Court is set to hold oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra later this spring.

At issue is the so-called “Reproductive FACT Act,” passed on a strict party line vote in California in 2015. The law forces “privately funded pro-life pregnancy centers to promote taxpayer-funded abortions, threatening crippling fines for noncompliance,” according to Pregnancy Help News. The law is a blatant infringement of First Amendment freedoms of speech and free exercise of religion.

As Jay Hobbs explained

Targeting over 100 state-licensed medical facilities that offer free ultrasounds—none of which receive any government funding—California’s law orders the pro-life organizations to prominently post and distribute the following notice. “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 [insert the telephone number].” The penalty for noncompliance is $1,000 for a first-time offense, and $500 for subsequent offenses.

Meanwhile, pregnancy centers that do not offer free medical services such as ultrasounds must post the following disclaimer “conspicuously at the entrance to the facility” “in no less than 48-point type”: “This 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 provision of services.”

Similar laws have been struck down in New York City, Austin (Texas), and Montgomery County (Maryland). Most recently, the 6th Circuit U.S. Court of Appeals unanimously affirmed a ruling by U.S. District Judge Marvin J. Garbis that a Baltimore ordinance targeting pregnancy care center violates the First Amendment.

In its 44-page amicus brief, the Department of Justice forcefully maintains that the required notice “does not describe petitioners’ own services at all. Instead, it effectively conscripts licensed clinics like petitioners into advertising state-supported services, including abortion, that they do not provide and that they strongly oppose.” The brief goes onto argue

Petitioners have a very strong First Amendment interest in refraining from speaking. Opposition to abortion is at the core of petitioners’ beliefs and a basic purpose of their institutional existence. … The Licensed Notice requires petitioners effectively to advertise—by name—a procedure they fundamentally oppose. Petitioners are compelled to disclose the availability of state-funded abortion services and instruct clients as to how to obtain those services— which distorts petitioners’ communications with clients in a manner that petitioners contend violates their most deeply held beliefs and undermines their organizations’ purposes.

The 20-page brief submitted by members of Congress concludes

The effects of California’s mandatory speech requirements on pro-life centers’ protected speech are “impermissible.” Because the law targets only centers that oppose abortion, it “penalizes the expression of particular points of view and forces speakers to alter their speech to conform with an agenda they do not set,” and one they specifically exist to oppose. Although “[m]andating speech that a speaker would not otherwise make” always “alters the content of the speech,” that is especially the case here. Not only have these pro-life centers chosen “not [to] otherwise make” abortion referrals, they exist to communicate precisely the opposite viewpoint and offer life-affirming options to women. To promote a mother’s option to get an abortion would defeat these centers’ core message. Moreover, many pro-life centers’ deeply held moral convictions and religious beliefs would be violated by forced involvement in abortion referrals.

[Internal cites were omitted for clarity.]

Kudos to the Department of Justice and to the 144 members of Congress.

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