Court down to last days to decide law violating pregnancy center’s First Amendment rights

By Dave Andrusko

Quick and important reminder. NRLC’s annual convention begins in three days, running June 28-30. You can still pay the “early” registration fee if you register by noon on Tuesday. After that, online registration will close but you will still be able to register as a walk in, any day of the convention, at the Sheraton Hotel in Overland Park.

All speaker and schedule information is available by visiting nrlconvention.com.

As is always the case as the Supreme Court approaches the end of its turn, important cases remain to be resolved. For pro-lifers, that is National Institute of Family and Life Advocates v. Becerra.

As anyone who has read about, let alone attended oral arguments, there is no foolproof way of gauging from the justices’ questions what they are thinking. For example, “hostile” questions may be a fishing expedition to find the best answer to give to colleagues who really are hostile to someone’s argument.

That being said, the justices, from the least receptive to anything resembling a pro-life initiative, to the more sympathetic, found California’s so-called “Reproductive FACT Act” a stretch. The law requires both pregnancy help centers that offer medical services and those who don’t to “act as a ventriloquist’s dummy for a government message”—abortion—as one pro-life attorney phrased it.

If they offer medical services, they must post signage that the state offers free abortions. If they don’t, they must post signage that announces, “This facility is not licensed as a medical facility by the state of California.”

The justification for the Reproductive FACT Act, passed on strictly party-line votes in the Democrat-controlled California statehouse and signed into law by Gov. Jerry Brown, is that pregnancy centers were allegedly misleading women. As became painfully clear at oral arguments, there is precious little evidence to support the allegation.

Nearly all the justices found ample reason to consider the question whether the requirements constituted an “undue burden.” Pro-abortion NPR reporter Nina Totenberg wrote

Justice Anthony Kennedy, potentially the swing justice, said the law in certain circumstances would seem to impose an undue burden. He cited a hypothetical example of a billboard in Los Angeles with the words “Choose Life,” paid for by an anti-abortion clinic. Under California’s law, would the ad have to include, as the statute says, the words about the clinic being unlicensed, in large font and in multiple languages?

Yes, it would, said the lawyer for the state. For Kennedy, that seemed to be too much. That, he seemed to say, ended the case for him — the statute is unconstitutional.

Several of the strongest critiques mirrored lower court judges’ analyses. For example, it seems odd (to be polite) not to consider the obvious–that the state of California has abundant resources to get its message (about free or low-cost) abortions to the public.

In 2017 Riverside Superior Court Justice Gloria C. Trask raised the issue when she granted a temporary injunction for the Scharpen Foundation’s mobile ultrasound unit on that grounds the law violated California’s “freedom of mind” guarantee as laid out in the state’s 1849 Declaration of Rights.

“The State can deliver its message without infringing upon anyone’s liberty,” Trask wrote.

“It may purchase television advertisements as it does to encourage Californians to sign up for Covered California or to conserve water. It may purchase billboard space and post its message directly in front of Scharpen Foundation’s clinic.”

One of the amusing ironies of Judge Trask’s opinion is she writes about how the state claims it needs to compel the Scharpen Foundation to “supplement” its own efforts to “educate women regarding the availability of low cost public contraceptive, prenatal, and abortion services.” In fact

“While the educational steps taken by the state are described as ‘myriad’ by the Attorney General, they are actually quite minimal. And while the evidence is voluminous, it describes very little. And even those few entities making an effort to inform women of the availability of these services appear nearly as loath as the Scharpen Foundation to specifically use or post the word ‘abortion.’”

A decision in National Institute of Family and Life Advocates v. Becerra could well come down Wednesday.