SCOTUS Ruled by ONE Vote Not to Make Pro-Lifers Abortion Salesmen. Here’s What That Means.
This morning I got one of the happiest press releases in recent years. It came from Students for Life of America. That group’s hard-charging president, Kristan Hawkins, praised the Supreme Court for its latest ruling. The court’s decision in NIFLA v. Becerra
put a halt to the abortion industry’s campaign forcing pro-life advocates to act as a sales team for abortion. Planned Parenthood and the abortion industry fought to destroy the free speech rights of pro-life individuals in California who daily work to help women choose life for their pre-born infants.
This effort shows the true hypocrisy of abortion advocates who didn’t respect the Constitutional rights of those who love women and their pre-born infants. Vocal support for abortion was the only choice they would accept. Or else. As the head of an organization with more than 1,200 chapters in all 50 states, I am celebrating this hard-won victory, protecting the rights of groups like mine that work in the public arena every day spreading a message offensive to groups like Planned Parenthood, a message of hope and a future. Women deserve love, support and assistance when pregnant, rather than a hard-sell for abortion.
So I decided to interview Ms. Hawkins about the decision and what it means.
What Did the Court Actually Say?
The Stream: The recent Supreme Court decision on whether pregnancy centers must refer for abortions. … Can you sum up the main argument of the majority opinion? What was the crucial argument?
The bottom line is that you can’t make pro-life people function as a sales team for abortion. The California government may not legislate away the free speech rights of pro-life individuals.
The majority found that the state of California appeared to be singling out pro-life advocates. And doing so based on their viewpoint, not for any reason that promoted state interests. A number of organizations worked on pregnancy, birth control, health-related topics. But pro-life pregnancy care centers were the targets of the law.
Justice Clarence Thomas wrote the majority opinion. He noted: “Such ‘[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.’” Thomas also noted that pro-abortion locations faced no such regulations. (They didn’t have to post signs or read from a state-authored script.) “Such speaker-based laws run the risk that ‘the State has left unburdened those speakers whose messages are in accord with its own views.’”
In fact, the regulations created a burden for pro-life organizations. Thomas wrote:
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. More likely, the ‘detail required’ by the unlicensed notice ‘effectively rules out’ the possibility of having such a billboard in the first place.
Justice Kennedy, in a concurring decision, talked about the dangers of “viewpoint discrimination.” He said: “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
Free Speech Vindicated, and More
Q: Is this a pro-life win, or just a free speech win?
Both. In the 5-4 decision, the Supreme Court reversed the impact of the law on pro-life advocates in California, which required abortion advocacy. The majority noted that by compelling speech you actually change speech. By forcing people to act against their consciences you violate their First Amendment rights.
Q: What was the logic the left offered for compelling speech by pro-lifers that recommended abortion?
Justice Breyer, in his dissent, made an interesting argument. He claimed that it’s acceptable to compel speech if you are “evenhanded” about it. That’s because the topic of abortion is medical in nature as well as religious and moral in tone. He wrote:
If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and ‘what is sauce for the goose is normally sauce for the gander.’”
However, he did not comment on why it was okay to compel people to speak against their values.
Why the Ruling Makes Sense
Q: What’s your response to that?
Justice Thomas answered that requiring doctors to talk about adoption when discussing abortion makes sense. People at abortion facilities are considering that medical procedure. They need to know their options. But women at pregnancy care centers are looking for life-affirming options. So advocating for abortion is not the goal or intent. Pregnancy Care Centers are staffed mostly with volunteers. They exist to offer women other choices, not abortion. Requiring people to act as a sales team for a service they don’t support or sell is a violation of free speech rights.
As I said in a recent op-ed at Fox News:
Should the government be able to force you to advocate for things you believe are harmful? Consider the outrage if vegetarian nutritionists were forced to extol the health benefits of beef or if breast-feeding advocates in the La Leche League had to recommend baby formula or if anti-war protestors had to mention Army recruitment. That kind of government interference in free speech would be seen as ridiculous if applied to such passions. But people opposed to abortion face such pressure now in California.…
Most of us have heard of a gag order, where a court orders someone to stay quiet, but new on the scene of speech lately are compelled speech orders, which require people to advocate for things despite their passionately held convictions. This Orwellian campaign puts the bully in bully pulpit, as it attempts to co-opt almost every pro-life conversation.
The Impact on the Front Lines
Q: What’s the practical impact of this decision? What bad consequences does it avoid, and what opportunities does it offer?
Practically, this prevents pro-abortion governmental bodies from coercing pro-life advocates to speak in favor of abortion. And this prevents governmental bodies from pushing the farce that a choice for life and a choice to end life are equal. It also ended the onerous requirement to post about things that were not being advocated.
As Thomas noted, the law “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” Pro-life people were the targets, and they won today.