Justices Side with Free Speech Over Abortion Rights

A U.S. Supreme Court decision June 26 struck down a California law that coerced pregnancy care centers into providing free advertising for abortion centers.

Justices ruled 5-4 in National Institute of Family Life Advocates v. Becerra (NIFLA) that pregnancy care centers aren’t subject to government-compelled speech promoting abortion.

The Supreme Court reversed the judgment of the 9th Circuit Court of Appeals and remanded the case for further proceedings.

NIFLA sued to protest 2015 California legislation that specifically targeted prolife pregnancy centers, forcing them to offer free advertising for the abortion industry. The law — the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act — required licensed medical centers that give free, prolife help to pregnant women to also post a disclosure declaring that California supplies free or low-cost abortions. The announcement required pregnancy care centers to list a phone number for a county office that referred women to Planned Parenthood and other abortionists.

Justice Clarence Thomas, writing the majority opinion, noted that the FACT Act’s strong-arming prolife centers to promote the very activity they adamantly oppose constitutes unduly burdened free speech.

“It imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest,” wrote Thomas, 70. “And it covers a curiously narrow subset of speakers: those that primarily provide pregnancy-related services.”

Chief Justice John Roberts and Justices Samuel Alito, Neal Gorsuch, and Anthony Kennedy joined the majority opinion.

Kennedy, 81, wrote a concurring opinion.

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression,” Kennedy wrote. “For here, the State requires primarily prolife pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”

The FACT Act demanded that pregnancy care clinics post notices for free abortions in the waiting room. The law required facilities in some counties to spell out the announcement in as many as 13 languages, including Armenian, Farsi, and Tagalog. At nonmedical facilities, the proclamations needed to be displayed prominently at the entrance and in the waiting area, on a sheet at least 8½-by-11 inches high, in 48-point type.

“Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Kennedy wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Alliance Defending Freedom (ADF) President Michael P. Farris argued on behalf of National Institute of Family and Life Advocates before the U.S. Supreme Court in March. 

“No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion,” Farris, 66, said after the ruling. “In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that, and that it must respect prolife beliefs.”

Kristen K. Waggoner, 45, served as co-counsel in the case. She is ADF senior vice president and the daughter of Assemblies of God minister Clint M. Behrends, superintendent of Cedar Park Christian Schools in Bothell, Washington.

CHRISTIAN FLORIST CASE

In a related religious-liberties ruling on June 25, the U.S. Supreme Court sent the case of florist Barronelle Stutzman back to the Washington Supreme Court. The high court vacated the state court’s ruling, and instructed the panel to reconsider the lawsuit of Arlene’s Flowers v. State of Washington in light of the June 4 U.S. Supreme Court decision  in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that 7-2 verdict, the Supreme Court cited the religious beliefs of Jack Phillips, determining that he couldn’t be forced to bake a gay wedding cake.

Stutzman, 73-year-old owner of Arlene’s Flowers in Richland, Washington, had been sued by two men after she declined to design custom floral arrangements celebrating their same-sex wedding. In February 2017, the Washington Supreme Court ruled that Stutzman violated state laws. She faced the loss of her livelihood as well as her home, because the Washington attorney general and American Civil Liberties Union sued not only her business but her personally. ADF petitioned the U.S. Supreme Court to hear the case, with Waggoner serving as lead counsel.

“The U.S. Supreme Court has rightfully asked the Washington Supreme Court to reconsider Barronelle’s case in light of the Masterpiece Cakeshop decision,” Waggoner says. “Barronelle, like Jack, serves all customers, but declines to create custom art that expresses messages or celebrates events in conflict with her deeply held religious beliefs.”