As a supporter of both free speech and free contraception, I may have two dogs in the fight that the Supreme Court recently agreed to settle. But I think one side is going to make the other wish he’d never gotten into the quarrel.
The case, National Institute of Family and Life Advocates v. Becerra, is a challenge to California’s Reproductive FACT Act. The law forces the state’s 200 or so pro-life crisis pregnancy centers to post notices about free or low-cost abortion and contraceptive services available elsewhere.
Maybe you’re thinking this is like making Neiman Marcus post notices that you could get a better deal on that skirt at T.J. Maxx.
It’s worse than that, though, because it’s forcing those who oppose abortion to say something they don’t believe. And though the court said it will not look at the free exercise of religion aspects of the case, the California law also forces abortion opponents to promote something they believe is morally wrong.
That is the issue in the famous same-sex wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued before the Supreme Court next month. The baker wasn’t disputing that he’s in business to provide pastries to anyone who likes sweets. Instead, he argued that he was being required to create a work in butter and sugar that in essence said, “Yay you, David and Charlie!”
The cake case has been making headlines for years. It may be this crisis pregnancy center case, though, that has the more sweeping impact at the intersection of two constitutionally-protected rights: freedom of speech and the right to privacy, which the court ruled in 1973 extends to the right to have an abortion.
The California legislature said its law aims to take on “intentionally deceptive advertising and counseling practices that often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The 9th Circuit decision upholding it reasoned that “California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally protected medical services like abortion.”
But does the case regulate health, or words?
Andrea Picciotti-Bayer, who co-wrote an amicus brief for abortion opponents in a companion suit against Baltimore, told me that most coverage of the case makes the mistake of “thinking this is a matter of a state regulating abortion, when no, this is a state regulating those who are talking about something other than abortion. This is about letting volunteers or low-paid staff help women who don’t want an abortion do that in peace.”
While I’m not positive how much a sign undermines the peace of anti-abortion clinics, it’s a stretch to think California really needs to conscript the help of those working for a nonprofit in the church basement to get the word out to pregnant women that subsidized abortion is an option. They’re also required to post signs that make clear when they aren’t licensed medical clinics, though the notion that women don’t know the difference between Planned Parenthood and those dispensing sonograms and diapers at St. Michael’s underestimates their clients.
Appeals courts have ruled both ways on such laws. But given the current makeup of the Supreme Court, it seems likely the majority of justices will rule that this California legislation is indeed an infringement of the First Amendment.
If they do, that will set the precedent for rolling back other laws that regulate what those counseling both for and against abortion can and cannot say.
In Planned Parenthood v. Casey, the Supreme Court said states could require doctors to provide truthful information to women seeking abortion. But given the durability of arguments over what constitutes truthful information, a ruling against California could also limit all kinds of red-state rules that force abortion providers to dole out messages they see as propaganda. That seems only fair.
This column originally appeared in USA Today.