There are excellent reasons to oppose state involvement with religion, but originalist arguments are not among them.
With a clear and emphatic majority opinion written by Justice Thomas in the case of National Institute of Family and Life Advocates v. Becerra, the Supreme Court yesterday focused on the basic core of “free speech” under the First Amendment, namely, its content, and overturned the statute that the state of California had specifically designed to force pro-lifers to promote abortion at the very pregnancy support centers that they had constructed to oppose and provide alternatives to abortion. The vote, however, was only 5-4.
In 2015, the California state legislature together with the concurrence of Governor Jerry Brown passed into law an act designed to regulate “crisis pregnancy centers.” The act required those centers licensed by the state to conspicuously post, as stated by Justice Thomas, “a government-drafted notice” that California maintains free or low-cost public programs that provide family-planning, including contraception and abortion. The act also required unlicensed crisis pregnancy centers to post a notice that they were not licensed by the state and were not staffed by licensed medical personnel.
The legislature found that crisis pregnancy centers were “interfering with women’s ability to be fully informed” about family planning and that they employed “intentionally deceptive advertising and counseling practices” which often “confuse” and “even intimidate women.” Or, as the Ninth Circuit Court of Appeals, frankly stated about the purpose of the law: women’s access both to information about abortion and access to abortion itself had been “hindered by the existence” of crisis pregnancy centers.
The two centers in this case (other centers sued in related cases) “objected,” as Justice Breyer put it in dissent, “to abortion for religious reasons,” and sued the state asserting their First Amendment rights. Justice Thomas had pointed out that pregnancy support centers statewide were “largely Christian belief-based.” The two centers argued that the act had abridged both the content of and the inherent viewpoint in their free speech by forcing them to include additional and contradictory speech. They said that the purposeful speech of the centers that had been singled out by the legislature was not commercial or professional speech that could be regulated. There is no “abortion exception to the First Amendment,” they asserted.
The focus of all the arguments in the case was on the act’s requirement concerning licensed centers and the posted notice required of them. Because no message about abortion or contraception itself was required of the unlicensed centers, it was thought by people on both sides of the case that the Court might endorse the act’s requirement about those centers’ to post the fact of their lack of licensure. That did not turn out to be true. Despite the Ninth Circuit’s opinion that the Act was “a neutral law of general applicability,” the Court struck down both provisions of the law.
Concerning the licensed crisis-pregnancy centers, the act required that notices be posted in the waiting room and printed on all materials paper and digital. Thomas said that such a law not only failed under strict scrutiny, it did not even pass intermediate scrutiny. The law was “content based,” he said, and quoting Reed v. Gilbert (2015), such laws “target speech based on its communicative content.” And quoting Riley v. National Federation of the Blind (1988), he concluded that by “compelling individuals to speak a certain message,” the licensed notice caused the centers to “alte[r] the content of [their] speech. In Reed, the Court, with an opinion by Justice Thomas, had voted unanimously to overturn an Arizona town’s ordinance that had prevented a church from placing neighborhood signs directing people to its services. And in Riley, the Court, in a 7-2 decision, had overturned a North Carolina statute that prescribed the fees and certain disclosures of professional fundraisers.
Nor could California, the majority opinion held, vindicate its argument that the law was just a species of professional speech that states can regulate. Thomas emphatically denied that professional speech was “a separate category of speech” under the First Amendment.” Citing cases, including the case on which the majority most fundamentally disagreed with the dissent, Zauderer v. Office of Disc. Counsel (1985), he said that “speech is not unprotected merely because it is uttered by professionals.” In Zauderer, in a very divided decision with multiple opinions, the Court both upheld and overturned certain of an attorney’s advertisements for legal services. Under Zauderer, Thomas said, professionals can be required to make disclosures about “factual, noncontroversial information in their commercial speech” without violating their free speech rights. Likewise, in the abortion case, Planned Parenthood v. Casey (1992), Thomas asserted, the Court held that the professional conduct of medical professionals could be regulated by law when their conduct only “incidentally involves speech.”
“Outside of” factual disclosures and professional speech incidental to professional conduct, Thomas writing for the majority concluded that “this Court’s precedents have long protected the First Amendment rights of professionals.” And he particularly cited the seemingly opposed case of Turner Broadcasting v. FCC (1992), in which the Court upheld a federal regulation requiring cable systems to carry local programming, because, he maintained, that “must carry” requirement was neutral with reference to the content of broadcasts.
Concerning the requirement that unlicensed centers post a notices, including in print materials, stating they are unlicensed, the opinion of the Court held that the requirement was “unjustified . . . unduly burdensome . . . and hypothetical.” California had failed to prove that the unlicensed notice had any bona fide purpose or effect. The Court pointed out that there was nothing in the record “suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals.” Thus, the notice “imposes a government-scripted, speaker-based disclosure requirement this is wholly disconnected from California’s informational interest.” Litigation in the case had brought out the disclosure would be required on “Choose Life” billboards, Thomas said, with the effect of “drown[ing] out the facility’s own message.” The overall result of the notice would be the “chill[ing]” of the “protected speech” of the centers, and the majority of the Court concluded it cannot be accepted under Zauderer.
For the four dissenters, Justices Sotomayor, Ginsburg, and Kagan, and himself, Justice Breyer said that the Casey case in which the Court upheld the state of Pennsylvania’s law requiring abortionists to tell women about adoption services and requiring a waiting period before an abortion was “controlling.” And Breyer criticized the majority opinion’s statement and conclusion that, unlike the abortion procedures in Casey and the provision of legal services in Zauderer, the California act required licensed notices “in no way related to the services that licensed clinics provide.” He said that abortions and adoption services were “the very same services.”
Unlike the Masterpiece Cakeshop case in which a major question (eventually undecided by the Court) was whether cake-baking was a form of speech, the free-speech focus of NIFLA v. Becerra was literally “speech.” In its decision, the Supreme Court stopped the verbal invasion of crisis pregnancy centers and turned back the attempt by California’s state government to require certain speech for the purpose of stamping out other speech that it opposes. The Court blocked that state’s bid to, in Justice Thomas’ words, “compel individuals to contradict their most deeply held beliefs.” The Court made no ruling on any issue concerning the free exercise of religion.