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The Constitutional Freedom Not to Promote Abortion

May a state government legally require pro-life crisis pregnancy centers to post notices or provide information promoting free or low-cost abortion? May a state government by law require abortion clinics to provide to women seeking abortion information concerning abortion alternatives? Are the answers to these two questions necessarily the same?

The first question is presented in the important case of National Institute of Family and Life Advocates (NIFLA) v. Becerra, to be argued today in the U.S. Supreme Court. California law compels pro-life crisis pregnancy centers to provide pro-abortion information to women who come to them for help.

Stop right there: go back and read that last sentence again. For what it describes is almost incredible: California law requires a private, pro-life social services ministry serving pregnant women confronted with crisis pregnancy situations to provide information telling these women how to get abortions, cheap. Such coerced speech – requiring a private group to promote views antagonistic to its own message – is as flat a violation of the First Amendment’s freedom of speech as it is possible to imagine. (More on this point presently.)

On top of that, California has imposed its compelled-speech requirement explicitly because it does not like the pro-life message and viewpoint of these crisis pregnancy centers. Indeed, California crafted its law so that the requirement of abortion-referral applies in effect only to such pro-life centers. This too is a plain violation of the First Amendment. The very core of the constitutional freedom of speech – a core recognized in too many Supreme Court cases to count – is that government may not regulate, punish, prohibit, or burden speech or expressive conduct because of the particular point-of-view it adopts or reflects. Yet that, by admission, was exactly California’s objective: the state sought to punish and counteract crisis pregnancy centers’ pro-life activities out of hostility to their message. (I will set forth some of the amazing smoking-gun evidence of this below.)

California’s law is thus doubly unconstitutional: it compels a private group to express messages contrary to its own, violating one core free speech principle; and it does so in order to punish and burden a pro-life viewpoint it vehemently opposes, violating another. It is really hard to imagine a more flagrant, shameless violation of the First Amendment. California’s law is outrageously unconstitutional.

The Constitutional Right Not to Promote Abortion

Allow me to provide a little more detail about the nature of the constitutional violation involved in the NIFLA case.

Start with an obvious baseline proposition: If I am a pro-life individual or a pro-life organization, government certainly cannot require me (or my group) to express a message endorsing, sponsoring, or promoting abortion, just because government wants me to communicate such a message. The freedom of speech, of persons and groups, includes the freedom not to speak. I get to express my own views and decline to express the government’s. That much seems an indisputable starting point.  This premise is abundantly and unequivocally confirmed by a long line of Supreme Court cases, involving everything from compelling Jehovah’s Witness schoolchildren to recite the Pledge of Allegiance in contravention of their religious faith, to requiring a utility company to include in its billing envelope the newsletter of a third-party speaker, to requiring a privately-sponsored St. Patrick’s Day parade to include a gay-rights advocacy group and its banner as part of its parade. The Court held each of these compulsions unconstitutional. The St. Patrick’s Day parade decision, in 1995, was unanimous.

Next step: If I am a pro-life individual or group, living out my pro-life convictions by providing counseling, advice, encouragement, resources, services, information, and material support to women in crisis pregnancy situations – in order to convince them not to take the life of their unborn child – government likewise cannot require me (or my group) to communicate a message promoting the availability of abortion and telling the women who choose to come to us for help in facing crisis pregnancy situations where they can go and who they might call to obtain an abortion of their child’s life. That too, seems indisputable – and is supported by the same long line of Supreme Court precedents. Government may not condition my right to speak, advocate, counsel, and support women not to have abortions upon my expressing the government’s views proposing or suggesting abortion.

California’s assorted pretexts – that it is regulating “commercial” speech, or “professional” speech, or “advertising,” or the provision of “medical” services – are false as a factual matter (the pregnancy counseling centers involved in the NIFLA case are charities, not commercial businesses or fee-for-service medical clinics) and irrelevant as a legal matter. Whatever the scope of the state’s (limited) power to regulate professional or commercial or medical speech, it does not include a power to compel a person or group to promote views or practices antithetical to the advocate’s own expressed views.

Finally, one further point: If I am a pro-life crisis pregnancy advocate or organization, government certainly may not, out of disapproval of my views – that is, for reasons of hostility toward my pro-life message and ministry to pregnant women – require the “antidote” of forcing me to express what I believe to be the competing, murderous message of publicly supported and subsidized medical or surgical abortion services.

Government sometimes may regulate speech for neutral reasons unrelated to its message or viewpoint. But government never may regulate speech out of hostility to the views being expressed. The very core of the Free Speech Clause of the First Amendment is that government may not punish, prohibit, penalize, or regulate speech based on the viewpoint expressed. No point-of-view is so “dangerous” or “improper” that government is justified, ever, in attaching a penalty, regulation, disability, or burden to its expression by private parties that it does not (or would not) impose on bare expression of the opposite point-of-view.

Yet that is exactly what California has attempted to do and exactly what is at stake in the NIFLA case. California law requires pro-life crisis pregnancy centers to convey pro-abortion messages and disclaimers about their own services. If a woman walks into a crisis pregnancy center – a center that by definition does not provide or refer for abortion but offers other forms of assistance to pregnant women – California requires that the center disseminate to her information about how she might obtain a state-subsidized abortion:

California has public programs that provide immediate free or low-cost access to … abortion for eligible women. To determine if you qualify, call … [phone number].

Further, if the pro-life crisis pregnancy center is not a licensed medical facility – that is, if it does not purport to offer services for which any medical licensure is required – California requires that the center essentially attempt to warn the woman away, by communicating an ominous-sounding message:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

To describe this case is to decide it. California’s law compels direct pro-abortion advocacy by pro-life crisis centers and, further, compels speech by many such centers warning women away from its doors. Under the First Amendment principles described above, such a law is plainly unconstitutional.

But there’s more: California’s law was explicitly targeted at pro-life centers, precisely because of their mission and message. It was unabashedly motivated by hostility toward the point-or-view and purposes of such pro-life centers. And the law’s application is gerrymandered to exclude from its compelled-messages commands essentially everybody but pro-life crisis pregnancy centers.  These points are documented at exhaustive length in the briefs in the case (at pages 31-39).

The most explicit evidence comes from the official committee legislative history statement of the “Purpose” of the bill (reproduced at pp. 84-85 of the Joint Appendix in the NIFLA case).  The report does not attempt to hide the legislature’s objective of requiring crisis pregnancy centers to provide information promoting abortion and its unabashed hostility to the pro-life viewpoint of crisis pregnancy centers:

Purpose of this bill. According to the author, California has a proud legacy of respecting reproductive freedoms and funding forward thinking programs to provide reproductive health assistance to low income women. …

The author contends that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with a woman’s ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full service women’s health clinics, but aim to discourage and prevent women from seeking abortions. The author concludes that these intentionally deceptive advertising and counseling practices often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.

There’s practically no need to paraphrase this statement in ways that suggest more strongly its anti-pro-life-views animus. They are plain as day:  California’s “proud legacy” of “forwarding thinking” in promoting “reproductive freedom” – slight euphemism there, to be sure – is “unfortunately” impaired by the views held and expressed by crisis pregnancy centers, which “aim to discourage” abortions. Such “intentionally deceptive” messages (“deceptive,” apparently, because they discourage abortion rather than encourage it) must therefore be counteracted. That is the purpose of requiring pro-life centers to promote the availability of subsidized abortion.

As a rule, the motivation behind a law should not matter to its constitutionality. (There are some limited exceptions to this principle.) A law that is otherwise valid does not become unconstitutional because of the motivations or purposes of its backers. But where a law’s direct consequence is to burden a constitutional freedom – like the freedom of speech – the fact that it was designed and intended to have such a consequence is one more nail in the coffin. It gives the lie to any contention that the law was meant as a “neutral” regulation having nothing to do with restricting speech. It shows that the regulation was anti-speech, not speech-neutral.

Here, that evidence is literally overwhelming. California’s law intentionally aimed at the target it hit. That target was the pro-life views and work of crisis pregnancy centers.

Are Informed-Consent Requirements for Abortion also “Compelled Speech”?

The second question presented at the outset is somewhat more difficult, but in the end, it has a reasonably straightforward answer. May a state require abortion providers to provide information about alternatives to abortion – information that, in practical effect, conveys a pro-life message antithetical to the views or commercial interests of the abortion business and its practitioners?

At first blush, there might be the intuition that the answer to this second question ought to be the same as the answer to the first. There is a certain sauce-for-the-gander sense that the position of the abortionist business is the same, or closely parallel to, the crisis pregnancy centers’ – and thus that whatever the rule, it ought in fairness apply equally in both directions. That intuition certainly was the driving force behind California’s law: “Hey, if government can require abortion clinics to give out anti-abortion information [requirements the Supreme Court has upheld as assuring informed consent to an abortion procedure], then government ought to be able to require crisis pregnancy centers to do the same thing in reverse, and provide pro-abortion information!”  As noted, the whole point of California’s law – championed as “forward thinking” in support of “reproductive rights” – was to do unto despised pro-life centers in California what might be done (in other states – not California!) to beloved, salvific abortion clinics.

But are the situations truly parallel? The arguments resemble each other in form (at least superficially). But their content is different. Specifically, informed consent to a medical or surgical procedure – abortion – implies the legitimate power of government to regulate actual professional medical practice so as to require provision of information to a patient relevant to the decision to undergo a surgical procedure. Such information reasonably could include information about the availability of alternatives to having an abortion.

Now, in a sense, that requires a commercial abortion business to promote the “product” of its competitor (the same as pro-life centers being compelled to promote abortion businesses). But the analogy is certainly more strained in this setting. The more reasonable view is not that government is seeking to regulate medical practice, justifiably – not to compel speech, gratuitously, out of hostility to a speaker’s viewpoint.

At least, that is what the Supreme Court held in Planned Parenthood v. Casey, an otherwise regrettable pro-abortion decision reaffirming Roe v. Wade’s creation of a right to abortion. Casey rejected abortionists’ free-speech challenges to informed consent requirements for abortion, including requirements that the patient be informed about the stage-of-development of the fetus and the availability of alternatives to abortion: “as with any medical procedure,” the Court wrote, government may require information necessary to an informed choice. Thus, “a requirement that a doctor give a woman certain information as a part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.” The Court in Casey recognized that this “implicated” an abortion clinic’s or physician’s “First Amendment rights not to speak,” but did so “only as a part of the practice of medicine” in order to assure informed consent to a “medical procedure.” On this understanding, Casey found no First Amendment problem.

In short, the two situations simply are not parallel. California’s law mandating that pro-life crisis pregnancy centers furnish information promoting abortion is not in any way connected to assuring “informed consent” for any medical procedure performed by a crisis pregnancy center. In this respect, it seems vitally relevant that abortion clinics do perform medical procedures – performing abortions involves the licensed practice of medicine – and pro-life crisis pregnancy centers do not. Informed consent requirements for abortion regulate the professional practice of medicine – a surgery, an operation. California’s law regulates pro-life counseling and advocacy. That’s a distinction with a real difference.

There’s another critical distinction – one that should be obvious but that somehow tends to be overlooked in the rush to indulge the hypothesis that the two situations are parallel. Any honest notion of fully informed consent to abortion must include some recognition of the fact that an abortion results in the killing of another living human being. I do not mean this to be a tendentious, ideological statement but a bare description of medical fact: Abortion ends the life of a living human embryo or fetus. That is a dry, factual reality, yet one often denied. Abortion kills a living being, and the living being killed by abortion is a human living being, albeit one at an early stage in his or her physical development.

To be sure, grasping this basic fact might have important moral implications. It should. But that is precisely what makes it relevant to a fully informed choice about an elective, irreversible medical operation that produces such an important consequence. Information about the unborn child’s stage of development, physical characteristics, appearance, sex, status as an independent living being, and about alternatives to killing him or her, might well be judged directly pertinent to an informed choice to undergo this particular surgical or medical procedure.

There is frankly no equivalent “informed consent” analogy on the other side. The act of having a simple over-the-counter pregnancy test, or viewing an ultrasound image, or hearing information about financial assistance for childbirth, or receiving information about adoption arrangements, involves no issue of consent to a medical procedure at all – let alone of informed consent to a surgery the result of which is to terminate a human life. Even granting the doubtful premise of parallelism, the “informed consent” stakes are not remotely alike, in magnitude or permanence. Having an abortion precludes a later decision not to have that abortion. Counseling against abortion does not preclude a later decision to have one.  This too is a distinction with a real difference.

What if the Two Situations Were Thought to Pose Precisely the Same Question?

But suppose I’m wrong about this. Suppose one finds these distinctions unpersuasive. It would still be the case that California’s law, as applied to the pro-life pregnancy centers it targets and whose speech it compels, contrary to its own viewpoint, remains a core violation of the First Amendment. The immovable anchor-points of any analysis surely must be: (a) that government may not compel speech by a private organization antagonistic to the group’s own message; (b) that government may not punish such a group’s own advocacy, expression, viewpoint, and mission by requiring it to affix the government’s contrary message; and (c) that government may not target viewpoints it opposes for such compelled-speech regulations out of hostility to those viewpoints.

If these principles imply that some (but surely not all) “informed-consent” requirements, imposed on abortion providers, might be vulnerable to First Amendment challenge, so be it.  The real objection to abortion is, after all, abortion – to the legal permissibility of this procedure at all (in most circumstances). Consent laws are half measures, designed to insure an informed choice about a medical procedure that kills a human life. By doing so, they might persuade some women not to have abortions. But in the end, informed-consent requirements do not prohibit or prevent any abortions. If a particular such requirement truly could not be justified, consistent with First Amendment principles – which I doubt, in most real-world circumstances – it too should fall. Better that result than evisceration of the First Amendment freedom of crisis pregnancy centers not to promote abortion.

Reader Discussion

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on March 20, 2018 at 10:39:01 am

Thanks for this thoughtful analysis. Those interested in a further explication of the different interests involved in regulating pregnancy centers vs. abortion providers should read the amicus brief of the National Association of Evangelicals et al. filed in the NIFLA case, of which I was the principal author.

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Rick Claybrook
on March 20, 2018 at 10:56:55 am

Thoughtful analysis, about which those from the legal academy will, no doubt, now proceed to split hairs employing distinctions meaningful only to them.

For California's Democrats to have killed such a law in its first month or late-term or even post-partum would have been, for once for them, a constructive resort to abortion.

But that's not how legal matters work in California. There the Marty Feldmans of public law, California's legislature and its Governor Moonbeam, create legal monstrosities from "abby normal" brains, the Ninth Circus gives them a constitutional pass, and the Supreme Court must kill the beast and clean up the bloody mess.

One assumes that the Nine Robes' condemnation will be unanimous. Yet, much like Babbitt and Santayana abjuring Lenin and Trotsky, one dreads the prospect of Sotomayor and Ginsburg concurring with Thomas, Alito and Gorsuch.

Sewage with wine; swine gaping at pearls.

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timothy
on March 20, 2018 at 12:30:05 pm

Ah, yes, libertarianism still means that women should be forced to have children, and with no safety net, starve. And I bet you stand around and wonder why so few women are libertarians.

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excessivelyperky
on March 20, 2018 at 12:43:01 pm

Whatever the scope of the state’s (limited) power to regulate professional or commercial or medical speech, it does not include a power to compel a person or group to promote views or practices antithetical to the advocate’s own expressed views.

When was the last time you looked at a pack of cigarettes?

Look, I think the California law goes too far. But I also think that it addresses a real problem: Fraud.

Some “crisis pregnancy centers” lure women in by deceiving them into believing that the centers provide abortion services; indeed, some go so far as to pay to have their centers boosted on the Google search page when people search for “abortion provider.” Now, a little fraud might not be such a big deal—after all, firms regularly engage in “puffing”—except that time is of the essence because the period during which a woman may exercise her constitutional right to obtain an abortion is limited.

California law requires pro-life crisis pregnancy centers to convey pro-abortion messages and disclaimers about their own services. If a woman walks into a crisis pregnancy center – a center that by definition does not provide or refer for abortion but offers other forms of assistance to pregnant women….

Exactly: We are discussing centers that, by definition, do not provide or refer for abortions. Thus, there should be no problem with requiring such centers to disclose this fact prominently so that there is no risk of fraud, right?

Likewise:

Further, if the pro-life crisis pregnancy center is not a licensed medical facility – that is, if it does not purport to offer services for which any medical licensure is required – California requires that the center essentially attempt to warn the woman away, by communicating an ominous-sounding message:

“This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

I don’t see the problem here. If the pregnancy center is not a medical facility, why would they object to making this fact plain to everyone—unless their real objective is fraud?

Of course, the California law goes beyond requiring these disclaimers and actually compels pregnancy centers to advertise a state service. I surmise that the law is intended as a remedy for fraud: If a center wastes a woman’s time under false pretenses, the least the center can do is to help the woman find what she’s looking for promptly. Thus, it’s not an irrational policy; the remedy is rationally related to the problem it seeks to solve.

But presumably not all pregnancy centers engage in fraud. And to impinge upon the Free Speech rights of the innocent as a means of remedying the harms of the guilty arguably goes too far.

The state is free to advertise its own services. Heck, the state is free to pay staff to stand outside pregnancy centers with sandwich boards, handing out leaflets. But it shouldn't compel private parties to do so. (The moral views of the private parties are irrelevant to this analysis.)

Thus, I expect the Court will strike down the duty to advertise the state services, but uphold the duty for pregnancy centers to prominently disclose that they are not medical centers and that they do not provide abortion services or referrals. Compelled disclosure, not compelled advertising.

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nobody.really
on March 20, 2018 at 15:51:32 pm

You are describing what I call "Religious Fascism": For one group to use the power of the state to force their religious beliefs on another group.

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Richard
on March 20, 2018 at 16:16:27 pm

The law requires all kinds of written wording for organizations providing various products and services. in this case,. the required wording is true and of potential benefit to the customer. I think the SC will uphold this law by a margin of 7 to 2.

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David in Cal
on March 20, 2018 at 16:53:33 pm

We know from NFIB v. Sibelius of this Court's unwillingness to countenance, under the guise of strictly commercial regulation, state compulsion of personal decision-making and behavior on the part of those who, otherwise, would choose of their own free will to do nothing. Masterpiece Cakeshop will soon be decided and (I predict) further reflect this Court's aversion to government compulsion of behavior by those who, of their own free will, would choose not to act because doing so is contrary to their conscience or religious belief.

NIFLA v. Beccerra strikes me as an even more compelling, if hybrid, state infringement of the right to remain quiescent, with the outcome almost certainly the same but from a unanimous Court.

Different constitutional restraints; same special concerns with ones freedom not to act, same result.

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timothy
on March 20, 2018 at 18:25:33 pm

"May a state government legally require pro-life crisis pregnancy centers to post notices or provide information promoting free or low-cost abortion?"

A human person can only conceive a human person, and every son or daughter of a human person can only be, in essence, a human person. Since it is true that being a son or daughter of a human person does not depend on one's location, or whether or not that particular son or daughter is residing inside or outside of their mother's womb, on what basis can any State Government make the claim that it is necessary or proper "to post notices or provide information promoting a free or low cost way to destroy the life of a particular son or daughter residing in their mother's womb because a mother does not want to provide shelter or nourishment for their son or daughter?

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Nancy D.
on March 20, 2018 at 18:36:41 pm

Wow! That may be the most audacious prediction ever of a Supreme Court vote.

7-2 to overturn California's law is readily arguable. 7-2 the other way is not even a statistical possibility.

Since Roe the Court has consistently reiterated its lip service to the specious notion that abortion is constitutionally-protected while consistently narrowing the "right" and, with some exception, broadening significantly the scope of allowable state restriction on abortion.

There is absolutely no sign of or reason to expect this Court to reverse that trend, certainly not by empowering states to compel abortion's advocacy by its religiously-motivated, conscience-driven enemies.

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timothy
on March 21, 2018 at 10:26:11 am

And upon precisely WHAT evidence is this assertion of FRAUD based?

or did you mean to address the fraud perpetrated by Denise Richards fiefdom, PP, and the denial of participation in the sale of fetal parts harvested at their various locales?

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gabe
on March 21, 2018 at 10:39:30 am

http://thefederalist.com/2018/03/20/13-women-told-supreme-court-crisis-pregnancies/?utm_source=The+Federalist+List&utm_campaign=b111ce8658-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-b111ce8658-83944121

just sayin.

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timothy
on March 21, 2018 at 11:18:07 am

"And I bet you stand around and wonder why so few women are libertarians"

Then again, if so many women were NOT libertines, this discussion could be avoidable.

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excessively-pesky
on March 21, 2018 at 11:25:06 am

thx!

This belies the claims (fantasies) of nobody.really who would presumably, following his own logic, require that the convivial and loquacious Irish bartender dispensing both alcoholic refreshments and friendly medical advice to the old duffer across the bar counter complaining of his aching back and hip,s recommends to the old boy hip surgery and a good doctor, "cuz after all, laddie, my dear sister Gertrude had it done and it came out roses."

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gabe
on March 21, 2018 at 12:10:55 pm

Uh ... quite the opposite. I don't mind a metaphor, but it should be a good metaphor. This is about as bad a metaphor as you might devise.

The California law requires people who are not licenced medical professionals, but who operate in a setting that might mislead people, to disclose that they are not licenced medial professionals. So the law's logic would certainly not compel, or even encourage, a bartender to offer medical advice. Moreover, the law would not ask anyone to simply make things up; it provides an explicit script.

A better metaphor might be to say that the law acknowledges that bartenders are in the business of promoting alcohol consumption, yet nonetheless compels bartenders to refuse to serve alcohol to people who are obviously and dangerously intoxicated. And, lo and behold, this is the state of the law in most jurisdictions. And if the law added that bartenders are required to say, "In accordance with state law, I must decline to serve additional alcohol to you in your current condition," I don't expect that anyone would be able to persuade a court that this violated the bartender's free speech rights. (However, if the law also required the bartender to say, "Alcoholics Anonymous provides assistance for people with chemical dependency issues....," that might cross the line.)

Moreover, while I haven't read the brief filed by the 13 women, I can't fathom what possible relevance it would have to the current case. Sure, if the current case were about denying people the opportunity to go to emergency pregnancy centers, it might have some relevance. But no one has proposed such an outcome. Imagine if, in his defense against rape charges, Bill Cosby were to present the testimony of 13 women who acknowledged meeting with Cosby and NOT being raped; would that testimony have any relevance?

gabe, back when we were discussing the merits of gay marriage, people kept trotting out heartwarming stories about gay couples. Those stories were charming--and irrelevant to any of the legal issues at play. I'm not opposed to considering a line of argument if I think there might be something valuable to learn at the end. If you've read the brief, do share: What relevance does it have to any if the issues of the case?

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nobody.really
on March 21, 2018 at 12:21:11 pm

mpbpdy:

No, I have not read the briefs. My comment was solely intended to offer a counter to your assertion that fraud was being committed by these centers. The testimony of these 13 women would tend, at a minimum, to suggest that if fraud be present, it may be exceedingly rare and that at least for these women the centers provided much needed help. That is it in a nutshell.

As to our loquacious bartender, the point is not that the state may regulate his dispensing of alcohol to certain patrons, but rather that almost anyone, under the states logic, could be compelled to post a sign saying they are not licensed medical providers.

And that includes me and the other old codgers that I golf with. Then again, we DO NOT offer ourselves as "medical providers" although we are certainly offer free (and useless) medical advice. No wonder, i can barely get anything done - Ha!!!!!!

BTW: Agreed that the *stories* both here and in the SSM case are not relevant to the constitutional issues at play.

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gabe
on March 21, 2018 at 12:38:32 pm

For several reasons I think the so-called "fraud" argument ( Crisis Pregnancy Centers falsely appearing to be medical clinics that provide abortion services) is manufactured out of whole cloth and will get short shrift by the Court: 1) Several justices asked pointed questions reflecting their concern that the centers were being targeted BECAUSE of their pro-life views, not because of evidence of fraud. Anyone familiar with the legislative battle over California's law knows that to be the case. That several justices had already figured it out from the briefs is bad news for Becerra. 2) In the recent Fourth circuit decision voiding a similar Baltimore ordinance the judge who wrote the majority opinion said: “After seven years of litigation and a 1,295-page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there." 3) The basic legislative "findings" that underlay the California statute were provided by NARAL, a pro-choice activist organization. Since back in the day when the dishonorable Justice Blackmun misled the Court in Roe with his ex parte research at the Mayo Clinic there has been special sensitivity to the Court's assessment of abortion "research" and abortion "facts" generated by parties to the litigation. The judicial canonization of false facts and advocacy research is not so easy now as it was then.

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timothy
on March 21, 2018 at 14:44:47 pm

The testimony of these 13 women would tend, at a minimum, to suggest that if fraud be present, it may be exceedingly rare and that at least for these women the centers provided much needed help. That is it in a nutshell.

Indeed, the testimony might demonstrate that the centers provided help to these 13 women. And that would be relevant if anyone were proposing to close the centers, or otherwise to restrict people’s access to them. But no one is.

In contrast, the testimony does nothing to demonstrate that any fraud must be rare. Even if the 13 women in question were chosen at random, a sample size of 13 is simply too small to justify any generalizations. Moreover, there’s no reason to believe that these women were chosen at random; rather, it seems clear that the people who wrote the brief hand-picked witnesses that would offer accounts in support of a specific point of view. There’s nothing especially immoral or unethical about that—but it doesn’t provide much basis for generalization.

If we took a survey of Seahawk cheerleaders about their favorite football team, I can guess what the outcome might be. But I can’t imagine what use anyone could make of such a survey—except for marketing. Thus, I surmise that the amicus brief in question is basically an exercise in marketing.

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nobody.really
on March 21, 2018 at 15:22:10 pm

nobody:

See timothy's comments above on Baltimore findings on fraud.

Funny, BTW, isn't it how Justice Kennedy, with the approval of our SJW friends, can remark (and clearly ACT) upon alleged *animus* in a law when deciding SSM cases but our SJW's are all too ready to deploy that same animus when in support of a *good cause*.
Let us see how discerning an eye Black Robe Kennedy for animus in this case?

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gabe
on March 21, 2018 at 15:30:48 pm

"Nobody," I agree with much of what you say, particularly that an amicus brief/testimony from satisfied customers does not, in itself, prove the absence of consumer abuse. Yet, one cannot really prove the absence of abuse without interviewing every customer of the centers in California, if not nationwide, a physical impossibility.

But one can prove the existence of highly satisfied customers whose experiences suggest both their sincerity and the integrity of the centers, which is precisely what the amici have done. That should at least shift the burden to the state to demonstrate through reliable sources significant, if not widespread, consumer abuse by the centers. That burden would be approached through extensive consumer surveys or interviews and from data compiled by consumer protection agencies. That is a level of proof that the FTC would require before proceeding under section 5 of the FTC Act. That kind of information may be lacking here, although I have not reviewed the record.

I will disagree with your assertion that "marketing" is the amici's motive. I'm just not jaded enough to go there, despite eight years under Obama.

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timothy
on March 22, 2018 at 00:56:27 am

And upon precisely WHAT evidence is this assertion of FRAUD based?

Kelsey knew something was wrong when the woman who had just administered her pregnancy test began to pray over her. Minutes earlier, the college sophomore had walked into the Pregnancy Resource Clinic in State College, Pennsylvania, just half a mile outside the Penn State campus. She’d been greeted by a friendly, solicitous staff, but had been unnerved by their refusal to even mention abortion as an option. When her test came back negative and the administrator began an invocation for her abstinence, however, her stomach sank. “I left feeling deceived and ashamed,” said Kelsey, who asked that I not publish her last name. “Every girl who’s been in that situation would immediately think to go to the Pregnancy Resource Clinic. How would we know that we were being deceived?”

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nobody.really
on March 22, 2018 at 08:16:42 am

"And upon precisely WHAT evidence is this assertion of FRAUD based?"

We can know through both Faith and reason, affirmed by Science, that the fact that Roe v. Wade denied that a son or daughter of a human person, can only be a human person, would not be an assertion of fraud, but an affirmation of fraud, leading to a grievous error in both substantive and procedural due process law. Therein lies the greatest of deceptions. In this case the affirmation of fraud begins with the denial of the personhood of the son or daughter residing in their mother's womb.

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Nancy D.
on March 22, 2018 at 08:30:46 am

We can know through both Faith and reason, that a human person can only conceive a human person, and every son or daughter of a human person can only be a human person, thus respect for the Sanctity of human life is not just a Religious question. Fascism is a deliberate perversion of truth; fascism does not serve to affirm the truth about our beloved sons and daughters.

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Nancy D.
on March 22, 2018 at 09:25:01 am

I know I shouldn't respond....

...but I don't see how personhood is at issue here. Since you repeat your arguments, I'll repeat mine: Your local dialysis clinic is filled with people who are dying for lack of a kidney. Yet the law does not compel you to donate a kidney, even though their lives depend upon it.

The issue is the duty of Person A to use his or her body for the benefit of Person B. Under common law (and the Restatement of Torts), generally there is no such duty. Hell, I don't know that a dad even has a duty to donate a pint of blood, let alone his entire body, for the benefit of his kids. You can like the law; you can hate the law; but that's the law. And personhood's got nothin' to do with it.

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nobody.really
on March 22, 2018 at 09:43:10 am

"BTW: Agreed that the *stories* both here and in the SSM case are not relevant to the constitutional issues at play."

In regards to fraud, they are similiar, but not the same. Just as marriage cannot be and not be existing in relationship as husband and wife, simultaneously, a son or daughter of a human person cannot be and not be a son or daughter of a human person, simultaneously.

Truth begets truth; fraud begets fraud.

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Nancy D.
on March 22, 2018 at 10:14:34 am

Haha! Vanity Fair!

Now that's true opposition research.

Vanity Fair's article certainly constitutes incontrovertible proof of 1) widespread consumer abuse by pregnancy crisis centers, 2) NIFLA's nefarious war against gullible pregnant mothers, and 3) NIFLA's insidious "We have to lie to mothers so they will not kill their babies" campaign. ( A variation on the theme: 'We had to burn the village to save it.")

And Vanity Fair blames it all on Trump. NIFLA v. Becerra is Trump's fault. Trump is to blame, according to Vanity Fair, for "stirring the pot" in a Supreme Court abortion advocacy/free speech/right of conscience case (in which the US is not a party, an intervener or even an amicus curiae.)

Trump Derangement Syndrome by any other name is still TDS.

Maybe the Kremlin is funding Christians in a Facebook campaign to interfere with Mom's right to choose/baby's right to lose, America's fundamental postmodern liberty (let's call it the "Blackmun Amendment.")

I smell collusion among Putin, Melania, the religious right and NIFLA to undermine patriotic support for the basic right to kill prenatal infants.

Mueller should be tipped off via a leak from the FBI to Vanity Fair.

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timothy
on March 22, 2018 at 10:27:13 am

Trump Derangement Syndrome by any other name is still TDS.

I would not be surprised to someday find TDS in the Diagnostic and Statistical Manual of Mental Disorders VI--but it may not mean what you think it means!

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nobody.really
on March 22, 2018 at 10:43:34 am

that's a riot
downright MEL Brooks
I thought it was going to end (in understated irony) with the mere amputation of the Six-Fingered Man's sixth finger.
the real ending was beter

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timothy

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