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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.

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