Civil and Human Rights

Supreme Court to weigh free speech for anti-abortion centers

“They can discourage women from getting abortions as vehemently as they want, in whatever manner they want, and the California law does nothing to stop that,” Brianne Gorod, chief counsel at the Constitutional Accountability Center, said at a Newseum event Friday. “What they cannot do is keep them in the dark about rights available to them under California law and services that California makes available.”

The Supreme Court on Tuesday will hear whether California is violating free speech rights by forcing anti-abortion pregnancy centers to post information about the availability of state-funded abortions.

A decision is expected by the end of June and could trigger legal changes in other states, such as similar laws in Hawaii and Illinois. Depending on the outcome, reproductive rights advocates may seek to overturn anti-abortion laws that require doctors to tell women that abortions lead to mental health problems or breast cancer, disclosures that abortion advocates say are false.

The case, National Institute of Family and Life Advocates v. Becerra, also involves a second part of the California law requiring centers to disclose when they don’t have medical staff present, and instead provide free products such as diapers and maternity clothes. If the facilities don’t comply with the law, commonly known as the FACT Act, they can be fined $500 for a first offense and $1,000 for subsequent violations. The ads have specifications, including font and language requirements (as seen in the following blockquotes from the legislation), that plaintiffs say will increase marketing costs.

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

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.

California lawmakers said the laws are necessary to correct misinformation. But many crisis pregnancy centers tend to be Christian-based and staunchly opposed to abortion, so after the passage of the California law, they sued under the First Amendment saying that forcing them to advertise abortion is at odds with their purposes and beliefs.

Their suit also says that they have been singled out for their views because other groups, such as private doctor practices, don’t have the same requirements. If the state wants to get the message out about its services, then it should do so itself, plaintiffs say.

“The state of California has a lot of other ways to make sure women know they have this option under California’s Medicaid program, such as through public service announcements or sex education in schools,” said Deanna Wallace, director of legal communications for the anti-abortion group Americans United for Life. “They chose none of those and chose pregnancy centers.”

The federal district court and the 9th Circuit Court of Appeals rejected those arguments on the basis that the state may regulate professional free speech and that the law protects public health interests. Supporters say the law only adds information to the services the centers are providing and does not silence their message. The signs include information about state-funded contraception and prenatal care as well.

“They can discourage women from getting abortions as vehemently as they want, in whatever manner they want, and the California law does nothing to stop that,” Brianne Gorod, chief counsel at the Constitutional Accountability Center, said at a Newseum event Friday. “What they cannot do is keep them in the dark about rights available to them under California law and services that California makes available.”

Some of the pregnancy centers provide limited medical care, including pregnancy tests, ultrasounds, and testing for sexually transmitted infections. Their goal is to provide resources to women who choose parenting or adoption, and their supporters say the California law threatens their existence.

“It’s either do something against your conscience and hope you can continue to do good, or stand firm for what you believe in and not be able to serve,” Andrea Picciotti-Bayer, legal adviser to the Catholic Association Foundation, which filed an amicus brief siding with the plaintiffs. “That’s a really rotten choice to give anybody, especially when the stakes are so high for the people who want and need their help.”

California lawmakers argued the signs are necessary because they say crisis pregnancy centers provided misleading information about abortion and pregnancy, compelling the state to act. An investigation by NARAL Pro-Choice America accused some crisis pregnancy centers of forcing women to watch anti-abortion movies, slide shows, and photographs.

“I reject the nomenclature ‘crisis pregnancy center.’ These are just fake clinics,” said Dr. Jamila Perritt, a fellow with Physicians for Reproductive Health.

Perritt, who practices in Washington, D.C., has treated women after they visit the pregnancy centers, saying the centers provide false information or seek to delay a patient from getting an abortion. In one instance less than a month ago, a patient said she had been incorrectly told at the pregnancy center that she was 24 weeks along, a time after which abortion is illegal. In reality, the patient was six weeks pregnant.

“This is a deliberate attempt to misinform and mislead an individual,” she said, noting that the pregnancy centers often set up their facilities near abortion providers.

Clinics and their supporters say such allegations about their practices are false. Picciotti-Bayer said the California law had relied heavily on the NARAL report.

“Just looking at the report, it doesn’t really read like deception and being misled,” she said. “It just reads that they didn’t like what they heard. The women that we spoke with had a completely different experience … they were supported and encouraged.”

Ashley McGuire, senior fellow at the Catholic Association Foundation, said it was condescending to women to suggest they cannot tell if a facility will provide abortion, noting that some are in churches.

“The centers are very clear about why they exist. This is why they don’t want to post abortion material,” she said. “They exist to provide women another option.”

Perritt, however, said navigating the healthcare system is complex, whether someone is seeking abortion services or other medical care.

“For the folks that come in to discuss their options, being able to get unbiased information shouldn’t occur at the luck of the draw,” she said. “Hoping people will figure it out is not the way we should be taking care of people.”

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