Civil and Human Rights

Time for Court to Stop Abuse of First Amendment

In its amicus brief defending the California law, the progressive Constitutional Accountability Center rightly argues that the measure promotes First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits. A decision to strike down the law could have ramifications for disclosure laws generally, the brief warns.

The Supreme Court will be asked on Tuesday [March 20], in the name of the First Amendment, to nullify a California law requiring anti-abortion women’s health clinics to tell women where they can obtain information about free or low-cost abortion services. The case, National Institute of Family and Life Advocates v. Becerra, represents the third time this term that political conservatives have urged justices committed to an originalist interpretation of the Constitution to find in the Free Speech Clause meanings that James Madison and the other Framers could never have intended or contemplated.

The anti-abortion pregnancy resource centers represented by the trade association known by its initials as NIFLA are well within their First Amendment rights to try to dissuade “abortion-vulnerable women” from terminating their pregnancies. But it is an abuse of high order for them to invoke the First Amendment as an exemption from the kind of government-mandated disclosure well recognized in health care and countless other contexts.

The California Reproductive FACT Act — FACT is an acronym for “Freedom, Accountability, Comprehensive Care, and Transparency — seeks to counter what critics of these so-called crisis pregnancy centers depict as their blatantly misleading practices. The law, enacted in 2015, requires centers that are licensed as medical clinics to post a notice about the availability of free or low-cost family planning services, complete with a telephone number of the local social services center. A second, narrower provision requires unlicensed centers to post a notice that they are not licensed and have no licensed medical provider on staff.

The misleading tactics by these centers — they number more than 3,000 nationwide — have been well documented in investigative news stories and in a thorough report three years ago by the abortion-rights group NARAL Pro-Choice America. The billboards, public transit ads, and online advertising all convey to women — “pregnant and scared” — a welcoming environment that offers medical services and counseling to help them through a personal crisis.

Instead, the women who visit these clinics are given misleading information about the risks of abortion and subjected to anti-abortion moralizing. Autumn Burke, the California legislator who cosponsored the bill, recalled to Newsweek that she started working on the issue after a chance visit to one of the centers in downtown Los Angeles. She spotted the clinic while on an unrelated errand and picked up an informational pamphlet from the center that repeated the discredited falsehood that abortions are linked to breast cancer.

The NARAL report, based on undercover investigations of centers in 10 states across the nation, found that counselors at what NARAL calls “fake health centers” misinform women that they will be unable to bear children in the future if they have an abortion. They also counsel women to postpone a decision on whether to have an abortion — contradicting the accurate medical advice to terminate a pregnancy as early as possible to avoid possible complications.

NIFLA calls the disclosure for licensed clinics a “compelled abortion referral” and insists that it cannot be constitutional to require a clinic opposed to abortion to provide that information to patients. It calls the other provision a “negative disclaimer” and finds it equally unconstitutional to require centers to disparage the services they offer. The arguments do not hold water. Mandatory disclosure laws often require commercial businesses to tell customers about availability of information elsewhere and often require negative disclosures about their products or services — for example, the building energy use now required for real estate transactions in many jurisdictions.

In its amicus brief defending the California law, the progressive Constitutional Accountability Center rightly argues that the measure promotes First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits. A decision to strike down the law could have ramifications for disclosure laws generally, the brief warns.

Moreover, the anti-abortion lobby is guilty of hypocrisy of the highest order in claiming a constitutional harm from government-compelled speech. Anti-abortion forces are responsible for what the Guttmacher Institute counts as 29 states that require women’s health clinics to provide various bits of false or misleading information to women planning to terminate a pregnancy. Most commonly, two-thirds of the states require women be warned of future fertility issues; among other warnings, 13 states require women be told that a fetus feels pain after 20 weeks, and smaller numbers require warnings about breast cancer or depression. Not true: any of it.

Political liberals who have long cherished freedom of speech might welcome the legal and political conservatives who now embrace free speech so enthusiastically but for their twisting of the First Amendment for political ends as seen in two high-profile cases already argued this term. In Masterpiece Cakeshop, the justices have been asked to give a commercial baker a First Amendment exemption to discriminate against a same-sex couple ordering a wedding cake. In Janus, a disaffected state employee wants a free-speech exemption from a mandatory fee to the public employee union that represents him on workplace issues.

Principled conservatives should see these for the phony free-speech claims that they are. But the arguments in the two earlier cases point tentatively to rulings by the conservative majority that exploit rather than enforce the First Amendment. A genuinely free-speech Court would have more respect for the First Amendment than to allow such abuse.

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