In keeping with the recent deluge of dangerous Supreme Court decisions—all of which promise to undercut civil rights in the workplace and elsewhere in this country—the highest court in the land decided National Institute of Family and Life Advocate v. Becerra on June 26. The petitioner in this case was a faith-based organization that provides legal advice to Crisis Pregnancy Centers (CPCs), which are nonprofits established to counsel pregnant women against having abortions. In safeguarding these CPCs and helping them achieve “medical clinic status,” NIFLA hopes to achieve its vision to create “an abortion-free America.” The conservative justices on the Supreme Court, by and through their decision, have now empowered NIFLA to more easily realize that vision by sanctioning what essentially amounts to legalized fraud.
The statutory issue addressed by NIFLA v. Becerra was whether or not two sections of a California law violated the First Amendment. The statute, known as the FACT Act (Freedom, Accountability, Comprehensive Care and Transparency Act), requires pregnancy facilities to inform all clients that: a) California has public programs which provide immediate free or low-cost access to comprehensive planning services, prenatal care, and abortion, for eligible women; and b) that particular facility is not a licensed medical facility under California law. Failure to comply with these commonsense measures would incur a civil penalty.
Not anymore. In a 5-4 decision, the conservative Justices found that the requirements of the FACT Act violated the CPCs First Amendment right. Justice Thomas penned the majority opinion, wherein he posited that, among other nonsensical arguments: “…a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government.” (19) Of course, notwithstanding the undeniable ambiguity surrounding the implications of the “Choose Life” imploration—i.e. whose life?—the text which would accompany their slogan is not a “message from the government”, but instead necessary medical information. The ‘slippery slope’ argument has rarely been more applicable. If disclosures like the one at issue are rendered unnecessary, then what other disclosures could be next?
The mandate that unlicensed pregnancy centers disclose to their clients that they are unlicensed brings this issue sharply into focus. Imagine if there was no legal obligation to disclose whether or not someone attended medical school, yet they passed themselves off as a licensed medical practitioner; certainly, the legal system would take issue with that failure to disclose?
The difference, Justice Thomas would have us believe, is that the public debate surrounding abortion—that is, the fact that there exists a political division drawn between those in the so-called ‘pro-life’ and ‘pro-choice’ camps—designates any speech connected to this issue as political speech. In so doing, any attempt to crack down on that speech can be represented as a tyrannical imposition of the state and federal governments. It escapes me, though–and it should escape you–how informing the public of programs and resources available to them constitutes such tyranny.
In his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Breyer pointed out that the court had previously ruled contrary to their stated intention of safeguarding the First Amendment. In Planned Parenthood of Southeastern Pa. v. Casey, the court upheld a state law requirement for doctors to tell any woman considering an abortion, among other things, about “the ‘probable gestational age of the unborn child,’ and the availability of printed materials describing the fetus, medical assistance for childbirth, potential child support, and the agencies that would provide adoption services.”
The victims of this decision are, quite obviously, women, especially in low-income situations. These women specifically were the intended beneficiaries of the original Act, who might not be aware of publicly-accessible reproductive health resources. These women and their families will now be subjected to misrepresentation and intentional omission of information that would have empowered them to take all of their options into consideration.
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