Can California Legally Force Pro-Lifers To Point Pregnant Women To Abortion Centers?

Can California Legally Force Pro-Lifers To Point Pregnant Women To Abortion Centers?

The First Amendment includes the right not to speak, but the California law takes that right away by forcing pro-lifers to tell women about abortion centers.
Mark Miller

When a 21-year old single, pregnant, drug user who we’ll call Julie found herself homeless and with nowhere to turn, her father’s suggestion to abort her preborn child made sense to her. Her father even scheduled an appointment for her with the abortionist. But Julie’s mother stepped in.

She knew a local organization called Mary’s Shelter that helped young women in these circumstances. After speaking with the volunteers there, Julie decided to keep her baby and move in to the shelter. She earned her G.E.D. before her baby was even born, got clean, and — as she puts it — found “a light at the end of the tunnel.” All while living with strangers who did not know her before she called them, but understood she needed help.

An organization with the motto “saving lives, two at a time,” did just that.

For years, pregnant women with nowhere else to turn have found a helping hand all across the country at facilities like Mary’s Shelter — sometimes called Crisis Pregnancy Centers (CPCs), Pregnancy Resources Centers (PRCs), or Maternity Homes. These facilities, some 2,500 or so across the country, all share the same overarching mission: to put pro-lifers’ money where their mouths are. These facilities demonstrate that pro-lifers care about the child and mother before birth and after.

The pro-choice movement fears these organizations because their existence undercuts the abortion hegemony pro-choicers seek. That is why one of the nation’s largest organization of PRCs, the National Institute of Family and Life Advocates (NIFLA), finds itself before the Supreme Court of the United States, preparing to argue its case to the nine justices of the High Court. NIFLA has challenged a California state law designed to coerce the pro-lifers at its facilities to tell pregnant women who ask for help where they can go to abort their preborn children. NIFLA will tell the justices that law violates the First Amendment rights of pro-lifers.

NIFLA is right.

This case asks whether the government can require licensed professionals to advertise services the government wishes to promote but the professionals do not. A California law, known as the Reproductive FACT Act (FACT Act), requires clinics “whose primary purpose is providing family planning or pregnancy-related services,” like the facilities described above, to deliver to each client the following message: “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.” There is an exception for clinics that actually enroll clients in these “family planning” programs, which means that the law applies only to clinics that oppose the very program — abortion — the government forces them to advertise.

The Stated Reason For The Law Does Not Hold Up To Scrutiny

The proponents of the law would have it believed that women mistakenly visit PRCs, CPCs, and maternity homes seeking abortions, because these facilities deceive the women about what they do (save lives) and don’t do (end them). But women certainly have no problem finding abortion providers in California. The Guttmacher Institute, a pro-choice institution, reports that in 2014 women obtained 157,350 abortions in California. So the numbers simply betray the proffered reason for the law.

Women in California know where to abort the unborn, and they have no problem procuring abortions at the more than 500 facilities in the state that provide them. The reason for the law does not hold up to scrutiny. That’s likely because the reason the government offers for the law is a pretext; the real reason is to force pro-lifers to pay homage to the pro-choice regime. But that reason violates the First Amendment.

The First Amendment includes the right not to speak, but the FACT Act takes that right away. The Ninth Circuit Court of Appeals refused to strike the law down, claiming the law addressed “professional speech” purportedly less worthy of First Amendment protection than other speech, despite the fact that the statute does not implicate professional speech at all. Even if the so-called professional speech doctrine has a place in our constitutional order, the speech at issue here does not fit into it.

Nor is the law defensible like state “informed consent” laws that require abortionists to inform mothers of the medical risks they face with abortion. There, the abortionist has specialized knowledge that the doctor must convey to the patient to obtain that patient’s informed consent to the procedure, just as a doctor would do before any significant medical procedure. Here on the other hand, the staff will not perform a medical procedure on a patient, thus no need for informed consent exists, and no medical justification to require pro-lifers to violate their conscience can be found — as if it ever could.

The Reckoning For Pro-Abortion Sentiments Is Approaching

2017 will be remembered as the year of the Reckoning. Women rightfully forced society to come to terms with the way some men took advantage of their power to force women to do their sexual bidding or face reprisal. Those of us who critiqued President Clinton for taking advantage of a young woman in the Oval Office may have questioned what took so long. But, nevertheless, those punished — Harvey Weinstein, Matthew Lauer, and Bill O’Reilly, among others — certainly deserved the cosmic justice they faced in 2017.

But there’s another reckoning to come, and the pace of change in modern society suggests it will come soon. By cloaking the termination of human life behind the word “choice,” Planned Parenthood, NOW, NARAL, and the Roe decision have successfully obscured the scientific reality of abortion — just as the powerful men who visited their crimes upon less powerful women obscured the reality of their offenses with their power.

The pro-choice movement has used its power to obscure what abortion entails, what abortion does to the most powerless in our society. The great civil libertarian, Nat Hentoff, had it right: “Human life is a continuum — from the implantation of a fertilized egg in the uterine lining to birth to death. Setting up divisions of this process to justify abortion — as in Roe v. Wade — is artificial. It’s a denial of biology. Whether in the fourth or 14th week, it is the life of a developing human being that is being killed.”

America waking up to the reality of abortion is the reckoning to come. Laws that prohibit partial-birth abortion have moved us towards that reckoning, because they forced society to face the reality of one type of abortion procedure. The recent wave of laws prohibiting dismemberment abortions will advance us further still. And then, when the reckoning finally comes, the law will follow where it should have in Roe. That is what the pro-abortion advocates know, and it is why they now try, with laws like the California FACT Act, to force pro-life advocates, against their will, to instruct women on where to obtain abortions. The pro-abortion rights advocates think if they force pro-lifers to tacitly endorse abortion in this manner, they can stave off the reckoning.

If you won’t sing the praises of abortion voluntarily, then we’ll make you sing the tune using the power of the state.

Or so the pro-choice legislators in California believe. But the First Amendment does not allow this abuse of state power.

I end where I began. Julie now has a four-year-old, because Julie’s mother sent her to Mary’s Shelter, where the staff told her about the beautiful life she had growing inside of her and how she had the choice to make her life better — and to save her own child’s life — if she allowed them to help her. She did. Now imagine a world where those believers in the unconscionable nature of abortion were instead forced to tell Julie where to abort her baby. Or imagine Julie approaching Mary’s Shelter, seeing a sign on the door telling her where to abort her baby, and concluding there was no room at this inn for her or her child.

That is the world abortion-rights advocates want. It is a world which rejects free speech in favor of government-compelled speech. It is a world that rejects a culture of life and instead advocates death. But it is not the world our Founding Fathers envisioned when they wrote the First Amendment.

As former Supreme Court Justice Robert Jackson said in declaring it unconstitutional to force students against their will to salute the flag: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Jackson explained that simply would not do. And so it is here. The Supreme Court should inform California it cannot force pro-lifers to offer fealty to abortion against their will.  The First Amendment does not allow it. A nation that professes to believe in freedom cannot allow it.

Mr. Miller is a senior attorney with Pacific Legal Foundation and a member of the Board of Directors for Americans United for Life. The views expressed herein are his personal views and not those of PLF.

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