In a move that set the phones and Twitter feeds of the beltway-bound swamp ablaze, Justice Anthony Kennedy announced his retirement from the Supreme Court this week. But the ensuing panic and crass hysteria has obscured the deep meaning in Kennedy’s penultimate concurrence: that the exclusion of unpopular views from our society, both legally and culturally, is eroding the ground upon which Americans can meet and work to solve our shared social problems.
Nothing better demonstrates the toxic animus that is driving us apart than the California FACT act, which the Supreme Court shut down last Tuesday in NIFLA v. Becerra, and — as Kennedy demonstrates — there is no better antidote to this toxicity than reaffirming the original public meaning of our Constitution.
The California law in question placed two requirements on crisis pregnancy centers: medically licensed centers were required to display a message advertising the availability of state-funded abortions, and unlicensed clinics were obliged to display a lengthy, multi-language disclaimer that they did not employ medical professionals, ostensibly to ensure women wouldn’t become confused. But the underlying premise of such a law requires viewing these private, charitable organizations as a menace, which the law then menaces in return.
Advocates for the law accused these pregnancy centers of providing outdated or misleading medical information and claimed that visits to a pregnancy center would discourage women from receiving timely, qualified medical services. They argued that these centers proliferate by tricking women into thinking they are abortion clinics or obstetrics offices. In a typical example, Stephanie Schriock, president of pro-abortion group EMILY’s List called them “fake health clinics” that “lie to vulnerable women, pretend to offer licensed medical providers and withhold potentially lifesaving medical care.”
In my own experience during my residency training as a family practice doctor in South Bend, Indiana, nothing was further from the truth. Far from an impediment to medical care, our local Women’s Care Center was a frequent source of referrals to our obstetric clinic, ensuring pregnant mothers received the care they needed.
I remember one patient’s story in particular. She was a 23-year-old woman and I knew her well, but I frowned when I saw her name on my schedule followed by the phrase “OB Intake Appointment.” I had delivered her previous child just a few months ago, and she had missed her follow-up appointment where we had planned to discuss more reliable methods of birth control. I opened the door to the exam room and stepped into a chaotic scene.
The harried single mother was trying to resolve a phone dispute with a local auto mechanic while feeding her baby boy. Her daughter, a memorably precocious five-year-old whom I had gotten to know well during our weekly visits, hopped up on my knee and began playing with my stethoscope. I smiled. As the mother hung up, I asked my usual question: “It’s good to see you again! How can I help you today?”
“I’m pregnant and I didn’t really believe it,” she explained, “but the lady at the pregnancy center, well, she said I should come see you.”
This patient was typical of the those the Women’s Care Center referred to me and the other physicians at my residency clinic. In South Bend at least, the fears of those opposed to pregnancy centers simply didn’t reflect the facts on the ground. The website for the local pregnancy center explicitly states, “prenatal medical care and abortions not provided,” and the counselors I’ve spoken with say the same. In fact, a visit to the local pregnancy center was often the first stop on a patient’s path to my door. While our perspectives sometimes differed, for many women, the pregnancy center offered a kind of support and existed within the community in a way that my medical office couldn’t.
When a woman faces an unplanned pregnancy, she isn’t an abstract number in the abortion debate. She is a real person who needs to be empowered to face challenges she may never have anticipated. Back in South Bend, neither my obstetric clinic nor the local crisis pregnancy center could have provided a solution to this problem alone. Because the pro-lifers in our community were free to help in accordance with their own conscience, thousands of women received counseling and early confirmation of their pregnancy who might otherwise have taken months to seek care — even if they were counseled from a perspective that differed from those who are in favor of abortion.
Daily life in a republic rests on the assumption that the public sphere is open to everyone. With the liberties protected by the first amendment, individuals are free to go about addressing the social problems in their communities as they see fit, so long as they do not infringe on the rights of others. This freedom has created a wealth of associations and volunteer groups that make our country a better place to live. Alexis de Tocqueville, that great 19th century observer of a fledgling America, commented on this characteristic, writing that “Americans of all ages, all conditions, all minds constantly unite.”
Pregnancy centers are a prime example of what Americans can accomplish when they are allowed to associate in accordance with their own beliefs. Care Net alone, one of several large associations of pregnancy centers, has saved communities more than $32 million dollars in medical treatment, along with an additional $11 million in counseling and emotional support and $6 million in diapers and child care supplies in a single year. In South Bend, our local center helps thousands of women each year. These bastions of civil society show what cooperative problem-solving on behalf of those least equipped to stand on their own looks like. But absent the even-handed application of constitutional strictures, government can be a swift force for destruction: excluding the needed contributions of the political minority and leaving vulnerable members of our society at risk.
The California FACT Act was just such a tool of political destruction. Kennedy rightly excoriates it in his opinion on the case: “This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”
This problem is emblematic of the broader state of our polity in America. As the rift in our society grows and the stakes continue to escalate, individuals of conviction will increasingly turn to the force of government to silence those they see as the enemy. Just last month, the mayor of South Bend sparked national controversy by using zoning laws to prevent the local pregnancy center from opening a new facility next to a planned abortion clinic — the very pregnancy center I remember from residency.
But the Court did its job this week, and gave needed reinforcement to the core assumptions that allow a republic of diverse individuals and viewpoints to stand. We must remember this as we face our increasingly contentious future. As Kennedy wrote:
It is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’ It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.
Kennedy is right. As President Trump seeks to find his replacement, he should ensure it is a legal scholar equally dedicated to the freedom upheld in NIFLA v. Becerra. Commitment to the equal protection of these first freedoms for all Americans is the only way to create a society where the right and left can work together to support human flourishing.
