On Monday, November 13, the Supreme Court granted a writ of certiorari for the case National Institute of Family and Life Advocates v. Becerra. At its core, Becerra is a free speech case involving disputes over crisis pregnancy centers, access to abortion and exactly how access should be restricted.
The question this case raises is the following: Do the disclosures required by the California Reproductive FACT Act (AB 775) violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment?
Currently, California’s Reproductive FACT Act, “[I]mposes mandatory disclosure regulations on all crisis pregnancy centers throughout California, requiring them to post notices with information about free or low-cost reproductive services in the State, and whether the CPC is a licensed medical facility.” The typical crisis pregnancy center (CPC) is a Christian, pro-life nonprofit that offers counseling and various services during pregnancy to women free of charge. The ultimate goal of crisis pregnancy centers is to extend a helping hand to those in need and who may be contemplating an abortion. Because the mission of CPCs, like the National Institute of Family and Life Advocates, is to reduce the number of abortions performed, there is a direct and serious tension between the mission of the organization and what AB 775 calls for CPCs to disclose.
CPCs believe abortion to be murder. Along that same train of thought, CPCs maintain that AB 775 requires them, against their conscience, to advertise for the abortion industry. In effect, CPCs believe that the state is coercing their organizations to advertise for something they do not believe in.
Those in favor of AB 775 believe this law is necessary to combat either false or misleading information regarding abortion. In the United States Ninth Circuit Court of Appeals, the law was upheld unanimously. The panel’s decision, crafted by Judge Dorothy Nelson, stated, “The notice informs the reader only of the existence of publicly funded family-planning services,” and, “It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services.”
However, the question remains: Does AB 775 actively restrict CPCs right to free speech and the freedom of their religious conscience, or does it act within reasonable standards to regulate organizations they deem necessary to regulate? According to the Executive Director of NATO, Thomas A. Briant, “When the government mandates that an individual or a company make a statement that a person or corporation would otherwise not make if given a choice, then the law requiring the statement alters the content of speech. This is known as ‘compelled speech,’ and the Supreme Court has ruled that this form of speech is presumptively unconstitutional.” Just this first half of the statement proves that the government is overstepping the bounds of free speech and the freedom of religious conscience.
The statement continues, though, “This does not mean that the government is prohibited from compelling companies to make certain kinds of statements in their advertisements or about their products.” If one were to reduce the importance and complexity of the issue of abortion down to the level as the advertisement of products and just compare this half of Briant’s statement with AB 775, it would appear that based on past precedent the government has the ability to mandate CPCs to provide clients with information regarding abortion options. However, because the issue of abortion cannot be equated to that of common occurrences and regulations in the market due to religious, moral and ethical factors, the Supreme Court will be forced to balance the government’s ability to compel private organizations to “use certain kinds of statements” with the freedom of both speech and religious conscience of private CPCs.