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Pro-life free speech defended by ERLC to high court

WASHINGTON (BP) — A California law requiring pro-life pregnancy centers to publicize abortion services is unconstitutional, government-compelled speech, the Southern Baptist Ethics & Religious Liberty Commission and other organizations have told the U.S. Supreme Court.

If the justices uphold the California law, pro-life centers would be forced to notify their clients of the availability of abortion services elsewhere or face a fine of as much as $1,000 a day.

The Supreme Court announced Wednesday (Jan. 24) it would hear oral arguments in the case March 20. The justices are expected to issue a ruling before they adjourn in late June or early July.

The ERLC and the other groups filed their friend-of-the-court brief Jan. 16.

ERLC President Russell Moore said, “The outrageous demands being made in this case strike at the very heart of the freedom this nation has always sought to uphold and protect. Time and again, we see the abortion industry maneuvering to silence any and all dissent that would threaten their industry of death.

“I’m hopeful the Supreme Court will rule against these efforts that aim to steamroll groups serving vulnerable women,” Moore told Baptist Press in written comments.

California’s 2015 Reproductive FACT Act, as it is known, is part of an ongoing effort by abortion-rights advocates and their lawmaking allies in cities and states to limit the impact of pro-life centers that provide free services to pregnant women. With the aid of ultrasound machines that demonstrate the humanity of the unborn child, pro-life centers are helping women decide to give birth. The centers’ services also include medical consultations, baby clothing and diapers, job training, mentoring programs and prenatal and parenting classes.

The ERLC joined the National Association of Evangelicals, Concerned Women for America, National Legal Foundation and Samaritan’s Purse in the brief.

The California legislature in its findings regarding the Reproductive FACT Act “showed disapproval of the anti-abortion message of the pregnancy centers and the desire to rein in that speech by compelling the centers to declare a pro-abortion message,” the brief says.

The ERLC and the other organizations point out that various federal courts of appeals disagree on what standard of review to use in “compelled speech cases involving abortion notices.” They argue the high court should apply strict scrutiny as the uniform standard, which is the highest standard in the U.S. legal system, requiring the government to show it has a “compelling interest” and is using the least restrictive means to limit a constitutional right.

California’s law “compelling pro-abortion speech at pregnancy centers committed to a pro-life viewpoint does not satisfy strict scrutiny and is, therefore, unconstitutional,” the organizations contend.

The brief also says abortion cases should have the same standard as other speech cases. “No special carve-out for abortion should be made to free speech law,” according to the brief.

“Even were it to be assumed that California has a compelling interest in encouraging abortions, there is no governmental need to have the message conveyed by those who are morally opposed to it,” the ERLC and its allies say in the brief.

The state “has ample alternative methods to advertise its free abortion services,” the brief says. “Its forcing private parties to communicate [California’s] message is unjustified and unjustifiable.”

The ERLC and its allies explain in the brief, however, some laws — such as those that require a woman’s consent before she undergoes surgery — “serve compelling interests.” Such compelled speech laws need not be deemed unconstitutional, they say.

The National Institute of Family and Life Advocates (NIFLA) — a nationwide network of more than 1,400 pregnancy care centers — and two pro-life centers challenged the law. More than 100 of the pregnancy centers to which NIFLA provides legal counsel, education and training are in California.

The Reproductive FACT Act requires licensed pregnancy centers to post a notice for clients that says, “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

The law also mandates each unlicensed center provide notice that it “is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

Under the law, a penalty for a first-time offense is $500, while each subsequent violation can result in a $1,000 fine.

In October 2016, the U.S. Ninth Circuit Court of Appeals in San Francisco — like a federal judge before it — refused to grant an injunction blocking the California law. In its opinion, the Ninth Circuit panel said the law does not violate the First Amendment’s protections for free speech or free exercise of religion. The law “does not discriminate based on viewpoint,” the three-judge panel said.

Illinois and Hawaii have enacted laws similar to California’s.

Local governments also have placed speech requirements on pro-life pregnancy centers, mandating they post signs, for instance, that say they do not provide abortions or contraceptives or make referrals for the services. Courts have invalidated all or most of such mandates in New York City; Baltimore; Montgomery County, Md.; and Austin, Texas.

The ERLC aids gospel-focused pregnancy centers through its Psalm 139 Project, which provides funds to purchase and place ultrasound machines in such centers.

The case is NIFLA v. Becerra.