In a 5-4 decision marking an important win for pro-life groups, the Supreme Court held that pro-life counseling centers are entitled to say “no” to government pressure to publicize abortion.
In doing so, as its 2017-2018 term neared it close, the court also provided a limited but potentially useful precedent for protecting the right of churches, and religious institutions generally, to preach and teach messages that clash with government policies.
Facts of the case
Unsurprisingly, the outcome in the case National Institute of Family and Life Advocates v. Becerra reflected the familiar 4-4 split in the court between conservatives and liberals, with Justice Anthony Kennedy, as so often before, the swing vote.
The majority opinion backing the counseling centers was written by Justice Clarence Thomas, joined by Chief Justice John Roberts and Justices Kennedy, Samuel Alito and Neil Gorsuch.
Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Breyer wrote the dissenting opinion, in which the other three joined.
The case focused on as many as 200 pregnancy counseling centers in California operating under religious auspices. They were represented before the Supreme Court by lawyers with the Alliance Defending Freedom.
At issue was a state law called the FACT Act adopted in 2015 by the California state legislature requiring licensed pregnancy counseling centers to post notices reminding clients of the availability elsewhere of “free or low-cost access to” abortion and contraception. Unlicensed centers were required to call specific attention to the fact that they are not medical facilities.
Lower courts, including the U.S. Court of Appeals for the 9th Circuit, upheld the FACT Act and ruled against the centers. The state was represented in the litigation by California Attorney General Xavier Becerra.
In his majority opinion, Justice Thomas called the notice that the licensed centers were required to post an impermissible “content-based regulation of speech” in likely violation of the First Amendment.
Noting that the law required pro-life clinics to provide a “government-drafted script” advertising the availability of abortion — “the very practice that the petitioners are devoted to opposing” — he said the notice requirement “plainly ‘alters the content’ of petitioner’s speech” in conflict with earlier rulings by the court.
As for the requirement that unlicensed centers post notices specifically saying they are not medical facilities, Justice Thomas said it “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”
First Amendment freedom
A separate concurring opinion by Justice Kennedy — joined by Chief Justice Roberts and Justices Alito and Gorsuch — stressed that the situation in this case is “a matter of serious constitutional concern” even though the constitutional question was not developed sufficiently in arguing the case to base the decision on it.
Justice Kennedy called the FACT Act a classic 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. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.”
|Bishops Support Ruling
Cardinal Timothy M. Dolan of New York, chair of the U.S. Conference of Catholic Bishops’ (USCCB) Committee on Pro-Life Activities, issued the following statement praising the Supreme Court Ruling National Institute of Family and Life Advocates v. Becerra:
“In an important victory for the free speech rights of pro-life organizations, the Supreme Court today has affirmed that that the First Amendment protects the right of all organizations to choose for themselves not only what to say, but what not to say. This includes allowing pro-life pregnancy care centers to continue providing life-affirming support to both mother and child without being forced by governments to provide free advertising for the violent act of abortion in direct violation of the center’s pro-life convictions. The decision is an important development in protecting pro-life pregnancy centers from future efforts to compel speech in violation of their deeply held beliefs.”
Noting that the California legislature in its official history called the FACT Act an example of “forward thinking,” Justice Kennedy wrote: “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian governments as the Founders 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 forward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.”
The United States Conference of Catholic Bishops was among the groups filing friend of the court briefs in the California case. Joining in that brief were the California Catholic Conference, the Catholic Health Association of the United States, the Lutheran Church-Missouri Synod, the Christian Legal Society and Agudath Israel of America.
Stressing the broad implications of the case, the groups said it was “not principally about abortion.”
Religious groups frequently advocate “countercultural” views not only on matters pertaining to sexuality but also on many other issues — for example, the proper treatment of undocumented immigrants, they said — and governments often respond by trying to “impose their own values — and desired messages — on religious organizations.”
Arguing that the ruling by the 9th Circuit Court of Appeals upholding California’s FACT Act would “invite and facilitate such compulsion,” the brief called that lower court decision “a wrecking ball aimed at First Amendment rights enjoyed, not just by religiously-affiliated pregnancy centers, but by all institutions of faith.”
In another action the day before the ruling in the pregnancy counseling centers case, the Supreme Court, acting without comment, directed the state supreme court in Washington to take another look at the case of a florist in Richland, Washington, whom it found guilty of violating state anti-discrimination law by refusing to provide flowers for a same-sex wedding.
The florist, Barronelle Stutzman, said doing that would violate her religious convictions in opposition to same-sex marriage.
In telling the state court to reconsider Stutzman’s case (Arlene’s Flowers v. State of Washington), the Supreme Court said the lower court should do so in light of its June 4 decision upholding a Colorado baker who refused — also on religious grounds — to bake a wedding cake for a same-sex couple (Masterpiece Cakeshop v. Colorado Civil Rights Commission).
In that case, which it decided 7-2 in favor of the baker, the Supreme Court said Colorado’s civil rights commission had shown anti-religious bias in its treatment of him — grounds for reversing its action. Attorneys in Arlene’s Flowers told the Supreme Court the florist had been the target of similar bias.
In neither of these cases has the Supreme Court yet reached the constitutional heart of the matter: the argument that the refusal of suppliers of goods and services to participate in same-sex weddings on religious grounds itself enjoys First Amendment free speech and religious liberty protection.