Symposium: If Justice Kennedy thought Colorado was “neither tolerant nor respectful” of a baker’s religious beliefs, how will he feel about California’s attack on pro-life pregnancy centers?

John J. Bursch is the founder of Bursch Law PLLC, a Michigan-based appellate boutique. He submitted an amicus brief in support of the crisis pregnancy centers’ cert petition in National Institute of Family and Life Advocates v. Becerra.

The Supreme Court is taking an unusually hard look at government-compelled speech this term. The recent oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was our first window into what the justices are thinking, and how they might view National Institute of Family and Life Advocates v. Becerra, the upcoming argument involving California’s Reproductive FACT Act.

For those who have taken a long sabbatical from all legal news, the Masterpiece case involves cakeshop owner Jack Phillips, who sketches, sculpts and paints cakes as art. Phillips serves all customers, but because of his faith, he cannot express every customer’s message. He will not create cakes with vulgar language or slurs. He will not create cakes with Halloween themes. And he will not create custom-made cakes to celebrate a same-sex wedding ceremony, because he believes that God ordained marriage between one man and one woman.

The case began when a same-sex couple entered Phillips’ shop and asked him to create a cake for their wedding ceremony. Phillips told the couple that he would sell them any pre-made cake he had in his cooler; he would also sell them cupcakes or cookies or brownies or anything else on his shelf. But he could not custom-design a cake for their ceremony because of his religious beliefs. The declination resulted in a government order that compelled Phillips to make the cake, undergo sensitivity training with his employees — many are family members — and report regularly to the commission regarding his compliance.

At oral argument, in response to Colorado’s argument that Phillips had engaged in discrimination, Justice Anthony Kennedy gave a rather stern civics lecture about the importance of tolerance:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

Kennedy’s rebuke of Colorado brings us to NIFLA and California’s Reproductive FACT Act. The act targets non-medical, unlicensed pro-life organizations that provide emotional and financial support to pregnant mothers who elect to keep their babies rather than abort them. The act requires these organizations to provide extensive, written disclaimers stating that they are not licensed medical organizations, and it requires licensed medical centers that do not provide abortion to provide written notice to all clients about how the clients can obtain a state-funded abortion. These obligations are not imposed on any other organizations and are only targeted at those committed to fostering life from conception.

The act is one of numerous pro-choice laws California has enacted. California clinics and healthcare providers are prohibited from giving parents any information about their children’s medi­cal treatment, questions or prescriptions for contracep­tion unless the child consents. Minors can also obtain an abortion without notifying their parents or any other adult. If a minor is unable to pay, California will provide the funding. California has enacted statutes that “protect” pregnant mothers from pro-life counselors who seek to communicate truthful information about the conse­quences of abortion. And a 2014 California law dramatically expanded the supply of abortion providers in California by authorizing nurse practitioners, certified nurse midwives and physician assistants to perform first-trimester abortions through “vacuum aspiration,” a procedure in which a suction catheter is inserted in utero to extract a preborn baby. In the words of the National Abortion Federation’s president, this law cements California’s reputation as “the gold standard” for access to abortion.

In thinking about California’s compelled-speech law for pregnancy resource centers and Kennedy’s lecture to Colorado in the Masterpiece case, one can’t help but be reminded of the Supreme Court’s poetic 1943 statement in West Virginia Board. of Education. v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, national­ism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”

It seems likely, then, that Kennedy will conclude that such orthodoxy is precisely what California politicians prescribed with the Reproductive FACT Act. The act was passed with the admitted purpose of targeting pro-life pregnancy resource centers — whose views often flow from their religious faith — based on the centers’ viewpoint that “discour­age[s] abortion.” The act forces the centers to be spokespersons for the abortion industry via compelled speech — specifically, the posting of notices directing women how to obtain a state-funded abortion, and the required utterance of the obvious fact that the centers do not provide medical treatment. The second provision is a command to dissuade clients; the first is anathema to organizations whose religiously motivated speech and conduct are intended to save lives, not to take them.

In 2013, in Agency for International Development v. Alliance for Open Society International, the Supreme Court said that the government could not condition funding on a recipient’s promise to express a message; had such a policy been enacted as a direct speech regulation, it would “plainly violate the First Amendment,” because “freedom of speech prohibits the govern­ment from telling people what they must say.” Yet telling pregnancy resource centers what they must say is the Reproductive FACT Act’s entire purpose.

Perhaps the most famous of the Supreme Court’s decisions involving government-compelled speech is Wooley v. Maynard, the 1977 citizen challenge to New Hampshire’s statute making it a crime to obscure the words “Live Free or Die” on the state’s license plates. As it struck down the New Hampshire statute, the court recognized that a “system which secures the right to proselytize religious, politi­cal and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” In other words, the “right to speak and the right to refrain from speak­ing are complementary components of the broader concept of ‘individual freedom of mind.’”

Describing New Hampshire’s requirement, the Supreme Court noted that it had the effect of “requir[ing] [state citizens to] use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.” Such coercive conduct is unconstitutional: “The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

The Wooley court acknowledged New Hampshire’s professed interest in requiring the license-plate speech — promoting appreciation of history, individual­ism and state pride — but did not find the interest sufficiently compelling to justify the regulation. “[W]here the State’s interest is to disseminate an ideol­ogy, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.”

It is difficult to escape the conclusion that, notwithstanding California’s protestations that pregnancy resource centers engage in misleading advertising, the Reproductive FACT Act was motivated by an interest in disseminating a pro-choice ideology. As a result, California can expect tough sledding at the argument, which will likely take place in late February. You can almost hear Kennedy: “It seems to me that California has been neither tolerant nor respectful of these centers’ religious beliefs. Did you not hear what I said on this topic in Masterpiece?!”

Assuming NIFLA prevails, the aftermath may actually be more interesting. Some commentators have suggested that if California cannot force pregnancy resource centers to proclaim how to procure a government-paid abortion, then pro-life states cannot force abortion clinics to conduct ultrasounds and provide truthful information about the growing baby at its particular gestational age. There is some intuitive appeal to that suggestion, but it fades with a little more consideration. Abortion clinics engage in surgical medical procedures. If the government cannot force doctors and surgeons to disclose truthful, relevant information about a medical procedure so the patient can make an informed decision, then we all have big problems. In contrast, the entire purpose of a pregnancy resource center is to support a mother in her choice not to undergo a medical procedure. Hence the difference in what the government can require.

Regardless, the Reproductive FACT Act is unlikely to stand.

Posted in: Symposium before the oral argument in NIFLA v. Becerra, Featured

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