Supreme Court Opinion on California Abortion Notice Law May Have Unintended Consequences
By KrisAnne Hall, JD
In a case titled NIFLA, ET AL. v. BECERRA, the supreme Court is asked to opine on whether Beccera’s injunction to stop enforcement of California’s FACT Act should be granted or not. California’s FACT Act requires pro-life clinics to inform their clients on how and where to get abortions. This government forced message, Beccera claims, is unquestionably contrary to their practices and beliefs and is therefore a violation of their freedom of speech. The supreme Court rightly agrees with Beccera and grants the injunction and sends the case to the lower courts to finish its legal process.
This is a victory for freedom of speech and also for the unborn’s right to life. However, it may have some unintended consequences for pro-life supporters. Justice Clarence Thomas writes in the majority opinion:
“Content-based regulations “target speech based on its communicative content.” As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
Thomas remarks that California’s licensed notice is a content-based regulation of speech. Since this particular notice is forced upon clinics like Beccera’s, who are morally opposed to abortion, this particular notice only serves to “alte[r] the content of [their] speech.”
Justice Breyer, writing for the dissent, claims that the government has traditionally held the power to regulate speech through professional licensing and this case should be no different. However, Justice Thomas reasons that speech is not unprotected merely because it is uttered by “professionals” therefore the California law cannot force pro-life clinics to include government scripted instructions about abortion. Justice Breyer remarks in the dissent that this opinion, depending upon how it is applied, could have widespread ramifications on many laws currently in place requiring certain businesses to supply clients with government scripted notices. This point made by Breyer is where pro-life advocates may find that they have won this case, only to lose another.
Many States have laws on the books that require abortion clinics, both public and private, to provide brochures on alternatives to abortion. Many States have laws forcing these abortion clinics to provide ultra-sound services along with instruction about the developmental stages of the baby in the womb. These are also government scripted notices forced upon these clinics contrary to their practices and beliefs. If these abortion clinics were to challenge these laws forcing the pro-life message, under this precedent the high Court would also have to overturn those pro-life message laws.
This judicial tit for tat is what happens when people use the force of government to promote personal messages. As Thomas so clearly points out in the majority opinion, the pro-abortion proponents could easily inform the women about its services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaigns. To be consistent in their opinions, the majority would have to say the same thing about government forced pro-life practices and messages. This means that both parties will have to use non-governmental methods to inform the public about their services rather than relying on the force of government to promote their message.
The irony is that the supreme Court seems unanimous to a certain degree that freedom of speech deserves the highest level of protection, however, the life of an unborn child does not.