Supreme Court must act to protect free speech on subject of abortion

Free speech and abortion. Some of the U.S. Supreme Court’s most important decisions have centered on one or the other of these topics. Today, the court is considering a case that implicates both, when it hears oral arguments in National Institute of Family and Life Advocates v. Becerra. The case revolves around a California law, AB 775, that requires pro-life pregnancy centers to tell women how they can obtain an abortion from the state. Centers must also provide a phone number for a county office that refers callers to Planned Parenthood and other abortionists.

Importantly, the justices are not being asked to opine on the continued legality of abortion, or related considerations such as fetal pain, autonomy or embryology. These matters are disconnected from the question before the court, namely, whether the government may force Americans to violate their conscience by speaking messages that they consider objectionable.

{mosads}This doesn’t mean, however, that abortion is irrelevant. Indeed, the court should carefully consider the enduring societal debate as it evaluates California’s attempt to influence the public discussion about abortion by targeting pro-life pregnancy centers. To understand why, consider the position abortion occupies in the moral and ideological fabric of society.

First, abortion is a moral issue. At the core, two principal views exist about abortion. The first view holds that abortion is a moral wrong. The second view maintains that abortion is, at the very least, morally permissible. Whether you “shout your abortion,” advocate for it to be “free and plentiful,” tolerate it as an option that should be “safe, legal and rare,” or stand outside Planned Parenthood facilities imploring mothers to choose life, you (implicitly or explicitly) hold one of these views.

Pro-life pregnancy centers embrace the former view. They exist for a specific reason, which is to assist mothers who want to choose life for their unborn children. They believe abortion is immoral and, therefore, seek to provide pregnant women with the resources they need to choose a different path. Accordingly, the California law forces the centers to do much more than promote the availability of state-subsidized abortions. It compels them to effectively endorse the view that abortion is morally permissible.

But the impact of the law doesn’t end with its intrusion into matters of morality and conscience, because the subject of abortion also implicates politics and policy. One need look no further than the advocacy groups on each side of the debate, or the candidates who make the issue of abortion central to their campaigns, or the frequent appearance of the abortion issue during judicial confirmation hearings. Abortion is a matter of public concern, and the California law forces pro-life pregnancy centers to deliver the state’s ideological message despite (in fact, because of) their profound disagreement with that message.

The Supreme Court has addressed the core issues presented in this case, albeit in different factual contexts. In Buckley v. Valeo, the court noted that discussion related to public issues or politics is among the “most fundamental First Amendment activities” and deserving of the “broadest protection.” The court held in Pacific Gas & Electric Company v. Public Utility Commission that “the state cannot advance some points of view by burdening the expression of others.” Moreover, in cases including West Virginia State Board of Education v. Barnette, Wooley v. Maynard and Hurley v. Irish American Gay, Lesbian & Bisexual Group of Boston, the court has demonstrated its unwillingness to tolerate any law that would force individuals and entities to express messages that violate their conscience.

The California law runs afoul of these principles. California is free to pick a side in the public debate and to prioritize messages about abortion, and the machinations of the state provide an effective means for it to disseminate such messages. But California isn’t free to force its citizens to serve as mouthpieces for its message. AB 775 does precisely that, by targeting pro-life clinics and forcing them to promote abortion.

California excuses its violation of free speech principles by comparing its law to the “informed consent” laws addressed in Planned Parenthood v. Casey. But laws requiring the disclosure of risks and alternatives related to medical interventions stand in stark contrast to the California law, which compels the speech of pregnancy centers that perform no surgeries.

This intrusion is why the subject of abortion — though not either particular position — is relevant to the Supreme Court’s analysis. The court should take a principled stand, not on the side of abortion facilities or pregnancy centers, but on the side of free speech.

James Gottry is legal counsel with Alliance Defending Freedom, which represents the National Institute of Family and Life Advocates.