Supreme Court To Decide If Withholding Abortion Information Is A First Amendment Right

Marie Solis

The Supreme Court on Monday chose to take a case that will decide whether a California law requiring crisis pregnancy centers to provide women with abortion information violates the First Amendment.

The pro-life National Institute of Family and Life Advocates claims the state law infringes on its rights to free speech by compelling members to tell women about the availability of a procedure the organization fundamentally opposes. 

The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the law in October 2016, saying it passed constitutional muster because access to abortion and contraception is a matter of public health. The judges also said the National Institute of Family and Life Advocates provided incomplete information about abortion services.

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Crisis pregnancy centers are arguing a California state law requiring them to provide women with information about abortion infringes on their First Amendment rights. Sandy Huffaker/Reuters

In the face of these practices, a law requiring centers to provide factual information about reproductive health seemed necessary, the court ruled. 

"Given the Legislature’s findings regarding the existence of [the centers], which often present misleading information to women about reproductive medical services, California’s interest in presenting accurate information about the licensing status of individual clinics is particularly compelling," Judge Dorothy W. Nelson wrote at the time


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But a First Amendment expert worries about the implications of government-mandated abortion talks.

"From a pure First Amendment standpoint: Compelling our speech would seem to compel our ideas," Gene Policinski, chief operating officer of the Newseum Institute's First Amendment Center, told Newsweek. "To me, that's antithetical to free speech."

He added: "We want to be very cautious about the government stepping in on our behalf. That gives the government a larger role than our founders intended."

Policinski pointed out, though, that there have been times when the Supreme Court has ruled in the government's favor, allowing the state or federal government to compel speech. The surgeon general's warnings on cigarette packs are a classic example of government-compelled speech that "we see as protecting the consumer," Policinski said. He also cited the Supreme Court's ruling on a 2005 free speech case that required cattle producers to pay a government-required fee for generic advertising.  

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Nelson, the judge who wrote the statement on the Ninth Circuit's decision on abortion info, argued the California law is no more harmful than similar laws approved by the Supreme Court, in that it is not necessarily "compelling ideas."

"The notice informs the reader only of the existence of publicly funded family-planning services," Judge Nelson wrote. "It does not contain any more speech than necessary, nor does it encourage, suggest or imply that women should use those state-funded services."

Pro-choice groups say the law only serves to protect residents. 

“The Supreme Court should affirm the Ninth Circuit’s ruling and safeguard every person’s right to accurate medical information, free from bullying, shame, and deception," Dawn Laguens, executive vice president of Planned Parenthood Federation of America, told Newsweek in a statement. "Everyone deserves to have support, compassion, and unbiased information to make the pregnancy decision that’s best for their health and well-being."

If the Supreme Court sides with California, it could be a huge step in regulating centers like the National Institute of Family and Life Advocates, which are notoriously tricky to manage. Crisis pregnancy centers, which pro-choice advocates call "fake abortion clinics," often dodge legal troubles by citing free speech rights. There are about 4,000 of these centers across America, which is nearly five times the number of actual abortion clinics nationwide. 

In 2012, the Fourth Circuit Court of Appeals struck down a law in Baltimore that required crisis pregnancy centers to post fliers in their waiting rooms disclosing that they can't provide clients with abortion or birth control-related services. Fourth Circuit judges ruled that the city mandate amounted to "compelled" speech.

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