ERLC joins Supreme Court brief for pro-life centers

WASHINGTON (BP) -- The Southern Baptist Convention's ethics entity has joined with other organizations in urging the U.S. Supreme Court to protect fully the free speech of pro-life pregnancy centers.

The Ethics & Religious Liberty Commission (ERLC) and three other groups signed on to a friend-of-the-court brief filed by the Christian Legal Society (CLS) calling for the high court to review a lower-court decision they say restricts the freedom of speech guaranteed by the First Amendment. The justices will be considering whether to accept the appeal by a California pregnancy care center.

The case, First Resort v. Herrera, involves a San Francisco ordinance that bars a pregnancy center that does not perform or refer for abortions from making "untrue or misleading statements." The city proposed that First Resort -- which operates Support Circle Pregnancy Clinics -- violated the law by having a "paid Google search link" that enabled its website to appear in searches for "abortion in San Francisco."

The Ninth Circuit Court of Appeals in San Francisco ruled against First Resort, saying the pregnancy center's speech qualifies as commercial, not ideological or religious. Commercial speech receives less protection under the law.

The case demonstrates the ongoing effort in recent years by abortion-rights advocates and their lawmaking allies in cities and states to limit the impact of pro-life centers that provide free services to pregnant women. With the aid of ultrasound machines that demonstrate the humanity of the unborn child, pro-life centers are helping women decide to give birth.

ERLC President Russell Moore told Baptist Press, "Time and again, we see the abortion lobby simultaneously hide from scrutiny and accountability all the while maneuvering to silence any and all dissent that would threaten their industry of death.

"In this case, the one-sided demands being made of these clinics are deeply un-American and wrong," Moore said in written comments. "I am hopeful the court will act in a manner that protects freedom instead of forcing organizations to promote the predatory industry seeking to exploit the very women they are seeking to serve."

Kim Colby, director of CLS’ Center for Law and Religious Freedom, told BP, “The proliferation of state laws and city ordinances regulating pro-life pregnancy centers demonstrates the lengths to which the pro-abortion forces will go to silence pro-life voices in the public square.

“The pro-abortion forces do not want women to have the facts about abortion,” and they know a woman is more likely not to abort “after she hears her baby's heart beating” and “if she knows that someone will walk alongside her, and help her, if she chooses life for her child,” Colby said in an email interview.

The Supreme Court's consideration of whether to rule on First Resort's appeal comes as the justices prepare for oral arguments in a similar case. The high court will hear arguments March 20 in National Institute of Family and Life Advocates (NIFLA) v. Becerra, which involves a California law that requires pro-life pregnancy centers essentially to publicize abortion services by posting notices about public programs that offer the procedures for free or at little cost.

In the brief filed March 2, the ERLC joined CLS and its allies in calling for the Supreme Court to review and rule in the First Resort case to demonstrate that "speech that counsels women on alternatives to abortion ... should receive full First Amendment protection, not the relaxed form governing commercial speech." The brief encourages the justices to grant review or hold the appeal while the court awaits its own decision in the NIFLA case.

The brief says the high court needs to clear up confusion in the lower courts on the definition of commercial speech. The Ninth Circuit has adopted the broadest definition of commercial speech, the brief says.

By its "breathtaking expansion" of commercial speech, the Ninth Circuit's decision conflicts not only with other appellate circuits but previous high court opinions as well, according to the brief. The Ninth Circuit "contravenes several of [the Supreme] Court's decisions concerning the speech rights of churches and charitable organizations," the brief says. "The Ninth Circuit's standard leads to treating ideological speech, at the core of the First Amendment, as commercial speech."

The high court "has long protected churches and religious outreach from being deemed commercial enterprises," according to the brief.

First Resort's speech is not commercial, despite the Ninth Circuit's ruling, just because its work includes services that have "monetary value," the brief says. "A wide range of nonprofit organizations and ministries provide free goods or services that have 'monetary value.' Many of these organizations operate directly in or through churches; others have a religious affiliation; still others are secular."

The brief says, "Today it is pro-life pregnancy counseling centers that hostile government officials aim to restrict, in San Francisco and elsewhere. Tomorrow it may be immigrant or refugee-services centers in states or localities hostile to immigration, or food pantries or homeless shelters in comfortable suburban neighborhoods."

Colby told BP, “Under the Ninth Circuit's reasoning, activities of religious congregations and charities -- for example, food pantries, counseling services and refugee services -- become commercial speech and, therefore, subject to governmental regulation, if they provide a service that has ‘economic value’ even when that service is provided for free. This is government overreach at its worst: regulating religious charities' speech and activities that serve those in need.”

In addition to the ERLC, Democrats for Life of America, the Institutional Religious Freedom Alliance and Lutheran Church-Missouri Synod signed on to the CLS brief.

In addition to California, Illinois and Hawaii have enacted laws similar to the one the Supreme Court will hear a challenge to in the NIFLA case.

San Francisco is not the only city to regulate pro-life pregnancy centers. Some local governments have mandated pro-life centers post signs, for instance, that say they do not provide abortions or contraceptives or make referrals for the services. Courts have invalidated all or most of such requirements in Austin, Texas; Baltimore; Montgomery County, Md.; and New York City.

The ERLC aids Gospel-focused pregnancy centers through its Psalm 139 Project, which provides funds to purchase and place ultrasound machines in such centers. The centers typically provide a variety of free services, including medical consultations, baby clothing and diapers, job training, mentoring programs, and prenatal and parenting classes.

Tom Strode is the Washington bureau chief for Baptist Press, news service of the Southern Baptist Convention.
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