Kennedy: Calif. law may present 'undue burden'

EDITOR'S NOTE: This is an expanded report to Monday's Supreme Court story.

WASHINGTON (BP) -- Free-speech and pro-life advocates left the U.S. Supreme Court Tuesday (March 20) with multiple reasons to expect the justices will strike down a California law that requires pregnancy care centers to promote abortion services.

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Supporters of pro-life pregnancy centers in the case heard a centrist Supreme Court justice, then a liberal one, signal disapproval of the measure during oral arguments. Those pointed evaluations, plus the skepticism expressed by several other justices, offered opponents of the law strong hope the threat to such centers would die in this case.

A surprise decision by the justices in support of the law could have devastating repercussions for hundreds of pregnancy care centers in numerous states. The California law at issue is part of an ongoing effort 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.

The law in question -- California's 2015 Reproductive FACT Act -- requires licensed pregnancy centers to post a notice for or otherwise inform clients in writing of the state's free or low-cost access to abortion and other family planning services. The law also mandates unlicensed centers provide a notice they are not licensed medically and do not have a licensed medical professional.

None of the four typically conservative justices on the nine-member high court signaled any agreement with the California approach during oral arguments. When Associate Justice Anthony Kennedy delivered the first strong blow against the law near the midway point of the arguments, it appeared the court's "swing vote" had tipped the scales.

Kennedy offered a hypothetical in which an unlicensed pregnancy center would display a billboard that said "Choose Life." He asked if it would have to disclose it is unlicensed and has no licensed health-care professional. When informed the disclosure would be 29 words in the same type size and in multiple languages, Kennedy said, "[I]t seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute."

Associate Justice Sonia Sotomayor, a member of the court's left wing, offered further evidence California's law may not stand near the close of the oral arguments. She proposed an ad in which an unlicensed facility posts only the word "Pro-life" and its name. That notice would require the center also to post the notice, Sotomayor was told.

"That seems to me more burdensome and wrong because it's not tied to an advertisement that is promoting medical services," she replied.

Afterward, lawyers who observed the arguments and are in support of the pro-life pregnancy centers expressed their optimism.

"Justice Kennedy seemed clearly concerned with the free speech burden" on pregnancy centers, said Mark Rienzi, president of Becket, which filed a friend-of-the-court brief in support of the pregnancy centers. "[A]nd he seemed to think [the requirement] was clearly unconstitutional, as, by the way, did Justice Sotomayor. So it was not simply justices on one side. I think they were all concerned about that First Amendment problem.

"I think the justices seemed clearly to understand the scope of the problem," Rienzi told Baptist Press. "[I]t looks like the court fully understands the problem and will probably get this one right."

Kristin Waggoner, senior vice president of the U.S. legal division of Alliance Defending Freedom (ADF), said she was pleased with what happened in the courtroom. ADF President Michael Farris argued on behalf of the pregnancy centers.

"One of the tests we use after oral argument is: Would we rather be us or them? I'm really glad to be us," she said in a Facebook video interview with the Southern Baptist Ethics & Religious Liberty Commission (ERLC). "Almost every member of the court asked at least one question that expressed some concern about what the state was saying.

"Justice Kennedy got rather upset ... with what he perceived to be the government's targeting a disfavored" organization, she said.

Michael Whitehead, a Southern Baptist lawyer in suburban Kansas City, Mo., sat in on the arguments and said Kennedy's hypothetical "became a pivotal point in the oral argument."

"There is reason to hope that most justices will find the law is, indeed, wrong, because it targets and burdens free speech of pro-life citizens," Whitehead told BP in written comments.

The ERLC signed onto a friend-of-the-court brief in support of the pregnancy centers.

Travis Wussow, the ERLC's general counsel and vice president for public policy, told BP, "Southern Baptists are dedicated to loving our neighbors as Christ loved us. This is why so many in our churches serve women and children through pregnancy resource centers offering compassionate and free care for all who walk through their doors."

The California law "targets these centers in order to force the promotion of a message antithetical to their mission," he said in written remarks. "No one should be forced to provide free advertising for the abortion industry -- least of all pro-life pregnancy centers."

The law at issue is part of a continuing effort 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. Many of these centers provide free ultrasound scans that demonstrate the humanity of the unborn child and often help women decide to give birth. The centers' services also include medical consultations, baby clothing and diapers, job training, mentoring programs, and prenatal and parenting classes.

The Reproductive FACT Act requires licensed pregnancy centers to post a notice for clients that says, "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]."

If the California law survives the legal challenge, pro-life centers would face fines of as much as $1,000 a day for defiance of its requirements. Other states with pro-choice legislatures and governors could follow California's example. Illinois and Hawaii already have enacted similar laws.

The National Institute of Family and Life Advocates (NIFLA) -- a nationwide network of nearly 1,500 pregnancy care centers -- and two pro-life centers challenged California's law. Almost 150 of the pregnancy centers NIFLA provides legal counsel, education and training to are in California.

NIFLA President Thomas Glessner told reporters after the arguments the law is about more than the abortion issue.

"[It] mandates and compels our pro-life centers to speak a message with which they fundamentally disagree," Glessner said. "If this law is allowed to happen, the very heart and soul of the First Amendment will be gone.

"Nobody should be compelled to speak a message with which they fundamentally disagree and in which their conscience is violated," he said. "This law goes far beyond the walls of pregnancy centers, goes far beyond the boundary of the state of California. For if it is upheld, everybody in this country should be concerned."

Both pro-life and pro-choice advocates rallied in the rain outside the court. Abortion-rights supporters focused on depicting the pro-life pregnancy enters as deceitful.

"For let's never forget that these fake women's health centers exist for one reason alone -- anti-choice forces could not prevail if they dealt in reality," said Ilyse Hogue, president of NARAL Pro-choice America, to her allies in front of the court. "They cannot compete without the deception. They cannot make their case about abortion or choice honestly, so they trick people into entering these clinics just to push their ideology and just to shame."

Among the organizations filing friend-of-the-court briefs in support of NIFLA and the pregnancy centers were 144 members of Congress; pregnancy care centers in California, Illinois, South Dakota and Texas; the Care Net and Heartbeat International networks; 41 family policy organizations; the state of Texas and the U.S. Conference of Catholic Bishops.

Included in organizations submitting briefs in support of the law were Planned Parenthood; the American Medical Association; the pro-assisted suicide organization Compassion & Choices; and 17 states.

In October 2016, the U.S. Ninth Circuit Court of Appeals in San Francisco -- like a federal judge before it -- refused to grant an injunction blocking the California law. In its opinion, the Ninth Circuit panel said the law does not violate the First Amendment's protections for free speech or free exercise of religion. The law "does not discriminate based on viewpoint," the three-judge panel said.

Local governments also have placed speech requirements on pro-life pregnancy centers, mandating they 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 mandates in Austin, Texas; Baltimore; Montgomery County, Md.; and New York City.

The case is NIFLA v. Becerra.

Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention's news service. BP reports on missions, ministry and witness advanced through the Cooperative Program and on news related to Southern Baptists' concerns nationally and globally.
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