Yesterday I had the honor of presenting argument to the 9th Circuit Court of Appeals in San Francisco on behalf of three California crisis pregnancy centers (CPC) challenging that state’s recently enacted Reproductive FACT Act. (A video of the argument can be viewed here.) Our clients, LivingWell Medical Clinic, Pregnancy Care Center North Coast, and Confidence Pregnancy Center, are nonprofit pregnancy resource centers that exist to help women facing unplanned pregnancies by offering counseling about options, pregnancy tests, limited obstetrical ultrasounds, and material assistance. All services are provided free of charge. Because our clients believe that abortion is a bad option for women, they tailor their approach in a way that focuses on encouraging women to accept the gift of new life and bring their babies to term.
The centers do not refer for or counsel in favor of abortion at any time. The new California law, however, compels them to post a sign in their waiting rooms, or hand to each potential client a notice that tells them that their state government will provide them with a free abortion (assuming they meet eligibility requirements) and tells them to call the phone number of a local social services office for more information. In other words, these centers, whose very existence is premised on a mission to discourage abortion (and encourage life) are forced – at the very outset of their contact with women in crisis – to become cheerleaders for NARAL, the co-sponsor and probable author of the FACT Act.
Along with Kevin Snider of the Pacific Justice Center and Matt Bowman of the Alliance Defending Freedom, who represent other California CPCs, we presented arguments focusing on how the FACT Act violates our clients’ Free Speech rights as protected by the First Amendment. The Supreme Court has long held that, under the First Amendment, just as government is not allowed to tell citizens what they cannot say, even so it cannot dictate to citizens what they must say. And any exceptions to this general rule require that speech restricting – or compelling – laws be subjected to (at least) exacting scrutiny that asks whether the government has tried alternative, less restrictive, ways of attaining its goals. (You can read our legal briefs here and here.) Federal courts in both New York (2d Circuit) and Maryland (4th Circuit) have, in recent years, upheld injunctions against laws similar to the FACT Act, pointing out that the government has ample means to spread its own message without conscripting crisis pregnancy centers to speak that message for them. So far, however, the lower courts in California have not followed the lead of those other courts and have denied requests for injunctions made by our clients and other CPCs. We are arguing that the 9th Circuit should reverse the lower courts and protect the First Amendment rights of the CPCs.
Some of the questions from the Court at yesterday’s argument highlighted that the State of California really doesn’t appear to have given much thought to alternative ways to get its message out about public assistance available for so-called “reproductive services” such as abortion. Rather, urged on by the abortion partisans of NARAL, the State has chosen to sacrifice the First Amendment freedoms of abortion opponents by forcing them to act as ventriloquist’s dummies for a message they consider harmful to the women they seek to help.
We are cautiously optimistic that – whether at the 9th Circuit or, if necessary, at the Supreme Court of the United States – the First Amendment rights of California’s CPCs will be vindicated.
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