State Court Declares California Pro-Abortion Speech Law Unconstitutional

Yesterday, a California state court dealt a hard and swift blow to that state’s unlawful efforts to coerce the speech of pro-life pregnancy care centers.

The Reproductive FACT Act, as explained in more detail here, requires that licensed pregnancy centers inform their clients that might be eligible for a free or low-cost abortion—no matter the reason for their visit.  The mandated notice not only forces pro-life centers to tell their clients about these state-funded services, the centers must also share with their clients a telephone number where they can obtain more information about the possibility of obtaining a free (taxpayer expense paid) abortion.

Thankfully, one court has now told the State of California that the law violates its own constitution.  

In a forceful decision issued yesterday in the case of Scharpen Foundation v. Harris, Judge Gloria Trask of Riverside County Superior Court ruled that the FACT Act violates the California Constitution’s guarantee of free speech.

Rejecting the notion, advanced by the State, that the Act is merely a way of providing women with factual information, Judge Trask wrote:

The State is requiring more than informed consent. The statute requires the clinic to give information to a woman at the start of her relationship with the clinic. Women who come to the clinic and are found not to be pregnant must be told of the availability of abortion. Women who find out they are pregnant and are thrilled to be so must be told about abortion. Women with unplanned, but not unwanted pregnancies must also be told. The State inserts itself into the private and sensitive relationship between a woman and her physician.

Judge Trask also held that just because the State has the authority to provide abortion services does not mean it has the right to conscript its citizens in advertising those services:

[The State] may enact law that support abortion access and tax its citizens to make abortion available. It can require informed consent for all medical procedures. But its ability to impress free citizens into State service in this political dispute cannot be absolute; it must be limited. . . .

The statute compels the clinic to speak words with which it profoundly disagrees when the State has numerous alternative methods of publishing its message.

Finding that the FACT Act could not survive any level of judicial scrutiny—rational, intermediate, or strict—the court held that the law violates the California Constitution. It ruled further that the Attorney General and local counsel are permanently barred from enforcing the law against the Scharpen Foundation, a pro-life pregnancy center.

Serving as co-counsel for the Scharpen Foundation, along with Bob Tyler and Nada Higuera of Advocates for Faith and Freedom, we are thrilled with this victory in defense of free speech and the sanctity of human life.

We now await word from the U.S. Supreme Court on whether it will grant our petition for writ of certiorari and take up the case of LivingWell Medical Clinic, Inc. v. Becerra, regarding the constitutionality of the FACT Act under the First Amendment to the U.S. Constitution.

We will not rest until the rights of every one of our clients, in both state and federal court, are fully and completely vindicated.