If you operate a charity that informs women that there are alternatives to abortion, California wants to close its Golden Gate to you. If your nonprofit organization provides women with free over-the-counter pregnancy tests and diapers instead of abortion, don’t expect an “aloha” from Hawaii’s lawmakers. And if you want to help pregnant women with anything other than the directions to the nearest abortion clinic, Illinois’ legislature says Chicago — or Peoria or Springfield — is not your kind of town.
Each of these blue states, along with liberal-leaning municipalities across the country, has passed laws or ordinances that would force pro-life pregnancy centers to promote abortion and/or denigrate the help they offer to women. In effect, these governments want to force pregnancy resource centers to speak against their own viewpoints and minimize their own efforts.
Not surprisingly, these efforts have sparked lawsuits. One, NIFLA v. Becerra, is before the Supreme Court right now. It involves California’s law that requires pro-life pregnancy centers — not doctor’s offices, for-profit abortion clinics or any other place women may visit to discuss their pregnancy options — to post signs that tell women how to seek state-subsidized abortions.
The court’s decision in NIFLA could have an immediate nationwide impact, and not just because there are thousands of charitable centers that offer alternatives to abortion. It could grant governments the right to regulate the speech of those who hold views not approved by the ruling authorities.
Since a landmark 1943 decision upholding the right of West Virginia students not to salute the American flag, the Supreme Court has held that free speech includes not just the right to speak but also the right not to speak. Generally, absent a compelling government interest, the state cannot force you to say what you do not want to say.
There are, of course, exceptions to the rule. Food manufacturers must list the ingredients of their products. Drug companies must include warning labels telling consumers of possible side effects. But these forms of compelled speech exist because courts usually allow governments greater leeway in regulating communications that are part of commercial activities.
There is, however, nothing commercial about pregnancy resource centers, which are nonprofit organizations that offer free goods and services to their clients. They’re akin to legal aid offices, which offer no-cost services and advice.
Generally, if a state tries to coerce private individuals or corporations to speak in a noncommercial setting, courts will apply a “strict scrutiny test,” the highest standard of review for such laws — and one that’s difficult to meet.
But, you may ask, what about state laws that force abortion providers to inform women about the possible complications of abortion? Indeed, in such instances, the government mandates that doctors relay certain information to their patients, but context is key. The Supreme Court held in 1992’s Planned Parenthood v. Casey decision that Pennsylvania’s informed-consent for abortion law was, constitutionally speaking, no different from informed-consent requirements for any other surgery.
So, if pregnancy resource centers are not commercial in nature and they don’t perform medical procedures, how can a government compel them to say things they otherwise wouldn’t? The answer is, it can’t. And until a recent decision by the U.S. Court of Appeals for the 9th Circuit, courts around the country have so ruled.
Baltimore passed an ordinance requiring pregnancy centers to post signs saying that they did not offer or refer for abortions. Earlier this year, the U.S. Court of Appeals for the 4th Circuit unanimously ruled that the regulation was unconstitutional in that it was not neutral in its application. As Judge J. Harvie Wilkinson wrote: “We do not begrudge the City its viewpoint. But neither may the City disfavor only those who disagree.” Similar efforts by localities to attack pregnancy resource facilities have also been struck down by courts, but that has not stopped the abortion industry from prevailing upon its political friends in liberal states and localities to continue its attack on the pro-life message.
The Supreme Court’s upcoming ruling — probably in June — will have a monumental impact on the First Amendment. If the justices side with California, they will be declaring that states can target and regulate the speech of those private citizens who hold opinions not approved by a majority of the legislature and the governor. And if that happens, our Constitution’s guarantee of free speech will have been gutted.