George Boardman: Supreme Court will decide if clinics have to promote abortion services
Observations from the center stripe: First edition
SHERIFF CANDIDATE Bill Smethers is the first candidate for any office to plant a campaign sign at the entrance to Lake of the Pines. You can bet it won’t be the last one … WHY DO I get the impression the Nevada City Council is just winging it when it comes to setting marijuana policy? … DO YOU think Rep. Doug LaMalfa will show up for the League of Women Voters’ candidates night? I don’t … ONLY IN California would the appointment of an illegal resident to a state position be considered political grandstanding … WHAT’S THE big deal? I ate some cage-free eggs recently; they didn’t taste any better and I didn’t feel any more virtuous …
The United States Supreme Court is scheduled to hear oral arguments Tuesday on whether Livingwell Medical Clinic of Grass Valley and over 130 other pregnancy clinics in California have to tell clients that abortion services are available to them.
The suit, National Institute of Family and Life Advocates v. Becerra, asks the court to declare California’s Reproductive FACT Act unconstitutional because it violates the First Amendment freedom of speech rights of people who oppose abortions.
The court is expected to issue a ruling by June.
This is the second case this term in which the high court is taking a close look at whether government can compel speech. The earlier case — a Colorado baker refused to bake a wedding cake for a gay couple on religious grounds — received national attention.
The FACT Act, passed by the California Legislature in 2015 to address concerns of pro-choice advocates that clinics like Livingwell were giving their clients false or misleading information about the health effects of abortions, requires the clinics to post in a conspicuous place information about the availability of family planning and low cost abortion services in California.
Livingwell and several other clinics in California immediately filed suit. The high court decided to consider the petition of the institute, which provides legal and other services for pregnancy clinics, and is representing 135 California clinics — including Livingwell — in the suit.
Clinics like Livingwell provide services for pregnant women and try to persuade them not to end their pregnancies. The clinic states on its website that it does not provide abortion services or referrals.
The state claims the clinics employ deceptive advertising, and confuse and even intimidate women who think they are going to receive more neutral abortion counseling. Many allegedly use scare tactics, such as suggesting the risk of getting breast cancer increases after an abortion, and that abortion is a high-risk procedure that can result in infection and death. (Neither claim is true.)
“Information is power, and all women should have access to the information they need when making health care decisions,” said state Attorney General Xavier Becerra, the defendant in this and other cases. “(FACT) ensures that women in California receive accurate information about their health care options.”
The institute states in its petition that California has plenty of other ways to inform women without forcing clinics to provide information about a procedure they strongly object to.
“The state, rather than using countless other ways to communicate its message, including its own powerful voice, instead compels only licensed facilities that help women consider alternatives to abortion to express the government’s message regarding how to obtain abortions provided by the state,” National Institute of Family and Life Advocates states in its petition.
A Superior Court judge in Riverside County declared the law unconstitutional, but the Ninth Circuit Court of Appeals in San Francisco upheld the FACT Act, carving out a First Amendment exception for what it deemed “professional speech.”
The Supreme Court is limiting the case to one question: “Whether the disclosures required by the California Reproductive FACT Act violate the protection set forth in the Free Speech Clause of the First Amendment …”
The institute believes it has a strong case when it comes to the free speech argument, citing the court’s decision in Woolery V. Maynard where it ruled that New Hampshire couldn’t force a motorist to drive with license plates sporting the state’s motto, “Live Free or Die.” The court ruled 9-0 that the First Amendment “protects the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable.”
Erwin Chemerinsky, dean of the U.C. Berkeley School of Law, has a different view. “Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health services does not violate the First Amendment,” he said.
“No doctor, other health-care professional or facility is required to provide contraceptives or abortions, or even provide referrals for these services. The new law simply ensures that clinics expose their patients to accurate information about the existence of state programs.”
The earlier case involving the right of Colorado baker Jack Phillips to refuse to bake a cake for a gay wedding on religious grounds received a lot of attention from the media.
Justice Anthony Kennedy, generally considered the swing vote on the court, gave a strong indication of where he stands on the issue when he told the state’s counsel: “Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
When you set aside the emotionally charged issues of abortion and gay marriage, you’re left with two free speech cases. Previous court rulings have set limits on what people can say, but can the government compel the same people to say or do something they don’t believe in? On the other hand, are these really the only remedies the plaintiffs in the two cases had?
You can be sure the court’s ruling will set off another debate about what constitutes freedom of speech.
George Boardman lives at Lake of the Pines. His column is published Mondays by The Union. Write to him at email@example.com.
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