Abortion Disclosure Laws and the First Amendment–Two Takes

On March 21, the Supreme Court started hearing arguments for the case National Institute of Family and Life Advocates v. Xavier Becerra. This case had been upheld unanimously by a three-judge panel in the Ninth Circuit Court of Appeals before being presented to the Supreme Court, although, the New York Times stated that “Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”

 

The conflict stems from a 2015 California law requiring unlicensed pregnancy crisis centers, often called “fake pregnancy centers,” to visibly post signage indicating that 1) they do not have a licensed medical professional on the premises and 2) that state-subsidized abortions and prenatal care are available at little to no cost. Pregnancy crisis centers, which often look like abortion clinics or are located adjacent to them, are often religiously affiliated. They offer advice to pregnant women who are considering abortions, usually trying to convince them to reconsider their decision and carry the pregnancy to term. The National Institute of Family and Life Advocates is serving as an umbrella organization for these centers. Their argument, in short, is that in requiring that they state these things, the state of California is violating the First Amendment rights of these centers by forcing them to advocate for something that is in conflict with their firmly-held beliefs.

 

At least two very similar cases have been decided in state courts before. In 2012, First Resort Inc., one of these pregnancy centers, sued the City of San Francisco, which had an ordinance that prevented such centers “from making false or misleading statements to the public relating to their services,” according to the case First Resort Inc.v. Herrera. The court moved to settle the matter without hearing oral arguments, giving First Resort leave to amend their claim because they could not “allege any compelling grounds for declaring the Ordinance void on the grounds of vagueness,” and gave them an opportunity to amend their claim should they choose to do so.

 

In 2017, a similar case was brought before the Fourth Circuit Court of Appeals: Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore. This, too was with regard to a city ordinance requiring that pregnancy centers post disclaimers stating that they “‘do not provide or make referrals for abortion or birth-control services.’” The court held that the ordinance does indeed violate the free speech clause of the First Amendment.

 

According to the New York Times article, “Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options,” and Justice Gorsuch said at the Supreme Court arguments on March 21 that there are more direct ways of addressing speech and information that is misleading, such as through lawsuits and prosecutions (Cohen).

 

In his oral argument, the lawyer for the plaintiff, the National Institute of Family and Life Advocates, claims that the required notice and the specific centers that must give the notice are “gerrymandered,” or in other words that they are cherry-picked specifically to violate very specific beliefs. However, Justice Breyer says that “what is sauce for the goose is sauce for the gander,” asking about a hypothetical situation in which abortion clinics would also have to display notices giving information on non-abortion options, just as the crisis centers advertise for abortions.

 

Also brought up during the oral arguments was the 1992 case Planned Parenthood v. Casey, of which Justice Kagan called this case the “exact flip-side” (Liptak). This is because the resulting decision in Planned Parenthood v. Casey required abortion clinics and other medical facilities providing abortions to display and advertise information that has been proven to be untrue, such as the medical link between abortion and breast cancer and that medical abortions can be reversed (Cohen).

 

Because these cases have similar complaints coming from opposite ideologies, the resulting decision will likely have implications for both abortion clinics and pregnancy crisis centers, and thus for both the pro-choice and pro-life movements. If both parts of the California law are kept in place (both the requirement of pregnancy crisis centers to advertise that no licensed medical professional is on the premises and that low- or no-cost abortions are available by calling a certain number), then women who mistakenly happen upon these crisis centers when seeking abortions will enter them far less frequently, and will not be given false or speculative information about the procedure that they have likely already scheduled.

 

However, if the California law is deemed unconstitutional, then neither pregnancy crisis centers nor abortion clinics would be required to post information information that is not factual or goes against their fundamental beliefs. The pregnancy crisis centers would not be required to post information about how to obtain a low- or no-cost abortion or even disclose that they are not a medical facility, and medical clinics providing abortions would no longer be required to post or advertise false or misleading medical information about abortions.

 

In a New York Times article titled “Supreme Court Warily Eyes California Law Involving Abortion and Free Speech,” Jeffrey B. Wall opines that it is acceptable to require unlicensed pregnancy crisis centers to post a notice disclosing that no licensed medical professional is present, but requiring them to “make disclosures about services they do not provide and that would violate their most deeply held beliefs,” is not (Cohen). It is certainly a possibility that the court will rule this way, as the first part of the law is a disclosure about the medical licenses of the personnel present, while the second part, as Judge Wall stated, requires compelled speech, which is rare, though not absent from constitutional law. However, given the results in the Baltimore case, it is not unlikely that the court will rule in favor of free speech.

 

 

 

Bibliography

 

Cohen, David S. “How the Supreme Court’s First-Amendment Case Could Help Abortion Clinics.” Rolling Stone, 20 Mar. 2018.

https://www.rollingstone.com/politics/california-SCOTUS-first-amendment-abortion-case-pregnancy-centers-w518068

 

First Resort, Inc. v. Herrera, 860 F.3d 1263, 2017 U.S. App. LEXIS 11408, 2017 WL 2766094 (9th Cir. Cal. June 27, 2017)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=6df259cd-40d9-4e18-9391-fc60bfb65883&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5NWJ-MTB1-F04K-V1R1-00000-00&pddocid=urn%3AcontentItem%3A5NWJ-MTB1-F04K-V1R1-00000-00&pdcontentcomponentid=6393&pdshepid=urn%3AcontentItem%3A5NVW-2691-DXC8-70TJ-00000-00&pdteaserkey=sr7&pditab=allpods&ecomp=Ly_k&earg=sr7&prid=03602bed-0f34-44e7-8252-2167b2202c5d

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 2018 U.S. App. LEXIS 297, 2018 WL 298142 (4th Cir. Md. January 5, 2018)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=3b9a0592-191f-4a95-9263-0162358c406e&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5RBH-DSD1-F04K-M2S4-00000-00&pddocid=urn%3AcontentItem%3A5RBH-DSD1-F04K-M2S4-00000-00&pdcontentcomponentid=6388&pdshepid=urn%3AcontentItem%3A5RBN-8K61-J9X6-H4V8-00000-00&pdteaserkey=sr3&pditab=allpods&ecomp=Ly_k&earg=sr3&prid=63116fe3-4d86-4afa-acec-186052caa719

 

Nat’l Inst. of Family & Life Advocates v. Becerra, 2017 U.S. Dist. LEXIS 161343 (S.D. Cal. September 29, 2017)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=4d1ecdc0-67fe-4305-b66c-89b885473521&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PKR-P1G1-F04C-T1C4-00000-00&pddocid=urn%3AcontentItem%3A5PKR-P1G1-F0h

 

Liptak, Adam. “Supreme Court Warily Eyes California Law Involving Abortion and Free Speech.” New York Times, 20 Mar. 2018.

https://www.nytimes.com/2018/03/20/us/politics/supreme-court-abortion-free-speech-crisis-pregnancy-centers.html

 

Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751, 60 U.S.L.W. 4795, 92 Daily Journal DAR 8982, 6 Fla. L. Weekly Fed. S 663 (U.S. June 29, 1992)

https://advance-lexis-com.libproxy.temple.edu/search/?pdmfid=1516831&crid=ef405cc7-0d8b-4bd0-b8e8-9e54f096c077&pdsearchterms=planned+parenthood+v.+casey%2C+505+u.s.+833&pdstartin=hlct%3A1%3A1&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=hlct%3A1%3A1&ecomp=556dk&earg=pdpsf&prid=8bed6847-224d-4283-99c4-bf7641ab3ce5

Discrimination or Compelled Speech? Two Legal Views…

Owner of Masterpiece Cakeshop, Jack Phillips. Image from The Wall Street Journal.

 

In Colorado, in 2012 Charlie Craig and David Mullins visited Masterpiece Cakeshop, which was owned by Jack Phillips. The gay couple visited in hopes to order a cake for their post-wedding ceremony but were refused service after Phillips learned that the duo was planning on purchasing a cake to celebrate their marriage. Phillips cited his religious beliefs as a Christian as a reason for the denial of the transaction. The couple then left the establishment and filed a complaint to the Colorado Civil Rights Commission under the state’s Public Accommodations Discrimination Law, which prevents retail business from discrimination of disabilities, gender, race, and sexual orientation. Colorado is one of 21 states in the nation that includes a public accommodation law which helps prevent discrimination. Phillips was ordered by the state to reverse his business ethics and to seek training on elimination discrimination.

 

After Phillip’s disclosed that he lost 40 percent of his business after the legal battle, he decided to leave the wedding cake business and filed an appeal that landed him in the Supreme Court, thus the Masterpiece Cakeshop v. Colorado Civil Rights Commission case was born. The case held oral arguments on December 5th, 2017 and is currently awaiting a ruling later this year. The general consensus from the oral arguments was that using religion to justify discrimination could yield a dangerous rhetoric, but also that if ruled in favor of Phillip’s could open a Pandora’s box of issues and would undermine hundreds of antidiscrimination laws that have been set into place. In Newman v. Piggie Park Enterprises, Inc. similar discrimination was enacted when two African Americans were refused service at a drive-in in South Carolina due to their race and were brought to the Supreme Court where the defendant cited his religious freedom to justify his refusal of service. Granted, this case was from 1968 and was introduced after the Civil Rights Act of 1964, it has all the same elements as the current case.

 

Phillip’s had also argued that his freedom of speech was violated due to being forced to create the cake for the gay couple after the initial feedback from the Colorado Civil Rights Committee required him to do so and seek anti-discrimination training sessions. Phillips stated that creating cakes is a form of artistic expression and under the First Amendment, he should not be forced by the state of Colorado to engage in ‘compelled speech’ that violates his religious beliefs. The couple has argued that his artistic expression statement is false due to the fact that they were looking through a book of already created cakes and not asking him to create something new, rather choosing from a list of already made products.

 

Another almost identical case emerged in August of 2017, Department of Fair Employment and Housing v. Cathy’s Creations The Department of Fair Employment and Housing complained that Cathy Miller violated similar state anti-discrimination laws which prohibited businesses from refusing goods or services to anyone on the basis of several characteristics including race, gender, religion or sexual orientation. The California court ruled in favor of Miller’s right to freedom of speech and artistic expression was greater than a state’s interest in preventing discrimination and could not be used to compel speech.

 

There’s no doubt the Supreme Court will be using the case above when ruling a ruling later this year since the circumstances are almost identical. Forty-five states currently have anti-discrimination laws that protect individuals from several forms of prejudice/bias and Colorado’s states that any form of discrimination against any group or individual who is opposed to limiting goods or services to the oppressed are deemed as unlawful. The Masterpiece Cakeshop case is a difficult one to rule on and it’s understandable why it has taken so long to come to a ruling. On one hand if the Supreme court rules in favor of the baker the excuse for denying service to others is justifiable under religious freedom, it will continue to happen and will be taken advantage of indefinitely and years of anti-discrimination laws will be rendered pointless if an organization just has to cite their First Amendment right to deny not only gays but minorities too. If the case is ruled in favor of the gay couple, then the freedom of artistic expression and freedom of speech will be challenged. It more than likely will come down to proving that Philips was, in fact, using an artistic expression or if having made past cakes and offering them for resale constitutes as them being labeled as products and not art.