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California Can't Mandate Abortion Advertising

In NIFLA v. Becerra, the Supreme Court confirmed that the First Amendment protects all Americans from being forced to speak messages contrary to their beliefs.
Alliance Defending Freedom
Published
Revised
Pregnancy centers empower mothers to choose life

The mission of pro-life pregnancy centers is to help women navigate pregnancy and motherhood while protecting the lives of their unborn children. They seek to provide alternative options for women who do not want to end the lives of their children in the womb.

So it goes without saying that pointing the way to abortion violates the very mission of these centers.

But in 2015, California passed a law attempting to force pregnancy centers to advertise abortion as an option to women seeking care—directly violating these pregnancy centers’ right to free speech.

Thankfully, when this case went all the way to the U.S. Supreme Court, the Court overturned this law.

 

Blayne Wittig is the executive director of Options Health pregnancy center
Blayne Wittig is the executive director of Options Health pregnancy center.

 

What is the National Institute of Family and Life Advocates (NIFLA)?

The National Institute of Family and Life Advocates (NIFLA) is a nonprofit network of pregnancy centers around the United States that believe in affirming the value of every life. NIFLA was founded in 1993 by pro-life attorney Thomas Glessner. According to its website, NIFLA “exists to protect life-affirming pregnancy centers that empower abortion-vulnerable women and families to choose life for their unborn children.”

NIFLA represents more than 1,600 pregnancy centers across the U.S—offering counsel and support, and providing resources to help them become licensed medical clinics. In addition to pregnancy centers, NIFLA assists other organizations that offer services to the centers. These include maternity homes, adoption agencies, and fatherhood initiatives.

When California passed a law forcing pro-life pregnancy centers to advertise abortion services in conflict with their religious beliefs, 150 of the pregnancy centers NIFLA represented at the time were affected. That’s when the network knew it had to act.

 

National Institute of Family and Life Advocates v. Becerra

In 2015, California passed the so-called “Reproductive FACT Act,” which was aimed at compelling pro-life pregnancy centers to speak messages that contradicted their beliefs. The law targeted these centers in two specific ways.

1. The law required medically licensed pregnancy centers to provide disclosures informing pregnant women that California offered free or low-cost abortion services. The disclosures also had to include a phone number for a county office, which would then refer women to Planned Parenthood or other abortion providers.

2. It forced unlicensed pregnancy centers to add large disclosures to any advertisements explaining they were not medically licensed. This even applied to pregnancy centers that did not provide medical services, but rather other free services like parenting classes or materials like diapers and strollers. The disclosures were clearly meant to drown out the pregnancy centers’ pro-life message and give the false impression that they were not qualified to provide care to pregnant mothers.

Shortly after the law’s passage in California, Alliance Defending Freedom attorneys filed a federal lawsuit on behalf of NIFLA and two individual pregnancy centers in California seeking to have the unconstitutional law struck down. The case eventually made its way to the Supreme Court.

In a 5-4 decision, the Court ruled NIFLA was likely to succeed in its claim that the government cannot compel pro-life groups to speak messages with which they disagree. The Court overturned California’s law, freeing pro-life pregnancy centers to assist women without being forced to advertise abortion.

Justice Clarence Thomas wrote in his majority opinion that “the people lose when the government is deciding which ideas should prevail.” In a concurring opinion, Justice Anthony Kennedy wrote that the law was a targeted attack against pro-life Americans and that the state was guilty of viewpoint discrimination.

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression,” Kennedy wrote.

 

Outcome

While many Americans primarily think of the First Amendment as a protection of our right to speak freely about our beliefs, it is important to remember that it also protects us from being forced to speak messages we object to.

With this ruling, the Court affirmed Americans’ right under the First Amendment not only to speak freely, but also to not speak messages that conflict with our beliefs.

 

Case timeline

  • October 2015: California passed AB 775, forcing pro-life pregnancy centers to advertise abortion. Shortly after, ADF attorneys filed a federal lawsuit on behalf of NIFLA and two individual pregnancy centers.
  • February 2016: The U.S. District Court for the Southern District of California denied ADF attorneys’ request for a preliminary injunction that would have temporarily stopped California from enforcing the law against pregnancy centers. ADF attorneys appealed to the U.S. Court of Appeals for the 9th Circuit.
  • October 2016: The 9th Circuit affirmed the lower court’s decision, keeping the unconstitutional law in place.
  • March 2017: ADF attorneys appealed NIFLA’s case to the Supreme Court.
  • November 2017: The Supreme Court agreed to hear the case.
  • June 2018: In a 5-4 decision, the Supreme Court ruled NIFLA was likely to win its claim that the government could not force pro-life pregnancy centers to advertise abortion. The Court overturned California’s law, allowing these pregnancy centers to continue working to protect life.

 

The bottom line

No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion. The Supreme Court confirmed that the First Amendment protects Americans from being forced to speak messages contrary to our beliefs.

 

Learn more:

In NIFLA v. Becerra, the Court ruled that pregnancy centers cannot be forced to promote their opponents’ point of view:

Alliance Defending Freedom
Non-profit organization
ADF is the world's largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, marriage and family, and parental rights.