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Supreme Court of the United States

NIFLA Is a Win for Viewpoint Diversity and True Freedom of Choice

By Maureen Collins posted on:
June 29, 2018

No one should be targeted by the government because of their personal views.

If you believe this and believe in protecting the First Amendment, this week’s Supreme Court decision in NIFLA v. Becerra is a huge win. In a 5-4 decision authored by Justice Clarence Thomas, the Court turned back the state of California’s “Reproductive FACT Act,” (AB775) which forced pro-life pregnancy centers to advertise for abortion.

The law required medically licensed pregnancy centers to post or distribute a statement pointing the way to abortion. It also required unlicensed pregnancy resource centers to post signs in digital or print advertising that they are not medically licensed clinics—which, for the most part, prevented these centers from getting their message out altogether.

Forcing someone to speak against their beliefs not only goes against the freedom of speech, it goes against plain common sense. Under this particular law, the very pregnancy centers dedicated to giving women alternatives to abortion were compelled by the state to advertise for abortion.

What is worse: The state of California specifically designed AB775 to target pro-life pregnancy centers.

Because of this, Justice Anthony Kennedy, joined by Chief Justice John Roberts and Associate Justices Samuel Alito and Neil Gorsuch, wrote a concurring opinion to address the California law’s blatant viewpoint discrimination. Kennedy observes how California’s law is an “example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

Even more importantly, Justice Kennedy emphasized the vital importance of the freedom to live out one’s beliefs in the public square: “Governments must not be allowed to force persons to express messages contrary to their deepest held beliefs,” he wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

We should all be able to agree that no one should be discriminated against because of their views, including those on the pro-abortion side.

It is interesting, then, how several pro-abortion activists and pundits claimed that the NIFLA decision is biased against their view.

In a ThinkProgress article, Ian Millhiser argues that, by protecting the speech rights of pro-life clinics, NIFLA creates a double standard for abortion clinics, who have their speech regulated by something called informed-consent laws. “Informed consent” simply means that a patient must be told exactly what is being done to their body and the consequences before undergoing a medical procedure.

Millhiser writes that “in many ways” AB775 “is a mirror image of similar laws enacted by anti-abortion state legislatures, which require genuine abortion clinics to communicate a state-sponsored message to people seeking abortions.” This description of informed-consent laws, Millhiser argues forces abortionists to “accept a watered-down right to free speech.”

But this argument is based on a false comparison. The idea of informed consent was not invented for abortion alone—it’s a common medical practice of telling a patient the potential risks of a particular medical procedure. A law that requires informed consent for something as invasive, dangerous, and life-altering (not to mention life-ending) as abortion is just common sense.

Requiring unlicensed pregnancy centers to carry a disclaimer in as many as 13 languages is obviously quite different. In the instance of informed-consent laws, there is a medical procedure taking place, whereas, the disclosure required by AB775 has nothing to do with a medical procedure provided by the licensed centers. For unlicensed pregnancy centers, the objective is merely to help women discover their options—not perform any medical procedures.

As Justice Thomas points out, “the notice” required by AB775 “does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all.”

There is no double standard in NIFLA.

Pro-life pregnancy centers exist to tell women about all of their choices. You would think that those who call themselves “pro-choice” would support that. But this law makes it clear that California and pro-abortion activists seem to want women in unexpected pregnancies to know about only one choice – abortion.

The Supreme Court’s decision in NIFLA is simple. It protects the free speech of those with the viewpoint that women should have many choices other than state-sponsored abortion.

And more speech is something we should all be able to get behind.

Maureen Collins

Maureen Collins

Digital Cultivation Manager

Maureen Collins serves as the Digital Cultivation Manager at Alliance Defending Freedom.