By Dwight G. Duncan
The following article originally appeared in the Spring 2018 issue of the MCFL News magazine, a perk of membership mailed out quarterly to all members.
One of the biggest cases in this year’s Supreme Court term is National Institute of Family and Life Advocates v. Xavier Becerra, Attorney General of California. Petitioners, a group of pro-life Crisis Pregnancy Centers in California, are challenging on First Amendment free speech grounds the California law which requires them to provide information on whom to contact in order to obtain an abortion.
The lower federal courts in California, including the 9th Circuit Court of Appeals, which has the distinction of being the Court overturned most often by the U.S. Supreme Court, held that the unprecedented California law was constitutionally consistent with the First Amendment.
Petitioners’ brief was filed on January 8, and amicus briefs supporting petitioners’ First Amendment argument were filed by January 15. The government’s brief is due February 8, with amicus briefs in support thereof due a week later. Oral argument is set for March 20. Along with the Masterpiece Cake case out of Colorado, which challenges on First Amendment grounds Colorado’s fining a bakery for refusing to bake a cake for a gay wedding, these cases both raise the issue of freedom not to speak—one in the abortion context, the other in the same-sex marriage context. Decisions are expected by the end of the Supreme Court term around June 30.
On January 12, I filed an amicus brief supporting the Crisis Pregnancy Centers in their freedom from compelled speech argument. The brief was on behalf of Massachusetts Citizens for Life, the leading pro-life group in Massachusetts; Eleanor McCullen, the local pro-life counselor who was the lead plaintiff in McCullen v. Coakley, the 2014 U.S. Supreme Court case unanimously declaring the Massachusetts buffer zone law applicable to abortion clinics unconstitutional under the First Amendment; Expectant Mother Care, a non-profit network of pro-life centers that offer alternatives to abortion in New York; and the Pro-Life Legal Defense Fund, another Massachusetts not-for-profit which offers pro bono legal services for the protection of human life. All these clients share an opposition to government mandates to provide information on how to obtain abortions, since they work on a volunteer basis to encourage alternatives to abortion because of their deep-seated pro-life convictions and their conscientious objection to abortion.
Professor Mary Ann Glendon of Harvard Law School was co-counsel on the brief, and most of the legal research and writing was done by a talented group of Harvard Law School students working pro bono over Christmas break. Recruited by third-year law student Steven Obiajulu, and ably coordinated by second-year student Grant Newman, they included fellow second-years Ryan Proctor and Asher Perez and a diverse group of others, including One Ls, who prefer to remain anonymous. While law professors like myself are usually good at taking credit for other people’s work, justice demands that their substantial work on the amicus brief be properly recognized and acknowledged.
What’s the basic argument? The same that the Supreme Court first recognized in 1943 in West Virginia Board of Education v. Barnette, when it held that forcing Jehovah’s Witnesses to salute the flag and pledge allegiance violated freedom of speech: “If there is one fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Abortion is obviously one of the most controversial issues of the day, and people disagree strongly about it, even if it is legal (and state-funded, in the case of Massachusetts). The government should not be able to override people’s conscientious objection to abortion and force them to make referrals, particularly when they are volunteers working pro-bono.
There is no reason to consider their advice “commercial speech” subject to greater government regulation. In the words of the brief, “To hold that the pregnancy centers are engaging in commercial speech would transform a broad array of expressive action unconnected to economic self-interest into regulable commercial speech.”
Even if the crisis pregnancy centers’ speech is considered “professional speech,” the Supreme Court has held in a couple of cases involving the NAACP and the ACLU that the regulation of professional speech is subject to strict scrutiny and presumably unconstitutional when the professional speech is not motivated by pecuniary interest.
Of course, freedom of speech requires the liberty to determine not only what to say, but also what not to say. In this case, the pregnancy centers have an interest in not providing the information at issue, because directing clients to the location of abortion providers violates the moral purposes these pregnancy centers are established to uphold. Requiring the pregnancy centers to advertise for abortion providers—or to do anything that promotes abortion—forces them to promote a practice with which they fundamentally disagree.
My hope is that the U.S. Supreme Court will reverse the lower federal courts and hold that the First Amendment freedom of speech prohibits California from requiring pregnancy centers to advertise for abortion. I suspect that there are at least five votes to so rule, and it could even be unanimous. The price of unanimity, however, would likely be a very narrow ruling. Because this type of illiberal regulation forcing people to pledge allegiance to government-favored policies is becoming more frequent, notwithstanding significant religious and conscientious objection, a broader holding for freedom of speech is constitutionally imperative.