Yesterday, the U.S. Supreme Court announced that it would take up the case of National Institute of Family and Life Advocates (NIFLA) v. Becerra, which is a constitutional challenge to California’s anti-pregnancy-center law. The law forces pregnancy centers to post a sign advertising California’s abortion subsidy program. Pro-life pregnancy centers claim that this compelled advertising violates their right to freedom of speech, and are excited to see the Court hear the case.
At Slate, abortion-supporting authors Dahlia Lithwick and Mark Joseph Stern say not so fast. They claim that if NIFLA succeeds in taking down California’s law, then informed consent laws for abortion (which pro-lifers, and also most pro-choicers, support) will go down with it. Their argument, in a nutshell: California’s law compels speech (true), and informed consent laws for abortion also compel speech (true), so both types of laws will inevitably be treated the same way by the courts.
I don’t think Lithwick and Stern’s conclusion follows from their premises. To understand why, let’s start from an area of agreement: tobacco. It’s safe to say that Marlboro would rather not place the Surgeon General’s warning on its flagship product. Clearly, that’s an instance of compelled speech. But even among free speech absolutists, you’ll be hard-pressed to find someone who believes that the required Surgeon General’s warning violates the First Amendment. Why not? Because the government interest in regulation is incredibly compelling—it’s literally life and death.
The same rationale applies to the legal requirement of informed consent in the healthcare context. This is true not only for abortion—which is designed to kill (and therefore, pro-life advocates argue, not actually healthcare at all)—but for all surgical procedures and potentially harmful drugs, even if they are not as deadly as cigarettes. The freedom of speech isn’t limitless, and requiring warnings about potential physical dangers is a sensible limit.
Contrast that with the services typically offered by pregnancy resource centers: pregnancy tests, ultrasounds, STI tests, parenting classes, financial aid, baby supplies, maternity clothes, job training assistance, maternity housing referrals, and the like. Services vary from location to location, but they all have one thing in common: they pose zero physical risk to women. They are either diagnostic or socioeconomic; they are not invasive, and they have no side effects. When it comes to regulating abortion facilities, pro-life lawmakers can cite studies showing abortion risks, and pro-choice lawmakers can cite studies whitewashing those risks, and they can battle it out. But you’d be hard-pressed to find a single reputable study that shows, say, an increased risk of preterm birth from receiving a free sonogram. It’s been said so often that I don’t know who coined the phrase, but no woman has ever died at a pro-life pregnancy center.
If any real risk existed, I’d support compelled warnings. But it just doesn’t, and that’s why California’s law doesn’t require disclosure of any danger; instead, it requires NIFLA to advertise for its competitors in the abortion industry. Even the Surgeon General’s warning doesn’t go that far! Cigarette manufacturers are not required to post advertisements for Nicorette gum on their packaging; their compelled speech is limited to posting warnings about the risks of tobacco. And yet pregnancy care centers in California are compelled to actively promote the tragedy of abortion—the very thing they exist to help mothers avoid.
Compelled speech laws are generally unconstitutional unless the government has a compelling interest in preventing serious harms. California’s compelled speech law doesn’t come close to meeting that test. It is an ideological crusade against those who would dare use the peaceful power of persuasion to save lives from abortion, and the Supreme Court should invalidate it.