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SCOTUS and the “Reproductive FACT Act”

The Supreme Court will soon be hearing arguments in a case about whether or not the State of California can force pregnancy counseling centers to post a notice about “public programs that provide immediate free or low-cost access to comprehensive family planning services”.

(Image: Sebastian Pichler/unsplash.com)

Imagine the government ordered Ford dealers to post signs telling prospective auto buyers to check out Chevrolet or required vegan restaurants to give diners menus listing the offerings at neighborhood steakhouses as well as vegan fare—what would you say to that? More often than not, I suspect, you’d say the government had overstepped the line and ought to butt out.

Fantastic? The Supreme Court will soon be hearing arguments in a case involving a not dissimilar situation in California, where the state obliges pregnancy counseling centers seeking to encourage women not to have abortions to post the following notice:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved method of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number of the local office].

The law tasking as many as 200 pregnancy counseling centers with this burden—it’s called the Reproductive FACT Act—leaves no doubt about what it wants: a fully visible notice on paper no less than 8.5 inches by 11 inches printed in no less than 22-point type.

“Information is power,” said California Attorney General Xavier Becerra, who will defend the act before the Supreme Court early next year. Representing the National Institute of Family and Life Institutes, which supports 110 crisis pregnancy centers in the state, are lawyers from a group called the Alliance Defending Freedom. The case (National Institute of Family and Life Advocates v. Becerra) will come before the court near the 45th anniversary of the Roe v. Wade decision of 1973 in which the Supreme Court abruptly legalized abortion nationwide.

The Alliance Defending Freedom also represents the plaintiff in another case about religious free speech rights that the Supreme Court will hear December 5 (Masterpiece Cakeshop v. Colorado Civil Rights Commission). The dispute involves a baker in suburban Denver named Jack Phillips, found guilty of violating Colorado’s anti-discrimination law for declining to bake a wedding cake for two men because he opposes same-sex marriage on moral grounds and couldn’t in good conscience contribute to its celebration.

In both cases, the plaintiffs argue that their First Amendment free speech rights are violated by state actions that require them to take actions that lend support to something—same-sex marriage in the Colorado baker’s case, abortion in the case of the California crisis pregnancy centers—contrary to their moral convictions. Lower courts have ruled in favor of the state in both.

In October, though, a California Superior Court judge in a separate case granted an injunction against enforcement of the FACT Act. In a ruling saying “compelled speech” is tolerable only within “reasonable limitation,” Judge Gloria Trask said the law “compels the clinic to speak words with which it profoundly disagrees when the state has numerous alternative methods of publishing its message.”

In conflicts like these, people looking for larger trends see the coercive dynamic of contemporary secular liberalism according to which state power is rightly used as an instrument for imposing and enforcing its ideological dictates—especially, as is the case here, when these concern idols of liberal ideology like abortion and same-sex marriage.

Now the coercion is increasingly occurring at the expense of religious believers who have chosen to live as their consciences tell them they should. It is by no means clear where the Supreme Court, which over the years has done so much to advance this profoundly illiberal cause, will come down in this argument.

About Russell Shaw 149 Articles

Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide and the highly acclaimed American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.

4 Comments

  1. The difficulty here is that the state of California wants to advertise its services via the Pregnancy Crisis Center. No doubt the woman already knows that she can have an abortion. She cannot be a woman in todays society and grow up and not have discussed it thousands of times with her friends. No, the state wants to make sure the woman knows she can get a FREE, FREE, FREE abortion at a state facility. They want to advertise a free product offering, and force people who disagree with the whole idea of abortion to advertise it. No, the state has multiple options to get its message out. They don’t have to force those who oppose the whole idea to do their advertising for them.

  2. The Reproductive Fact Act is likely legally protected by Free Speech. Unfortunately The National Institute of Family and Life Advocates, an American 501 charitable organization that is a member of the National Pro-Life Religious Council doesn’t represent a specific religion rather a specific policy. My hope of course is there is an argument to be made and that they will somehow succeed v Becerra. The telling dilemma is how strident the Left is in imposing its antilife antisexualsanity antiGod agenda on the rest of us. Presently our Bishops are in Conference discussing implementation of AL in their Dioceses. The tone of the discussions to date seem pollyannaish. Or perhaps better Pollyanna on steroids, brushing off the moral weapon of mass destruction Ch 8. Perhaps I’m wrong. Although the prelates making noise are basically laissez faire administrators. Hope is a theological virtue that is being tested by their lack of a strong moral voice, a faint whisper compared to the strident Left. Let’s hope for that voice.

    • An addendum on the USCCB Conference and Amoris Laetitia. My conviction is the Bishops are well intended despite their varied views on AL. Treating the Exhortation as if Ch 8 can be treated as consistent with Apostolic Tradition ironically serves the interests of ‘traditionalists’ and ‘modernists’. The reason is the interpretation that is in conflict with Tradition [as perceived by the orthodox] is well on its way to universal implementation precisely due to belief that AL is consistent with Apostolic Tradition. Priests I’m familiar with consequently presume that heterodox interpretation is valid and freely implement it. Despite their Bishop’s known opposing view, or in many cases their silence. Apparently a majority of Bishops hold to tradition as indicated by the election of Bishop Naumann v Cupich, though many are silent on AL. These Bishops have the opportunity to bring the issue of interpretation to the floor for open discussion, and if resolution is not achieved as likely expected the question could then be submitted to the Roman Pontiff for clarification. He would be far more obliged to respond to a Nat Bishops Conf than a couple of retired Cardinals.

  3. It is unlikely that the Supreme court will uphold the states posting requirement but this will certainly not be the result of vigorous leadership by the bishops in the state on pro-life issues. The assignment of Arch. Gomez to Los Angeles should have signaled a start of active leadership but his actions, or lack thereof, have been less than impressive.

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