I have noticed that there is a lot of misinformation being spread about the NIFLA v Becerra decision that was recently released by the US Supreme Court. (Case in point, this statement.) So let’s set the record straight:
The impetus for the NIFLA v Becerra case was a 2015 law passed in California. Colloquially referred to as the “Reproductive FACT Act”, this law mandated that pro-life crisis pregnancy centres provide information to their clients about how to access a state-funded abortion.
Contrary to the claims of some (pro-abortion) news outlets, this case was ultimately not about the issue of abortion. Not really. While the case involved this Californian law that sought to control the actions of crisis pregnancy centres (CPCs), the crux of this case had little to do with abortion, reproductive rights, or even CPCs.
The truth is that this decision focused squarely on one key concept: free speech.
In his concurring statement in the NIFLA v Becerra decision, Justice Kennedy wrote the following:
Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
And this, ladies and gentlemen, is what the entire NIFLA v Becerra case was about. Because, while this Californian law was lauded as a glorious advancement in women’s empowerment, the reality is that it was merely masquerading as an initiative to protect reproductive rights. Behind its thinly-veiled feminist veneer, this law had a much more sinister goal: namely, ushering in the reign of ideological totalitarianism.
You see, this Californian law sought to force CPCs to promote abortion to their clients. Perhaps you, like me, find this deeply offensive because you believe abortion is morally reprehensible. Or perhaps not. But even if you and I cannot agree that abortion is morally wrong, that is beside the point.
The real danger in this law was that is sought to destroy free speech. It sought to enforce the perspective of a select few on the entire population of California.
So the Supreme Court decision in NIFLA v Becerra was not a victory for pro-life groups. It was a victory for all individuals. Because this victory was ultimately a victory for freedom of speech. And, had the Supreme Court not intervened and struck down this law, the freedom of speech of all individuals – pro-life and pro-abortion – would have been jeopardized.
Perhaps the most ironic fact of all is that, even as pro-abortion groups rage about this outcome, they directly benefit from this decision. After all, it is free speech that has shaped our society in such a way that we are even able to express our displeasures with a Supreme Court decision or have a respectful debate about abortion at all.
So, regardless of where you stand on the issue of abortion – whether you are a radical pro-abortion feminist or whether you, like me, believe women deserve better than abortion – June 26th, 2018 is a day for all of us to remember with grateful hearts. Because, as Martin Neimöller so eloquently stated, limitations of freedoms will inevitably affect us all.
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so true-great blog! Would the “abortion rights” (so called) advocates like to advertise for crisis pregnancy centers-they should if their claims about wanting to give women “choices” are true-but they should not be forced to do so-better to expose their hypocrisy-if they were truly “pro-choice” they would do this voluntarily!
What do you guys think about Justice Breyer’s comment “What’s sauce for the goose is sauce for the gander,” meaning that pro-life laws that mandate an abortion provider tell an abortion-minded woman about the existence of a CPC to help her with her pregnancy are also a violation of the abortion provider’s right to free speech. He says that if those pro-life laws are deemed constitutional, then the California law should be deemed constitutional as well.
I think he’s got a good point. I would have to agree with him and think that, if a pregnancy resource center is not obliged to advertise for abortion, then an abortion provider, who thinks that abortion is the best course of action for a client, shouldn’t be obliged to advertise for a pregnancy resource center. What do you think?
Hi Melissa –
Great comment! I’ve thought about this a lot, in part because of the situation in Ontario, where I live. Historically, the Ontario government has consistently refused to give CPCs any provincial funding on the grounds that they do not present information about all three options (translation: they do not provide information about abortion). However, abortion clinics often do not provide information about all three options either, since they exist predominantly to facilitate access to abortion, not to assist in adoption referrals or provide information about parenting. I find this double standard troubling, as you have pointed out, so I definitely get where you’re coming from.
Here would be my response (and I apologize in advance if this is rather long-winded. I tend to error on the side of being overly clear. Thank you in advance for your patience with me.)
I think there are two big differentiations between the example you’ve illustrated and the situation that the court is dealing with:
(1) Crisis Pregnancy Centres (CPCs) are often religious organizations; if they are not formally religious organizations, then they are often run by volunteers with deeply held religious and moral values. So when the government of California mandated that these individuals provide information about abortion access, this was not a morally-neutral act for these individuals. Rather, for these individuals, providing this information is almost certainly viewed as aiding in an abortion procedure, which they view as morally reprehensible and which goes against their deepest beliefs, both ethical and religious.
The same cannot be said in reverse. While abortion clinics obviously exist in order to facilitate abortions, they are not (to my knowledge) filled with individuals who have deeply held moral or religious convictions against CPCs. While the individuals who work at abortion clinics often disagree with CPCs and resent their very existence, I would argue that this is different.
(2) However, even if you could prove that individuals working at abortion clinics did, in fact, have deeply held moral or religious convictions that made them believe providing information about the existence of CPCs was a morally reprehensible act, the fact still remains that CPCs and abortion clinics are not similar institutions.
Abortion clinics are medical facilities that must adhere to medical standards and oversight. They are filled with healthcare professionals who are governed by set rules and regulations regarding how to provide healthcare to their patients. Therefore, the role of an abortion clinic worker should never be about providing advice to individual patients. Rather, it should always be about informing the individual patient about what her legal options are to an unplanned pregnancy, which (depending on the jurisdiction) include abortion, adoption, and parenting.
CPCs, however, play a different role when it comes to helping a woman navigate a crisis pregnancy. CPCs are not medical facilities and, to my knowledge, they do not claim to be. (For example, one of the main CPCs in Toronto clearly states on its website that it exists as a “Christian non-profit, non-political, charitable organization to offer valuable community support”.) To be clear, many of the CPCs I have visited do have trained medical staff that assist them from time to time, and my understanding is that those individual healthcare professionals (assuming that they are in fact functioning in that role) are still subject to the rules and regulations set out by their governing bodies.
However, again, CPCs themselves are not medical facilities. Rather, they are privately owned and operated by pro-life individuals. And, to clarify, the reason they exist is because pro-life individuals have noticed a lack of information being provided to women about options other than abortion. in other words, CPCs exist to fill a specific gap that exists in our society in terms of support for women experiencing crisis pregnancies.
This is why CPCs focus on providing their clients with information about adoption and parenting (including single parenting),practical support (eg. maternity clothes, baby clothes, diapers, etc.), and financial support, as well as other forms of assistance.
So, to be frank, I have no issue with laws requiring abortion clinics to provide information about all the resources that exist for women facing unplanned pregnancies. Why? Because that is the role they are meant to fulfill. As a medical facility and as healthcare providers, they are supposed to provide unbiased information to the patients. So even if they personally believe that their patient would be better off having an abortion, it is still their responsibility to inform her about all of her options and about all the resources that are available to her.
Ultimately, I feel that the free speech issue alone is enough to justify this situation, or what some might refer to as a double standard. As one sign I read said, this law requiring pro-life CPCs to promote abortion is similar to requiring vegetarians to promote meat eating or requiring pacifists to promote war.
As Justice Kennedy stated, freedom of speech is foundational to so many other rights and liberties that we benefit from. To deny pro-life individuals their right to live according to their moral or religious convictions by requiring them to promote abortion would undermine their rights on multiple different levels, including their right to simply exist equally in our society.
This simply cannot be equated with the requirement that an abortion provider (whose personal opinion abortion is the best solution) be required to share information with a woman about all her options.
(Also, as a side note, I do know that there are a number of CPCs that do provide information about abortion. Often it depends on how the organization has defined itself and what role it is seeking to play in the community. It also often depends on how comfortable the individual workers are with providing that information. However, I do know of a number of CPCs that will provide information about abortion, such as information about the types of abortion procedures and about the side-effects of abortions.)