Twenty-two states filed a friend-of-the-court brief Tuesday with the Supreme Court in National Institute of Family and Life Advocates v. Becerra.
The free speech case, taken up in November by the Supreme Court, will address a 2015 California law that requires pro-life pregnancy centers to “disseminate to clients” a message promoting public programs with “free or low-cost access” to abortion and contraceptive services.
The law, dubbed “The Reproductive FACT Act” by its supporters, including the abortion advocacy group NARAL which sponsored the legislation, went into effect in January of 2016. It requires pregnancy centers to post the notice that, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
Three pregnancy centers, the National Institute of Family and Life Advocates, Pregnancy Care Center, and Fallbrook Pregnancy Resource Center, sued over the requirement claiming that the law infringes upon their First Amendment rights to freedom of speech and free exercise of religion.
The friend of the court brief filed by 22 states says that the “Ninth Circuit erred by equating California’s law with other state laws requiring doctors to obtain informed consent from a patient before performing an abortion procedure…. California’s law requires licensed medical facilities—including those that do not perform abortions or prescribe all forms of contraception—to nevertheless notify individuals about state-subsidized contraceptives and abortion offered by other doctors and facilities. California’s law thus has nothing to do with giving a patient information to assess the risks and consequences of a procedure a doctor in a certain medical facility is about to perform.”
The brief also notes that the states are "well positioned to explain that States have a host of alternative means available to disseminate the information that the California law requires certain licensed medical facilities to provide, as well as the regulatory authority to address any actual instances of misrepresentation."
The filing was led by the state of Texas and included West Virginia, Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Wisconsin.
“I support and defend life at all stages,” West Virginia Attorney General Patrick Morrisey commented in a statement. “A pregnancy center focused on protecting the unborn and offering help to women should not be forced to promote a message that conflicts with its mission.”
Another amicus brief in the case, filed by 144 members of Congress says, “It is well-established that the First Amendment proscribes compelled speech in non-commercial contexts. This is especially true in cases like this one in which the state forces conscientious objectors to carry messages that offend the speakers’ moral convictions.”