Life News
How far can a state go to promote its views on abortion?
Can it force crisis pregnancy centers that support women who face a difficult or unplanned pregnancy to advertise the state’s free abortion program? Can it mandate resource centers that provide counseling, education, and baby supplies to include in their ads a lengthy disclaimer in up to 13 languages?
These are the issues the Supreme Court heard Tuesday in the case, National Institute of Family and Life Advocates v. Becerra.
Three lawyers appeared before the justices. One is Michael Farris, president of Alliance Defending Freedom, who represented pro-life crisis pregnancy centers that object to these requirements.
Some of the centers represented by Farris are licensed medical providers that perform pregnancy tests, ultrasounds, and other prenatal care, and the state of California is trying to force them to post signs with information about free abortions.
Other centers are unlicensed and do not provide medical care but offer free resources for pregnant women in need. California would require them to include a 29-word disclaimer in their ads, effectively drowning out their message.
Jeffrey Wall, deputy solicitor general of the United States, represented the federal government, which filed a brief supporting neither side. Joshua Klein, deputy solicitor general of California, defended the state’s law.
The justices peppered all three advocates with questions. Here are seven key exchanges from the oral argument.
1. Comparisons to Informed Consent
During Farris’s introduction, Justice Ruth Bader Ginsburg jumped in, asking why posting the notice isn’t just like requiring a doctor to provide informed consent before performing an abortion.
Farris explained that providing informed consent turns on whether there is a medical intervention. States may require doctors to discuss the risks of an abortion before performing the procedure, as the Supreme Court held in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and this can include discussion about alternatives to abortion.
But here, the pregnancy centers aren’t performing medical procedures yet they would be forced to advertise California’s free or low-cost abortion program to every person who enters the building.
Justice Samuel Alito asked whether the state could require all doctors treating pregnant women to post a notice with the full range of options available to them, including services not performed at that center. Farris explained that there could be a problem with that if doctors objected to performing abortions, but what the state did here is target pro-life centers and force them to advertise for abortions.
Justice Stephen Breyer said he saw this case as the pro-choice version of the Casey case. Breyer mused that a ruling for California would be even-handed because “the sauce for the goose is sauce for the gander.” Farris explained that this would politicize the practice of medicine.
2. A Statute Riddled With Exemptions
Farris explained that providing informed consent turns on whether there is a medical intervention. States may require doctors to discuss the risks of an abortion before performing the procedure, as the Supreme Court held in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and this can include discussion about alternatives to abortion.
But here, the pregnancy centers aren’t performing medical procedures yet they would be forced to advertise California’s free or low-cost abortion program to every person who enters the building.
Justice Samuel Alito asked whether the state could require all doctors treating pregnant women to post a notice with the full range of options available to them, including services not performed at that center. Farris explained that there could be a problem with that if doctors objected to performing abortions, but what the state did here is target pro-life centers and force them to advertise for abortions.
Justice Stephen Breyer said he saw this case as the pro-choice version of the Casey case. Breyer mused that a ruling for California would be even-handed because “the sauce for the goose is sauce for the gander.” Farris explained that this would politicize the practice of medicine.
2. A Statute Riddled With Exemptions
Breyer pointed out that 60 to 70 centers exist throughout California, and asked if the trial court should develop the record on whether the law is targeting these clinics before the Supreme Court rules.
Farris responded that the gerrymandering is evident on the statute’s face. It contains so many exemptions (for doctors in private practice, general medical clinics, and pregnancy clinics that perform abortions) that the pro-life centers are practically the only ones that would be forced to post the state’s abortion notices.
Later, when California’s Klein stepped up to the podium to defend the law, Alito wanted to know why the state exempted so many other doctors and medical facilities from the notice requirement. While the law appeared neutral on its face, Alito said, the number of exemptions uncovered a “strange pattern” that could amount to intentional discrimination against pro-life centers.
Farris responded that the gerrymandering is evident on the statute’s face. It contains so many exemptions (for doctors in private practice, general medical clinics, and pregnancy clinics that perform abortions) that the pro-life centers are practically the only ones that would be forced to post the state’s abortion notices.
Later, when California’s Klein stepped up to the podium to defend the law, Alito wanted to know why the state exempted so many other doctors and medical facilities from the notice requirement. While the law appeared neutral on its face, Alito said, the number of exemptions uncovered a “strange pattern” that could amount to intentional discrimination against pro-life centers.
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