Monday, March 12, 2018
Imagine accompanying your loved one to their next doctor's appointment, where they are being treated for lung cancer. While waiting, you happen to see an advertisement for cigarettes on the bulletin board. When the doctor calls you back, you ask why the office would possibly advertise such a flier. The doctor simply shrugs and says, "What can we do? It's the law."
The U.S. Supreme Court will take up a case with similar details on March 20 when they hear arguments in NIFLA v. Becerra. At issue is whether pro-life pregnancy help centers must inform women about the availability of abortion as a medical procedure. California passed such a law in 2015, and it has been hung up in the courts ever since.
Because it involves abortion, you would be forgiven for overlooking this case's most serious question: whether the government may require an individual or organization to endorse a message with which it disagrees. Regardless of society's differing views on abortion, surely we can agree that government-compelled speech of this sort is deeply problematic. In order to shore up the First Amendment's protections for free speech for everybody, California's law must be struck down.
Compelled speech of the kind in this case is not a new challenge confronting the Supreme Court.
During World War II, the justices ruled that West Virginia schools could not require students to stand and recite the pledge of allegiance. In the opinion for the Court, Justice Robert Jackson memorably wrote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
NIFLA v. Becerra follows this logic seamlessly, and ought to be decided in a similar fashion.
In defending the law, the state of California emphasizes the primacy of health care for women and the importance of keeping women informed of their options concerning their pregnancies. No one denies the importance of providing the best care for pregnant women. But the very mission of pregnancy help centers is to counsel women that abortion is not, in fact, in their best interest.
Like the cigarette advertisement in the doctor's office, California's requirement violates the deeply held professional (and personal) convictions of these clinics and their staffs.
There are instances when compelled speech may be permitted under the First Amendment. Specifically, if the government can demonstrate a compelling interest in requiring the endorsement of a specific message, that requirement is likely to stand.
This is what California argues in this case, that informing pregnant women of their health-care options amounts to a compelling state interest. However, California has many other forums and opportunities to inform women about access to abortion without burdening pregnancy help centers. These centers need not be involved with the state's efforts. Absent a compelling state interest here, California's law must be struck down.
Nothing about the outcome of NIFLA v. Becerra will affect one woman's ability to obtain an abortion in California. You can believe women should have legal access to abortion and still side with pregnancy help centers in this case--indeed, you should.
Regardless of specific context, the First Amendment must protect against compelled speech. Otherwise, everybody's free speech rights will be in jeopardy.
Daniel Bennett is an assistant professor of political science at John Brown University. He researches the intersection of law, politics, and religion in the United States, and is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement.
Editorial on 03/12/2018
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