The U.S. Supreme Court this week heard oral arguments in National Institute of Family and Life Advocates v. Becerra, a case in which pro-life pregnancy care centers are challenging a California law requiring them to promote abortion. A number of justices appeared to have concerns with California’s Reproductive FACT Act, which mandates that those centers post notices that the state provides free or low-cost abortion and contraception services.
Justice Samuel Alito zeroed in on how the law appears to target pro-life ministries. He remarked to Joshua Klein, Deputy Solicitor General of California, “If you have a law that's neutral on its face, but then it has a lot of crazy exemptions,... it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it's possible to infer intentional discrimination in that situation?” He suggested the case before them offered a “very suspicious pattern.” Justice Neil Gorsuch also questioned why, if California had a general desire to spread an educational message about abortion, it should “free-ride on a limited number of clinics to provide that information?”
Among the court’s more liberal members, Justice Elena Kagan voiced concern about the question of the California law being “gerrymandered” to apply to disfavored speakers, saying that would be “a serious issue.” Justice Sonia Sotomayor, while having tough questions all around, at one point responded that the California counsel’s stated position is “burdensome and wrong.”
Perhaps most strikingly succinct was a statement from Justice Anthony Kennedy. He asked Michael Farris, president of Alliance Defending Freedom (ADF) and lead counsel for NIFLA in this case, about a situation in which a “Choose Life” billboard would require a 29-word California-mandated disclosure. “Because it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute,” Kennedy said. Farris replied, “Yes, your honor, that's our position.”
After the oral argument, Farris said in a statement, “A government that tells you what you can’t say is dangerous, but a government that tells you what you must say—under threat of severe punishment—is alarming.” He declared that he was optimistic the justices will protect free speech.
By Aaron Mercer, Vice President of Government Relations
Published: March 23, 2018