BreakPoint: Becerra vs. Free Speech

California’s Law Is Burdensome and Wrong

Should pregnancy care centers be forced to advertise abortions? California says yes. And soon we’ll see what the Supreme Court has to say.

On Tuesday, the Supreme Court heard oral arguments in what might be the most important religious freedom case of this term. Now you’re probably thinking, “Wait—didn’t the Court already hear arguments in the Masterpiece Cakeshop case?”

Yes, it did. But I’m talking about the other most important religious freedom case of this term: National Institute of Family and Life Advocates v. Becerra.

The case involves the California law that requires facilities licensed to provide ultrasounds and pregnancy tests to “disseminate a notice to all clients . . . stating, among other things, that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.” In addition, “unlicensed covered facilities” must declare that they do not provide medical services.

As we told you last November, this Act was squarely aimed at only one kind of facility: pro-life pregnancy centers.” Pro-life pregnancy centers are being required to display this notice prominently in their facilities and in their advertisements. The law even dictates the size of the font to be used.

California’s attempt to muzzle a message it disagrees with couldn’t be plainer. Yet, the Ninth Circuit Court of Appeals, “whose reasoning,” as George Will wrote, “is frequently novel and whose rulings are frequently overturned,” upheld the law.

Yesterday, it was the Supreme Court’s turn to hear the case. In the words of the New York Times, the California law “met a skeptical reception” at First Street, Northeast DC.

The word of the day—“burdensome.” Justice Kennedy called the statute’s notice requirement an “undue burden” on the right to free speech. Justice Sotomayor called them “burdensome and wrong.”

California’s Deputy Solicitor General, who represented the state, was asked if, under the law, a group that put up a billboard that only read “Choose Life,” would be required to include the notice. After series of evasive answers that exasperated some of the justices, he finally had to admit, “yes.”

The justices were also skeptical of the claim that the law was a neutral exercise in consumer protection and did not single out crisis pregnancy centers. Justice Elena Kagan used the word “gerrymandered” to describe the law’s drafting and application, “something,” she said “would be a serious First Amendment problem.”

In fact in some way or another, just about all of the justices seemed to agree with Justice Kennedy that the law’s goal was to “alter the content of [the centers’] message.” This was in keeping with the argument made by Alliance Defending Freedom CEO and General Counsel Michael Farris that with this law, the state had targeted “disfavored speakers,” whose message it disagrees with.

While Becerra is a primarily a free speech case, losing it would be disastrous. Not only would pregnancy centers be impaired, it would grant hostile governments the ability to target religiously-based dissent.

Farris summed up the stakes when he said that “When the government decides what people should and should not say, other freedoms are sure to disappear soon after. The government exists to serve its people, and not the other way around.”

That’s why, as Farris reminds us, “Even if you are not pro-life, [you don’t want] the government setting up its own advertising mandates for nonprofit organizations and then punishing any who disagree.”

Thankfully, at least from what we saw yesterday, it looks like a majority of the justices will agree with him. But we shouldn’t let down our guard. The unconstitutionality of this law should have been obvious from the very start.

That’s a reminder that as Justice Scalia said two decades ago, pro-lifers are “currently a disfavored class” in the courts and many legislatures. Little since then has changed.

So please, keep on praying.


Becerra vs. Free Speech: California’s Law Is “Burdensome and Wrong”

As John highlights, the unconstitutionality of this particular law should have been apparent from the outset. We must continue to pray for the justices of the Supreme Court as they hear cases like this one and deliberate on the merits. Ask God to give them wisdom and clarity to uphold and protect the right to free speech which is foundational in our Constitution.



Freedom of Speech Includes the Right to Remain Silent
  • George Will | National Review | March 18, 2018
U. S. Constitution, First Amendment
  • Legal Information Institute

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  • urbanvrwcmom

    When will Planned Parenthood and other abortion clinics be required to inform women about Pregnancy Resource Centers that helps both mothers and their children?

    • gladys1071

      i think both sides are wrong on this issue. Both sides want to manipulate women to do what they want, it is really too bad it is that way.

      • Scott

        How? One side (side-A) is trying to use the courts to force the other side (side-B) to say what it (side-A) wants. Do you want someone forcing you to say what they want you to say?

        This case is not about ideology.

        • gladys1071

          I am actually agreeing with you, but neither side is innocent, both are guilty of trying to manipulate women.

          • Scott

            I am glad you agree with me about the freedom of speech part. I will not bring up the part we disagree about. : – )

        • urbanvrwcmom

          What I asked about abortion clinics is only fair. You know, the equal time that leftists are always talking about. Abortion clinics want to crack down on PRC’s because for every client that carries to term, it’s money that abortionists lose. On the other hand, Pregnancy Resource Centers are privately funded and staffed by mostly volunteers; I make monthly donations to a PRC that my church supports. By the same token, my hard-earned money supports Planned Parenthood via taxes, so I have every right to take issue with it. Spare me the claim about the mammograms and other non-abortion/birth control services Planned Parenthood provides.

          • gladys1071

            Planned parenthood does provide free birth control, i know by first hand experience. I drove a friend of mine to a Planned parenthood where she got her birth control pills for free because she was unemployed. I know a married woman that had an IUD put in for free at Planned Parenthood.

            So for those women they are glad they were able to receive those services.

          • urbanvrwcmom

            Bully for your friends! Birth control is provided, but mammograms are NOT. When I went to a Planned Parenthood clinic, they refused to provide prenatal care, (unless I were a white, blue-eyed blonde, but I digress) The “counselor” put me on a guilt trip because I didn’t want an abortion. I was also attacked for practicing the abstinence that’s far more effective than contraceptives. The 99% effectiveness of the pill isn’t enough for me. But that’s just me using common sense.

          • gladys1071

            sorry to hear about your experience. I have never had to go to them for myself, but i only know the experience of my two friends.

          • Scott

            I agree with you… although I wouldn’t use the term “leftists.” : – ) I do not want my tax dollars supporting organizations like Planned Parenthood either. Supporting local PRC’s is a great way to walk our talk. If I could personally purchase an ultrasound for every PRC I would!

  • Scott

    You may use any term you like. : – ) As a man, I have found using such terms keep people (especially women) from listening to what I say. Those types of terms provoke anger and that anger prevents people from opening up. I am learning Colossians 4:6, although I could stand to get better at it. : – )

    Also I don’t like to associate with political ideologies/sides… I would rather be associated with Jesus.

  • Scott

    Thank you for the encouragement! : – )

    As a prodigal returned home, unfortunately my story is a tale of two lives, I have a somewhat unique perspective. I have lived both as a (very) rebellious atheist and now as a Christ follower… As an atheist breaking all the “rules,” I experienced no inner peace. As a Christian, following (attempting to anyway) all the rules, I have experienced an inner joy/peace I didn’t think possible. It seems like more people would want that? I imagine fear keeps most people from committing to God’s moral laws… perhaps it is fear that the “rules” will somehow rob them of the last bit of (perceived) fun they so desperately cling to? In my experience, God’s moral laws/rules liberated me from the negative affects of my sin.