Tuesday, March 20, 2018

Tough day for California & abortion industry in Supreme Court

Today the U.S. Supreme Court heard oral arguments in NIFLA v. Becerra. The Supreme Court is facing the question if the state of California can force prolife pregnancy centers to advertise free abortions.

The consensus opinion between court watchers seems to be that California had a horrible day in court. Even abortion supporters agree:

Certainly the law is problematic on 1st Amendment grounds; you can't force someone to speak. California and several justices appeared to try to liken these forced advertisements to informed consent before an abortion. There's a big difference however; California's law is not requiring centers to provide informed consent of ultrasound procedures. That would not be objectionable. Instead, it forces prolife pregnancy centers to deface their own advertisements and advertise in their clinics for a hotline for free, tax-funded abortions.

Also, giving people diapers and advice isn't like a surgical procedure. Diaper rash can be truly awful, but you don't need informed consent before purchasing Pampers, and informed consent for diapers would not include advertising for free abortion.

In the oral arguments the justices seemed to focus on how the law was specifically targeting prolife pregnancy centers, exempting almost every other entity that comes into contact with pregnant women. Even the very pro-abortion justices were troubled by the focused nature of the law.

It's obvious to everyone that the law targets prolife pregnancy centers. California legislators, the media, prolife and pro-abortion groups, even the justices themselves all knew the genesis of this law. In particular pro-abortion groups billed it as addressing the problem of "fake clinics." That's how the law was thought up, lobbied, written, sold, and defended.

California's Deputy Solicitor General tried to do the impossible, however, in arguing that the law was really about reaching low-income women with pertinent information. In an act of sheer mendacity, he even threw away a lifeline from Justice Elena Kagan when she suggested the law is about dealing with a specific problem of deceptive centers, and that maybe that's a legitimate purpose for the law being so specific about prolife pregnancy centers.

You can read the oral arguments for yourself, but this is essentially how that argument went:

California: We're targeting prolife pregnancy centers! They are fake clinics!
Supreme Court: So, you're targeting prolife pregnancy centers it seems?
California: No, of course not your honor. Who? Us?
Supreme Court: Hmm, are you sure about that?
California: Well, maybe we're targeting them just a tiny bit, but really it was just in the back of our mind what those filthy fake clinics were up to when we crafted our FACT Act to STOP THE LIES!!!

It's always difficult predicting what the U.S. Supreme Court will do, even when the oral arguments appear to be pretty decisive. We'll go out on a limb, however, and say prolifers should be optimistic that today was the beginning of the end of California's Reproductive FACT Act (they capitalized FACT, in case you miss that part).

Such a victory would be important to pregnancy centers in other states facing repeated attacks on their 1st Amendment rights by hostile pro-abortion legislators.

The Supreme Court's decision in this case is expected to be released around June.