Anthony Kennedy has announced that he will step down from the U.S. Supreme Court on July 31, after 30 years of service. He assured himself a place in history two years ago, for good or ill, with the Obergefell decision. Aside from that, he earned a reputation as a swing (i.e. unpredictable) vote on various issues. One of those 5-4 decisions is on my mind today.
Yesterday, the court ruled in NIFLA v. Becerra that pro-life pregnancy resource centers (PRCs) cannot be forced to advertise for abortion. (I’ve been watching that case ever since the litigation began.)The same case ruled that non-medical pro-life PRCs cannot be compelled to announce their non-medical nature in a manner prescribed by a pro-abortion government, when the same government doesn’t impose that requirement on similar agencies.
Justice Kennedy concurred in the 5-4 NIFLA decision written by Justice Clarence Thomas. Kennedy’s concurrence deserves more attention than it’s likely to get this week, in light of his resignation and other SCOTUS news.
NIFLA at its core was a First Amendment case: was the state of California violating the First Amendment rights of pro-life agencies by forcing those agencies to deliver pro-abortion messages? Justice Thomas carefully outlined the reasons why the answer had to be Yes. It’s astounding that four Justices would have let the California law stand. (No surprises: the minority consisted of Breyer, Ginsburg, Sotomayor, and Kagan.)
Here’s the bulk of Justice Kennedy’s concurrence (emphasis added). Bear in mind that this man was not exactly a lion of the pro-life movement. But the state of California’s attempt to coerce pro-life pregnancy centers to help market for abortion was too much for him to stomach.
I join the Court’s opinion in all respects.
…It does appear that viewpoint discrimination is inherent in the design and structure of this [California] Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.
And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v.Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.