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.

That’s not a bad way to cap off thirty years on the Court.

Ellen Kolb is a pro-life writer and activist in New Hampshire. She writes at ellenkolb.com and Leaven for the Loaf. 

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Update to a November 2017 post: California’s attorney general is on the U.S. Supreme Court’s schedule for March 20, at which time he can  explain why he should be able to tell pro-life pregnancy centers to advertise for abortions. That ought to elicit some searching questions from the Justices.

The case is National Institute of Family and Life Advocates [NIFLA] v. Becerra. NIFLA is a group of nonprofit pro-life pregnancy centers in California. Xavier Becerra is the state’s attorney general. The law in dispute is called California’s Reproductive FACT Act.  It requires that certain types of facilities post and distribute information on the availability of free or low-cost access to abortion. It’s as though business is so lousy at abortion clinics that the state has to dragoon pro-life agencies into doing their advertising for them.

The type of facility is defined in such a way that the law only applies to about 200 nonprofit pro-life clinics, not to any of the other thousands of places in California where a pregnant woman might go for assistance. From NIFLA’s brief to the Supreme Court (references omitted; emphasis added):

The legislative record expressly states that the impetus for the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act…was disagreement with pro-life centers’ messages. Legislative committee reports with bill sponsor statements noted “that, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California,” which “aim to discourage and prevent women from seeking abortions.”…Although the bill sponsor claimed that these centers “often confuse [and] misinform” women,…neither the legislative history nor the record contains any objective or impartial evidence that pregnancy centers like Petitioners actually “misinform” anyone about their medical status or services[.] 

There are fines for noncompliance. Anyone who has volunteered for a pro-life pregnancy care center knows that such agencies are lean operations; a fine need not be steep to be ruinous.

This is a First Amendment case. Can the government compel a nonprofit organization to deliver a message inconsistent with the organization’s mission? California might be having financial problems, but apparently the AG’s budget includes resources to argue this case all the way to SCOTUS. NIFLA is relying on assistance from Alliance Defending Freedom, the same legal group that successfully represented Eleanor McCullen in the Massachusetts buffer zone case.

Stay tuned.

Ellen Kolb is a writer and pro-life activist based in New Hampshire. Read more at ellenkolb.com,

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