On NIFLA v. Becerra

This week the Supreme Court of the United States issued their opinion in National Institute of Family and Life Advocates (NIFLA) v. Becerra. This is an important 1st Amendment case and conservatives should be grateful that five justices respect the Constitution enough to issue a narrow opinion defending freedom of speech.

The case is about whether or not a crisis pregnancy center that advocates for Life should be compelled by the government to advertise information on abortion clinics as an alternative to keeping the pregnancy. The controversy before the court came from a California state law, FACT Act, which requires pregnancy centers to hang advertisements for abortion clinics in their offices and have staff present contact information for abortion clinics. This is a restrictive law that forces a prescribed speech on a group that disagrees with such speech. Freedom of speech is a pillar of our Bill of Rights. A pluralist republic cannot survive without freedom from government imposed speech, especially when such speech violates a person’s principles.

Justice Clarence Thomas wrote the opinion for the court. In it he writes, “The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.” He goes on to say, “The licensed notice regulates speech as speech. “

This case should’ve been a layup for 1st Amendment protections. One would think that the court would rule unanimously in favor of free speech. But somehow four liberal Justices, who must have been influenced by political factors, felt it appropriate for Life advocates to have to advertise abortion as a practical alternative to keeping a pregnancy.

In Justice Stephen Breyer’s dissent he expresses his belief that the prescribed speech in this case is a just a disclaimer used in “professional speech,” which can be fully regulated. But Thomas says that that kind of thinking will only increase government power and further restrict individual liberty when he writes, “All that is required to make something a ‘profession,’ according to these [lower] courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

Breyer’s dissent draws no difference between prenatal care information and advertisements for abortion, which is wrong. The majority opinion explains that the notice includes controversial content in that it explicitly states information on obtaining an abortion as a viable alternative to carrying the pregnancy. Remember now, the group that brought the lawsuit in the first place is the National Institute of Family and Life Advocates. At their very core they hold abortion to be anything other than a viable alternative. The notice that the law requires is speech that this group does not agree with at all. Compelling them to make the statement clearly violates their 1st Amendment rights.

My favorite line of the majority opinion is this; “the people lose when the government is the one deciding which ideas should prevail.” Yes! And the FACT Act compels government approved ideas to be endorsed by those who disagree. That’s not freedom, that’s tyranny.

But may be the most important part of this case is the concurring opinion written by Justice Anthony Kennedy-

“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.

“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.”

Well said, Justice Kennedy. And with that it pains me to see that this was a 5-4 opinion. To liberals, free speech can only mean agreeing with them. This really should have been a 9-0 layup for the 1st Amendment, but we’ll take what we can get. Glad to see free speech is still alive in the United States.