In June, 2018, the U.S. Supreme Court, in a case called National Institute of Family and Life Advocates “NIFLA” v. Becerra, addressed a challenge to a California law called the Reproductive “FACT” Act. It was enacted to regulate crisis pregnancy centers. They are “pro-life (largely Christian belief-based) organizations” that “aim to discourage and prevent women from seeking abortions.” The FACT Act states that centers that do not perform abortions must provide this prominent, pre-written notice to clients: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services including ***abortion for eligible women.”
The Ninth Circuit Court of Appeals rejected a constitutional challenge to the FACT Act. The U.S. Supreme Court, however, in a 5 to 4 decision, reversed that ruling.
Justice Thomas, writing for the majority in NIFLA, stated that California’s claimed interest— providing low-income women with information about state-sponsored services—is “wildly under-inclusive.” He noted that California could easily have accomplished its supposed purpose without needlessly requiring pro-life centers to join its effort.
It could “inform the women itself with a public-information campaign.” But “California cannot co-opt the licensed facilities to deliver its message for it.”
The majority also held that California has the burden to prove that the FACT Act is justified and not unduly burdensome, and “it has not met its burden.” The state-required “how to get a free abortion” notice at Christian, pro-life crisis pregnancy centers “imposes a government-scripted, speaker-based disclosure that is wholly disconnected from California’s informational interest.”
The majority also held that there exists no such category as “professional speech,” and that to invent one would “give the States unfettered power to reduce a group’s First Amendment rights.”
The majority concludes that the FACT Act violates the First Amendment. Thus, the remand of the NIFLA case to the lower court should be for the purpose of entering a preliminary injunction in favor of the Christian plaintiffs barring the application of this law to them.
“Swing” Justice Kennedy, in a concurring opinion joined by Chief Justice Roberts and Justices Alito and Gorsuch (the Court’s newest member, who has shown that he supports religious liberty), stated that the FACT Act is an “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 suggests “a real possibility that these individuals were targeted because of their beliefs.” Justice Kennedy also highlighted that the California Legislature made “the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking.’ But it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable. 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.”
Given his retirement announcement shortly after this statement in NIFLA, we now see it was Justice Kennedy’s “parting shot” at government efforts to (a) control religious beliefs, and (b) mandate speech. Good for him, and America.