Christian leader James Dobson, founder of Focus on the Family, is urging the owners of pro-life pregnancy centers in California to practice civil disobedience in the face of a new rule dubbed “The Reproductive FACT Act” by state legislators. “If California attempts to enforce this law,” Dobson said in a Tuesday statement, “then do not comply. Make them put you in jail.”
The measure requires all licensed pregnancy clinics to post and distribute the following notice: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number].”
Pregnancy centers that do not offer medical services and are not licenced by the state must post signs announcing that the facility “is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”
A lawsuit challenging the measure on First Amendment grounds was rebuffed by the U.S. Court of Appeals for the 9th Circuit last week, upholding a lower court decision not to halt enforcement of the law.
“Christians across America must express their outrage at the Ninth Circuit Court’s ruling to uphold California’s so called ‘Reproductive FACT Act,’” said Dobson. “Since Roe. V. Wade, privately funded crisis pregnancy centers across America have provided a refuge and an alternative to women who might have otherwise chosen abortion. … This ruling now forces these clinics to violate their sincerely held religious beliefs, and it is an affront to our constitutionally mandated rights to life and to religious freedom.”
“This decision is further affirmation of the importance of this presidential election,” said Dobson. “Hillary Clinton or Donald Trump will be responsible for appointing the replacement of Antonin Scalia, and–in all likelihood–two to three other Supreme Court Justices. That court will eventually decide whether or not this remains the law in California and becomes law across America.”
Lawyer Ken White, of Popehat, has more about the California law and the court’s decision, which is worth reading if you care about why the 9th Circuit decided how it did. A lot of it turned on the level of scrutiny being applied.
When a court applies scrutiny, it’s holding the government’s justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it’s defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law.
In the middle you’ve got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you’ve got the “rational basis” test, which almost any law can pass.
In this case, the Ninth Circuit decided the compelled speech in question was “professional speech,” which triggers intermediate scrutiny. White notes that “content-based speech regulation often—usually—triggers strict scrutiny.” But in this case, “the court said that while the law is content-based, it’s viewpoint-neutral—that is, it does not discriminate based on one particular opinion or view, and applies to all clinics regardless of how they feel about abortion.”
“The ‘viewpoint neutral’ argument seems odd here,” he adds. “Under the Ninth Circuit’s logic you could compel any statement so long as you compelled it for everyone equally—both people who agreed with it and people who disagreed. I’m not sure that’s right. … I think the better argument is that the compelled speech here is informational and about an area—medical services—generally regulated by the government.”
In any event, the appeals court concluded that the California government had a legitimate interest in women getting information about reproductive services and had tailored the requirements of this law to that purpose. The court wrote that state-licensed medical clinics are not a “soapbox” and pointed out that unlicensed pregnancy clinics aren’t compelled to post any information about contraception or abortion.
“If [California] tried to regulate unlicensed organizations that offered counseling, that would be outrageous and obviously unconstitutional,” White concluded his analysis of the decision. “I would say, instead, that the law illustrates the inherent tension between free speech and government regulation of professions.”