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    Free Speech and Abortion Collide: Supreme Court Hears One of Its Biggest Cases of 2018

    Updated: March 20, 2018 at 3:41 pm EST  See Comments

    Americans on both sides often view abortion as the defining issue for the Supreme Court. But the case coming before its panel of justices today represent a legal fight that extends beyond the typical pro-life and pro-choice debate.

    National Institute of Family and Life Advocates (NIFLA) v. Becerra is as much a free speech case as an abortion case; at stake is whether the government can require pregnancy resource centers to share information about the availability of abortion elsewhere—advertising to clients an option that the centers, by definition, oppose.

    The suit involves a network of more than 100 pregnancy centers in California, where the state’s 2015 Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act mandates that such centers post contact information for obtaining state-funded free or low-cost contraception and abortions in their county.

    Along with the wave of pro-life legislation at the state level in recent years, these faith-based clinics—often called crisis pregnancy centers or CPCs—represent a major force in the movement to end abortion; with more than 3,000 in the US, they outnumber abortion clinics three to four times over.

    Their growing prevalence in local communities and online search results has also hurt their reputation among the pro-choice crowd, who often characterize pregnancy centers as “deceptive” for marketing to women in unsupported pregnancies while not offering resources related to abortion.

    This negative perception is partly behind the California law; a legislative committee deemed it unfortunate that such centers “aim to discourage and prevent women from seeking abortion.”

    “What California considers ‘unfortunate’ is the very thing the First Amendment protects: speech and activism,” wrote Brian Miller of the Center for Individual Rights, a nonprofit free speech law firm, for Forbes. “California is within its rights to choose a policy and implement it. But it cannot compel those who dissent to speak the state’s message. Nor can it target commendable acts of charity because it disagrees with the underlying message.”

    National Institute of Family and Life Advocates (NIFLA) v. Becerra is as much a free speech case as an abortion case; at stake is whether the government can require pregnancy resource centers to share information about the availability of abortion elsewhere—advertising to clients an option that the centers, by definition, oppose.

    The suit involves a network of more than 100 pregnancy centers in California, where the state’s 2015 Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act mandates that such centers post contact information for obtaining state-funded free or low-cost contraception and abortions in their county.

    Along with the wave of pro-life legislation at the state level in recent years, these faith-based clinics—often called crisis pregnancy centers or CPCs—represent a major force in the movement to end abortion; with more than 3,000 in the US, they outnumber abortion clinics three to four times over.

    Their growing prevalence in local communities and online search results has also hurt their reputation among the pro-choice crowd, who often characterize pregnancy centers as “deceptive” for marketing to women in unsupported pregnancies while not offering resources related to abortion.

    This negative perception is partly behind the California law; a legislative committee deemed it unfortunate that such centers “aim to discourage and prevent women from seeking abortion.”

    “What California considers ‘unfortunate’ is the very thing the First Amendment protects: speech and activism,” wrote Brian Miller of the Center for Individual Rights, a nonprofit free speech law firm, for Forbes. “California is within its rights to choose a policy and implement it. But it cannot compel those who dissent to speak the state’s message. Nor can it target commendable acts of charity because it disagrees with the underlying message.”

    Though the NIFLA network had petitioned the Supreme Court under both the freedom of religion and freedom of speech clauses of the First Amendment, when the court decided to take on the case back in November, it granted only the free speech challenge.

    The justices will have to parse the nature of the communication in question. All facilities offering pregnancy tests and counseling in California, licensed or not, are required to display on site and/or in client materials, advertising, and online 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 [insert the telephone number].

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