The state of California has a law requiring “crisis pregnancy centers” — that is, anti-abortion operations — to notify those who come in that they have a right to an abortion and that they are available with taxpayer funding in that state. Until yesterday, when the Supreme Court struck down that law on First Amendment “compelled speech” grounds.
The lineup was exactly what one would expect, the five conservatives in the majority and the four liberals in dissent. Justice Breyer wrote the dissent and pointed out the obvious inconsistency in the majority view, which is that the court has upheld requirements that clinics and doctors who perform abortions must inform patients about alternatives, but struck down this law, which does the same thing from the other side. And there’s an interesting history here.
The Supreme Court twice struck down laws requiring abortion clinics and doctors to inform patients about adoption services, requiring them to tell patients that life begins at conception, and other things, on the same grounds they struck down this California law. But then in 1992’s Planned Parenthood v Casey ruling, written by Justice Kennedy — the case in which he initially voted to strike down Roe v Wade and was convinced to switch sides by Justices O’Connor and Souter — they upheld a Pennsylvania law requiring such disclosures, while still preserving the central finding of Roe.And that ruling explicitly overturned the earlier two rulings. But now they’re suddenly going back to those previous rulings on compelled speech, but from the other direction — it’s apparently okay to require abortion clinics to inform people of legal alternatives to abortion, but not okay to require these fake pregnancy centers to inform people of their legal right to an abortion. Breyer writes in his dissent:
“If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context.”
And he’s right. Both are entirely legal services. If it’s constitutional to compel speech in one direction, why isn’t it in the other direction? Apparently because the majority of the court just doesn’t like the message. Oh, sweet irony. The court engages in content discrimination in the name of opposing content discrimination. You can read the full ruling here.