Wednesday, June 27, 2018
In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.
The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra. Concurrence by Justice Kennedy. Dissent written by Justice Breyer.
Commentary on the decision:
Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy
On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.
For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****
But the court’s decision to treat crisis pregnancy centers as religious institutions has created two contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different.
Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement
These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”
Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions
Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)
One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.
On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.