9th Circuit considers pregnancy center free speech case

A federal appeals court is considering whether a state can commandeer pregnancy centers to deliver government-approved messages about abortion options.

Last fall, California Gov. Jerry Brown signed a law requiring all California health facilities to tell clients about the availability of free or low-cost abortion. Pro-life advocates dubbed the law the “Bully Bill” because it forces community-funded crisis pregnancy centers to post signs that refer women to abortion providers in violation of their religious beliefs.

Two of those pregnancy centers sued: A Woman’s Friend Pregnancy Resource Clinic and Crisis Pregnancy Center of Northern California. Attorneys from Alliance Defending Freedom (ADF), the American Center for Law and Justice, and Pacific Justice Institute argued on their behalf before the 9th U.S. Circuit Court of Appeals on June 14.

The pregnancy centers don’t want the sign law enforced while the constitutional challenge is pending in lower court. So the centers asked the appellate court to reverse a lower-court ruling that lets California enforce the law starting Jan. 1. Even the lower court conceded pregnancy centers would suffer irreparable harm to First Amendment rights if the law takes effect as scheduled.

If the government infringes on a First Amendment freedom such as free speech or free exercise of religion, it must prove it has tried all other options to accomplish its goals. Attorney Noreen Skelly argued on behalf of the California attorney general’s office that the signs were the best way to convey the information about abortion availability: “Because pregnancy decisions are time-sensitive, and care early in pregnancy is so important, the legislature determined it needed to do more. And so they wanted to make sure California women quickly obtained information and services to make timely reproductive decisions.”

But Judge John Owens asked a pointed question: “Why couldn’t they do that through an advertising campaign, like with smoking? … Why couldn’t the state have put signs up or put billboards right in front of those locations saying, ‘Hey, if you’re coming in here, understand what you’re getting,’ as opposed to making them convey the state’s message?”

Skelly said that would waste government resources, but Kevin Snider of the Pacific Justice Institute reminded the court that “the First Amendment does not permit the state to sacrifice speech for efficiency.”

Two types of pregnancy help centers are targeted under the law—licensed facilities with doctors and nurses on staff and non-licensed facilities that do pregnancy testing and ultrasounds and collect health information. It’s those facilities that don’t need state licensure on which Jonathan Eisenberg of the California attorney general’s office focused.

“The goal of disclosure is to make sure women patronizing understand facilities are not licensed by state and no medical professionals on staff,” Eisenberg said.

At issue in this case is the right of religious nonprofit clinics to speak their pro-life message as they give free help and counseling to women in crisis pregnancies. A ruling here has much larger implications for religious freedom—speech restrictions have a way of expanding if not checked.

The 2nd and 4th circuits already struck down similar laws as unconstitutional. A decision from the 9th Circuit on enforcing the law during the legal challenge could come at any time.

Listen to “Legal Docket” on the June 27 edition of The World and Everything in It.