In another of today’s SCOTUS decisions, the Court ruled in NIFLA v. Becerra that a California law requiring crisis pregnancy centers (pregnancy counseling clinics usually run by pro-life Christians) to post notices that “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” was an unconstitutional violation of free speech.

The vote was the familiar 5-4 and once again came down to the swing vote of Kennedy siding with the conservative wing, and all the liberal justices dissenting.

Headlines in the MSM dealing with the decision tend to emphasize that this is a win for pro-life clinics (see this, for example), whereas conservative media seems to have more of a focus on the free speech aspects (an example is here). The former is a political emphasis, whereas the latter is a constitutional and legal one.

Here’s the legal reasoning of the majority:

Though the law related specifically to abortion, free speech was the fundamental issue at stake…

Justice Clarence Thomas’s majority opinion cast the case…clearly, noting that there exists no such category in America as “professional speech” and concluding that to invent one would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” In a short concurrence, Justice Kennedy dispensed with the idea that the First Amendment is outmoded. The viewpoint discrimination inherent in the FACT Act was “a matter of serious constitutional concern,” Kennedy concluded, and the law served as “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”…

As Justice Thomas noted, the state government could very easily have accomplished its supposed purpose — ensuring that California women are aware of the low-cost abortion program — without needlessly conscripting pro-life centers into its effort. “[California] could inform the women itself with a public-information campaign,” Thomas observed. “California could even post the information on public property near crisis pregnancy centers. . . . Either way, California cannot co-opt the licensed facilities to deliver its message for it.”

Instead, the state intentionally targeted pro-life health centers and insisted that they violate their beliefs by facilitating a procedure they believe to be immoral

The is the correct decision IMHO. It is also another decision that almost certainly would have gone the opposite way had Garland been appointed to the Court instead of Gorsuch. On such a narrow thread our liberties depend.

Full decision here:

National Institute of Family and Life Advocates, DBA Nifla, Et Al. v. Becerra, Attorney General of Californ… by Legal Insurrection on Scribd

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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