On Tuesday, the U.S. Supreme Court heard the long-awaited oral argument in NIFLA v. Becerra, a case deciding whether the state can force pro-life pregnancy help centers to make the “choice” between advertising for abortion or else getting regulated into oblivion for refusing to comply with the state’s unconscionable demands.
As one of the incredibly blessed few to actually witness the arguments firsthand, here’s four things that stood out most of all.
1. California’s Got Zero Rationale
The State of California danced all around its underlying claims that pregnancy centers are deceptive—even though the claims themselves formed the backbone of AB775. In the end, California Attorney General Xavier Becerra’s team conceded that the state has never brought any charge against pregnancy centers for alleged false and misleading advertising.
Josh Klein, arguing on Becerra’s team, steered clear of long-touted (yet, unfounded) claims that pregnancy centers pose as abortion clinics.
JUSTICE GINSBURG: There were legislative findings about false and misleading representations. Has California ever brought charges against any of these places for false and misleading advertising?
MR. KLEIN: I'm not aware that the state has.
Neither am I, Mr. Klein. In fact, the pro-abortion lobby has been utterly incapable of producing a woman who’s ever been harmed by a pregnancy center.
Even though the abortion lobby has spent the past two decades harassing pregnancy centers, they’ve never once proven their underlying argument, that pregnancy centers harm or deceive women in any way. In the meantime, they’ve left behind a smoldering ash heap of defunct laws and a mounting body of evidence that proves the very opposite of their point.
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Most recently, in a Fourth Circuit opinion striking down another bogus signage requirement, the court noted the following: “After seven years of litigation and a 1,295-page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there.”
NARAL sought to rectify the situation by publishing EndTheLies.com, a website chronicling the women who experienced deception inside pregnancy centers. The trouble is, they still could not produce any such woman.
After a month, the site still features only three women—two of whom are abortionists.
All of this lack of evidence put Klein in a tough spot: Either he could admit that the law targets pregnancy centers just for being pro-life, or he could try and argue that the law has nothing to do with targeting centers—undercutting the clear intent of the law as set forth from its earliest legislative days.
Caught in this conundrum, Klein tried to find a mushy middle, claiming that the intention of the law was to inform women.
The Justices were not buying it, as the following question from Justice Alito demonstrated:
“If you have a law that's neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you're left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it's possible to infer intentional discrimination in that situation?”
Klein, despite his best efforts, had to no choice but to say yes.
2. California’s Got Zero Friends in High Places
The Court saw this law exactly for what it is: an oppressive edict intended to impose heavy burdens on pro-life pregnancy centers because of their deeply held beliefs about the sanctity of life.
Early in the argument, Justice Breyer said to Alliance Defending Freedom (ADF) attorney Michael Farris:
“You say, which is certainly a point, that this statute picks out 60 to 70 really pro-life facilities and says you have to post these signs, but nobody else does… that sounds like you have a point there if that's correct.”
As the argument went on, it became increasingly obvious that NIFLA and ADF were substantially correct. Through a series of sweeping exemptions, Justices established that the law applies only to those clinics who are nonprofit, serve primarily pregnant women and are not willing to dispense abortifacient drugs.
Sound familiar? It should. The justices thought so too, and Justice Kagan was particularly disturbed by it:
“If it has been gerrymandered, that's a serious issue. In other words, if it's like, ‘look, we have these general disclosure requirements, but we don't really want to apply them generally, we just want to apply them to some speakers whose speech we don't much like.’”
Not only is the law gerrymandered to apply only to pro-life pregnancy clinics, but the disclosures themselves are burdensome. The unlicensed clinic disclosure, for example, requires centers to post signage saying that the center is not licensed as a medical facility and does not have a licensed medical provider.
Never mind, of course, that no license is required—or even available—for those who are helping pregnant women with non-medical services such as diapers, baby wipes, formula, car seats, emotional support and parenting classes.
Worse, the disclosure has to be made in up to 13 different languages, and in a font size larger than the content of all print and digital advertising.
Justice Ginsburg observed:
“I mean, it is one thing just to say: We are not a licensed medical provider. But if you have to say those two sentences in 13 different languages, it can be very burdensome.”
Justice Ginsburg was not alone in thinking so.
JUSTICE SOTOMAYOR: Would it be fair to say [that if an unlicensed facility] has an ad that says just "pro-life" and puts its name. Does it have to give the notice; yes or no?
MR. KLEIN: Yes, if it meets the other criteria.
JUSTICE SOTOMAYOR: That seems to me more burdensome and wrong.
Justice Kennedy’s remark early in California’s argument summed up what seemed to be the feeling on the bench:
“It seems to me that … this is an undue burden … and that should suffice to invalidate the statute.”
3. California’s Got Zero Leg to Stand On
From its very origins in the State Assembly, pro-life leaders have identified the startling free speech issues at stake in the so-called “Reproductive FACT Act.” When it came down to it, California’s Attorney General’s office had no way to defend it—at least not according to the U.S. Constitution.
This exchange really speaks for itself:
MR. KLEIN: If in application to a kind of ad that the centers otherwise have been running and would run, if it makes it too burdensome to place those ads, the statute would be unconstitutional as applied to that.
JUSTICE ALITO: Well, what is the situation for Los Angeles County? This is California law. You should know the answer. [Suppose] somebody is going to put up an ad. A covered unlicensed facility posts an ad in Los Angeles County. In how many languages must they print the disclosure -- the disclaimer?
MR. KLEIN: It would be 13. And ... if a plaintiff showed … the kind of ad that they used to run and that it would be impossible to run it that way, it would be unconstitutional.
Pro-tip for you non-lawyer types: It’s hard to come back after you’ve admitted your own law is unconstitutional.
4. California’s Missing the Picture
A picture’s worth a thousand words, but this image from Heartbeat International’s amicus brief might be worth a Supreme Court victory.
If it sounds ridiculous that an advertisement would contain a disclaimer in 13 separate languages, imagine what it looks like in print:
Justice Gorsuch referenced this image early in the argument, including Heartbeat’s argument that if pregnancy centers decided to run this advertisement against themselves, it would cost them roughly $9,000 per month.
As Mr. Farris stated in his closing remarks, this is “clearly burdensome.”
A decision in this case is expected in June.
