A Battle Over Abortion and Free Speech

The Supreme Court is set to hear a case over California’s regulation of “crisis pregnancy centers,” which try to talk their clients out of ending their pregnancies.

A man holds anti-abortion flyers as he waits for people to approach Planned Parenthood in downtown Washington, D.C., April 4, 2012. (Jacquelyn Martin / AP)

Updated at 2:43 p.m. ET

Anyone who wants to understand National Institute of Family Life Advocates v. Becerra, which the Supreme Court will hear Tuesday, would do well to start with a viewing of Jackson, Maisie Crow’s 2016 documentary about the abortion battle in Mississippi.

In one memorable scene in the film, Barbara Beavers, director of the pro-life Center for Pregnancy Choices, asks donors to fund a “crisis pregnancy center” across the street from the state’s only abortion clinic: “The closer you can get the CPC to the abortion clinic,” she explains, “then the closer you can get a woman to choose life for her child. Having a place that’s walking distance, that’s huge, because a lot of times these women are dropped off. That’s the greatest need, for the CPC to be as close to the abortion clinic was we can get it.”

In the film, protesters near the abortion clinic intercept women entering: “You know there’s a Crisis Pregnancy Center and they offer lots of free help and sonograms?” says one. Another asks, “Can I give you this free card so you can go to a free clinic?”

The film goes inside both the abortion clinic (called the Jackson Women’s Health Organization), and CPC, the “crisis pregnancy center.” Inside the clinic, Dr. Willie Parker, the medical provider, counsels a young woman (her face is not shown) who has come for an abortion: “The state requires me to tell you that there’s a risk of bleeding, there’s a risk of infection, there’s a risk of damage to any of your organs. Now, guess what? All of those complications are also associated with having childbirth. The thing I have the most problem with having to tell you but am required to tell you is that if you have an abortion it might increase your risk for breast cancer. There’s no scientific evidence that abortion increases your risk of breast cancer. I can’t say enough: This is your decision, this is not anything you have to be ashamed of. Disregard those people out there. They know nothing about your life, they know nothing about you. This is health care and we’re here to make sure you can have safe, legal access to abortion. And that’s your choice and that’s your right to do that.”

A young client named April Jackson, who has just found out she is pregnant with a fifth child, consults the Christian pregnancy center. The clinic’s receptionist keeps a small sign at her desk to remind herself of her mission: “We exist to erase a woman’s perceived need for an abortion.”

“I ain’t looking for no more,” April Jackson tells a counselor. But the staff of the CPC remains relentlessly optimistic. The sonographer offers her a print out with “HI, MOM!” at the top. (“I ain’t really that happy about it but I guess if I look at it I will be,” April responds.) Another assures her that one of her children is “going to have to be a great big football player and make Momma lots of money.” After her clinic visit, April tells the camera, “When I was at the CPC clinic they told me that if I had an abortion I could die from it.”

In the end, despite her misgivings, April Jackson gives birth to her fifth child, a boy named Malikye. After Malikye’s birth, CPC staff discourage her from seeking birth control. “I think it’s healthier not to have sex until we find somebody to father all these babies,” says a CPC counselor.

“I don’t think birth control is going to be the answer,” Barbara Beavers explains to the camera. “God’s ways work and that’s why we don’t give birth control and all that kind of stuff, because God’s ways work.”

At the end of Jackson a slide informs us that shortly after filming, April Jackson became pregnant again, this time with twins. After this article was published, the Center for Pregnancy Choices responded to an email I had sent earlier. (There was a mix-up about deadlines that was entirely my fault.) Erin Kate Goode, the executive director of CPC said in her email that a client calling CPC is told that the center does not “provide  or refer for abortion.” A client who came in person would receive the same information, she wrote.

If a client is interested in abortion, she said, “We use a Decision Guide that gives her the opportunity to tell us what she already knows about the benefits and risks of each option.” Clients may also be referred to an app called BYD:mobile, developed by a Christian pro-life organization called CareNet, which presents its view of the risks of abortion. A client who chooses abortion must find her own provider. “Most of our patients find us from a friend’s referral or through the internet,” she wrote. “ We believe our patients are capable of finding an abortion provider the same way.”

Clients who express interest in birth control are given a handout entitled “Effectiveness of Family Planning Methods,” prepared by the federal Centers for Disease Control. “While we do not refer for birth control, the patient is given a referral for medical care and informed that the clinic may be able to help her with birth control if that is her choice,” she said.

The Supreme Court case to be argued this week comes from California, and concerns regulation of “crisis pregnancy centers” like CPC. In 2015, state legislators passed the California Reproductive FACT Act. It requires certain facilities offering prenatal services to provide notice to women consulting them. Under the act, “unlicensed facilities” are those that do not have a state clinic license or a medical provider on staff, but offer such services as sonograms, pregnancy testing, or prenatal care. Under the act, they must display (and include in advertisements) a notice telling potential clients that they have no clinic license or medical provider. Licensed medical clinics, which do have providers on staff and offer prenatal or reproductive services, must provide notice that other state-funded programs provide free or low-cost access to “all FDA-approved methods of contraception[,] prenatal care, and abortion for eligible women.” That notice must also provide the phone number of the county social services office.

The National Institute of Family and Life Advocates brought a facial challenge to the act. Their brief argues that the act “forc[es] a pro-life group to advertise for abortion.” The “licensed facility” notice in particular, they argue, contains “pro-abortion messages.” The centers within NIFLA, the petitioner’s brief states, have “the sole mission of encouraging expectant mothers to give their children the opportunity for life … All of their speech is designed to encourage childbirth.” The Act, however, “forces them to point the way to ending unborn babies’ lives.”

The “unlicensed facility” notice, by contrast, makes no mention of abortion; still, they say, it requires the pro-life centers “to begin their conversation with women by saying what they are not and do not claim to be—medical facilities.” In addition, when the “unlicensed facilities” advertise for clients, they must include the notice—and it must be legible in all languages commonly spoken in that county. This, they say, raises the cost of advertising and “drowns out [their] message.”

The clinics based their claim of “viewpoint basis” on the Act’s exemption structure; clinics enrolled in California’s state-funded pregnancy programs don’t have to post the notices. The state says that’s because as a condition of joining the programs, they must already offer birth control and abortion services; the centers argue that the act targets them “because of their pro-life views.” This makes it, they say, a “viewpoint based” regulation of speech—an almost automatic ticket to invalidation under the First Amendment.

To support that idea, their brief quotes a California legislative report on the bill: “unfortunately there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California,” CPC quotes the report, then, after a break continues, “which ‘aim to discourage and prevent women from seeking abortions.’”

In a case about potentially misleading speech, that quote merits a second look.

The full sentence in the report actually says that, “unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers (CPCs) in California whose goal is to interfere with women's ability to be fully informed and exercise their reproductive rights, and that CPCs pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions.”

That’s quite different from the quote NIFLA’s lawyers submitted to the Court. A bill aimed at fully informing the public may or may not be constitutional—but preventing misinformation, or guaranteeing truthful disclosures, is quite different, under the First Amendment, from targeting truthful “discouragement” because of its viewpoint.

The background to this case is the simple fact that states “compel” all kinds of professional, commercial, and medical speech to prevent misinformation. And speech to pregnant women about abortion may be the most regulated single kind of speech in America. Remember Dr. Parker’s required speech quoted above. The state of Mississippi compelled him to bring up the issue of breast-cancer risk even though he believed there is no additional risk arising from abortion.

That kind of “compelled speech” was approved in Planned Parenthood v. Casey. That 1991 case approved the “informed consent” provisions of a Pennsylvania abortion statute. In the Court’s summary, that statute required the doctor to:

Inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion.

The Court called this “informed consent,”  but it’s not ordinary medical-informed consent. In regular use, that means truthful information on the potential medical risks and benefits of a given treatment or procedure. The state-provided materials approved in Casey were instead designed, as the plurality itself said, to further the state’s desire “to persuade the woman to choose childbirth over abortion.”

If that kind of interference with speech to pregnant women is permitted, why can’t a state also ensure that they are given truthful information about a clinic’s licenses, and complete information about their medical options? The NIFLA centers say that “all of their speech is designed to encourage childbirth”; thus even mentioning abortion makes the notice a “pro-abortion message.” But in fact the “licensed facility” notice mentions abortion only as an option—exactly the way the Pennsylvania “consent” provision mentioned adoption. (The “unlicensed facility” notice, of course, doesn’t mention abortion at all.)

In other cases, federal courts have invalidated notices telling clients at the centers that the government “encourage[d]” them to consult licensed medical providers, or whether they provided referrals for abortion. But those courts also approved requirements—like the “unlicensed” one in California’s act—that centers simply disclose whether they had medical personnel on staff. The FACT Act requires a list of services available from state-funded clinics; those services, it says truthfully, include abortion and contraception. Is that “information” or “encouragement”?

States regulate the speech of licensed professionals in many ways—lawyers, for example, must disclose potential conflicts of interests, fee structures, and provisions for collecting court costs. NIFLA says that the “professional speech” doctrine doesn’t apply, because their services are free. In addition, they say, the Casey-style “informed consent” doctrine is irrelevant because their staff are not requesting permission to perform surgery or medical treatment: “Patients talking to their doctors about a particular medical procedure need and expect certain information before they can consent to undergoing that procedure. That is not true for persons receiving information from pro bono advocacy groups that is unrelated to surgeries or any medical services those centers perform.”

I am not sure I follow. Is there a legal difference between requiring information to be given by those who are willing to provide a procedure than by those who aren’t? That’s certainly not true if the unwilling speaker is a lawyer, even one who takes on a client pro bono. That client may have a right to sue for a violation of his or her legal rights. The lawyer, for reasons of personal ethics, may believe that a certain kind of lawsuit is undesirable or even immoral. Can the lawyer just decide not to tell the client about it, waiting until it is too late for the client to sue? That would be an ethical violation. And the ethical obligation to inform the client doesn’t go away just because the lawyer isn’t asking for pay.

Non-lawyers who offer lawyer-style services to the public—will and “living trust” forms, for example, or divorce papers—can certainly be required to tell potential customers they aren’t lawyers.

Beyond the ethical question, is there some kind of special First Amendment rule for abortion, that protects required anti-abortion speech but bans speech about choice? Said that way, it sounds ridiculous. But in a much-discussed passage in Gonzales v. Carhart, the 2007 federal “partial-birth” abortion case, Justice Anthony Kennedy wrote: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”

Can Kennedy convince himself that this state-as-gallant-protector doctrine means that the state can oppose abortion (since women may regret it) but can’t inform women about it (because that might lead to an abortion the woman may later regret)?

Toward the end of Jackson, Shannon Brewer, the director of the abortion clinic, attends her son’s high-school baseball game. In the grandstand, she tells another team mother about recent vandalism at the clinic. “I’m the director of the abortion facility here,” she says.

“I’m a pro-life counselor,” the other mother responds.

The two women look at each other warily—then fall into an astonishing heart-to-heart conversation. The counselor says she tries to tell clients all the choices they have. “I say, ‘Tell me everything you know about abortion.’” She doesn’t say what she tells them after that.

Brewer describes her decision to carry her fifth child to term, and, after seeing him as a newborn, not to put him up for adoption. That baby has grown into the boy batting in front of them as they talk.

“I am pro-choice,” Brewer tells the counselor, “because I don’t feel the need to judge the next person and tell the next person what to do. Because a lot of the adults that we have, including me, grew up lacking not materialistic stuff, [but] stuff from here”—she gestures at her heart—“and then you’re lacking that as an adult and that changes your whole world.”

“You know,” the pro-life counselor responds, “we’re both working for the same goal even though we’re on—”

“Different sides,” says Brewer.

They laugh peacefully, and part as friends.

It would be wonderful to think that there could be such a healing conversation on a societal level as well. But can that conversation ever take place if one side doesn’t have to tell the truth?