Editorials

Supreme Court’s anti-abortion ruling in California upholds the right to misinform

Anti-abortion and abortion-rights activists demonstrate outside the U.S. Supreme Court in Washington, June 22, 2018. (Erin Schaff/The New York Times)
Anti-abortion and abortion-rights activists demonstrate outside the U.S. Supreme Court in Washington, June 22, 2018. (Erin Schaff/The New York Times)

There’s a reason California lawmakers in 2015 required “crisis pregnancy” centers to disclose if they’re unlicensed, and to post signs telling patients the state provides free or cheap “prenatal care and abortion for eligible women.” It’s the same reason the centers exist at all.

Abortion. Federal law allows it, California protects the right to it and the centers – which are typically faith-based, unlicensed and offer no actual medical services – exist to talk pregnant women out of it, even if that sometimes means confusing them with misinformation.

States do have a right to shield consumers against deceptive advertising. But the court bent over backwards to ensure California didn’t infringe, even for good reason, on the speech of the 200 or so crisis pregnancy centers scattered around California.

On Tuesday, in a 5-4 decision cheered by abortion opponents, the U.S. Supreme Court’s conservative majority performed a hat trick: It put a damper on California’s right to protect the health of its residents, further eroded the already endangered right to choose when and whether to have children and upheld the right to misinform.

Of course the court didn’t put their decision quite that way. Rather, the justices cited the need to protect the First Amendment rights of the anti-abortion centers in determining that California’s FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act violates the Constitution. The National Institute of Family and Life Advocates, the Virginia-based organization that sued California, had argued that even posting a factual sign contradicting their pitch violated the First Amendment by compelling religious groups to act as billboards for a government message they found abhorrent.

The court could just as easily have found against the center. States do have a right to shield consumers against deceptive advertising. But the court bent over backwards to ensure California didn’t infringe, even for good reason, on the speech of the 200 or so crisis pregnancy centers scattered around the state. In a way, the NIFLA v. Becerra decision echoed the now infamous Citizens United case, which was similarly solicitous of the free speech rights of giant corporations to pump mass quantities of money into political campaigns.

The ruling, which reversed a Ninth Circuit Court of Appeals decision upholding the FACT Act, will prevent the state from forcing these storefront ministries, which is what they are, really, to let women know that there are places they can go to get less biased information.

And though that’s bad news for vulnerable pregnant women who deserve better than to be browbeaten and proselytized in the midst of a profoundly private decision, there is one silver lining: The ruling may also open the door to challenges in conservative states where lawmakers have required abortion providers to “counsel” patients with anti-abortion falsehoods.

In more than a dozen states, doctors and licensed clinics are forced to tell women that abortion might damage their mental health, for example, or that it is linked to suicide or breast cancer – pro-life claims that are pure propaganda.

Some of these states insist that this discredited counseling be delivered in person; some force doctors to perform ultrasounds while they’re spouting this pseudoscience.

Women terminate pregnancies legally every day and life goes on, with the only consequence being that they are no longer pregnant. We may have mixed emotions about abortion as a concept, and religious doctrines may differ on it, but practically speaking, that’s fact.

California might want to work harder to get that message out there, and find another way to counter abortion disinformation. Meanwhile, state lawmakers can comfort themselves with the knowledge that, in picking this fight, they may eventually do the rest of the country a favor.

If this blue state can’t force ideologues to deliver the whole truth on abortion, perhaps the next high court challenge will ensure that red states can’t force doctors and clinics to lie about it.

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