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15 March 2018
Jeopardizing Care for Mothers: The Legal Assualt on the Free Speech Rights of Pregnancy Care Centers
In my practice as an attorney, I have been honored to assist in representing Pregnancy Care Centers and pro-life medical professionals in litigation on legislation regarding the free speech rights of such Centers at the Fourth Circuit Court of Appeals, in federal court in Illinois, and at the Supreme Court in the upcoming case NIFLA v. Becerra.
There are currently more than 2,300 Pregnancy Care Centers across America that provide vital care to mothers and their children. These Centers offer women pregnancy testing, ultrasounds, peer counseling, and access to physical resources that allow them to better care for both themselves and their children. These services have been estimated to save our communities upwards of $100 million a year. One would think that the amazing men and women that run Pregnancy Care Centers would be universally praised for their hard work supporting women, not attacked for political reasons. Yet, across the nation, we are seeing legislation being introduced specifically to target the free speech rights of Pregnancy Care Centers.
Fortunately, the courts, in general, have not looked favorably on these attempts to silence Pregnancy Care Centers, and I have confidence that the Supreme Court will once again step in to protect the free speech rights of pro-life advocates in the upcoming case NIFLA v Beccera. My colleges at Americans United for Life and I, are not alone in finding the attacks on the free-speech rights of Pregnancy Care Centers alarming and unconstitutional- 22 states, 144 members of Congress, and numerous other organizations have also filed friend of the court briefs defending the amazing men and women running these Centers.
The courts have already invalidated, or mostly invalidated similar governmental attempts to interfere with the free speech of Pregnancy Care Centers in Montgomery County, Maryland; Baltimore, Maryland; Austin, Texas; and New York City. This is unsurprising when one considers that the right to Free Speech is one the foundational rights in our Constitution. Unlike the so-called “right to abortion,” our Free Speech comes not from supposed “penumbras or emanations” but is spelled out in plain English in the very First Amendment to our Constitution.
One of the courts that has struck down these attempts is the Second Circuit Court of Appeals. In Evergreen Association v. the City of New York, the Second Circuit considered three separate attempts by the City of New York to regulate the free speech of Pregnancy Centers: one requiring that Centers post a disclosure stating whether or not there was a licensed medical professional on staff, another requiring that each Center post a disclosure detailing whether or not they provided or referred for services such as abortion, and finally, requiring Centers to post a government-sponsored message (very similar to the issue before the Court in NIFLA) informing women that the city encouraged pregnant women to seek care from a licensed medical professional. In striking down both of the latter two requirements, the Second Circuit Justices noted,
The Supreme Court’s prior precedent on free speech rights should lead them to uphold that very same principle in the NIFLA case. In Wooley v. Maynard, the Supreme Court explained that the “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’’’ Therefore, legislation such as California’s, which requires Pregnancy Care Centers to begin their relationship with women with a forced negative message undermining their ability to offer counsel and care to women facing unplanned pregnancies, would clearly violate the very ‘freedom of mind’ the Court seeks to protect. The Court also made their position on government interference with freedom of speech clear in Ashcroft v. ACLU, where they wrote:
In deciding whether or not the government can interfere with the free speech rights of Pregnancy Care Centers, it would be hoped that the Supreme Court would echo their recent strong defenses of the right to free speech, such as their unanimous rulings in McCullen v. Coakley (upholding the free speech rights of pro-life sidewalk counselors), and Matal v. Tam (rejecting the government’s arguments that trademarks can be denied if they are deemed “disparaging” by the U.S. Patent and Trademark Office). At the end of the day, a loss would certainly burden the future of every American who values their right to free speech, but the truest cost would be borne by the women of our country who cannot afford to lose the support, care, and options that Pregnancy Cares Centers represent.
Deanna Wallace, J.D. is Staff Counsel for Americans United for Life, and Editor of AUL's publication 'Defending Life.'
[H]ere the context is a public debate over the morality and efficacy of contraception, for which many of the facilities regulated by [New York City law] provide alternatives. [E]xpression on public issues has always rested on the highest rung of the hierarchy of First Amendment values." As a result, the Second Circuit held that Pregnancy Care “Centers must be free to formulate their own address.”
[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” As a result, the Court held that the Constitution, “demands that content-based restrictions on speech be presumed invalid . . . and that the Government bears the burden of showing their constitutionality.”