Dorinda C. Bordlee and Nikolas T. Nikas

 

 

January 2018

 

There is a seeming contradiction that looms large: what is the principled policy that justifies state governments that compel abortion clinics to provide life-affirming information, but prohibits state governments from compelling pro-life pregnancy centers to promote  abortion? The short answer, as explained in the following amicus brief, is the very purpose of government.  Governments exist to protect innocent human life, not to promote its destruction.  Before discussing this principle and the amicus brief itself further, a bit of context is in order.

 

With the express approval of the U.S. Supreme Court, [1]Twenty-nine states direct their health agencies to develop written informed consent materials that abortion providers must either give or offer to a woman seeking abortion.[2]  Those materials must include medically accurate risks of abortion and childbirth, and typically include photographs and information on the anatomical features of the unborn child.[3]  Failure of an abortion provider to deliver such materials as provided by law may result in civil, criminal or disciplinary penalties.

 

By contrast, California has joined a small but growing number of states seeking to compel pro-life pregnancy centers to distribute information and post signs that refer women to state-funded abortion.  The California law requires any “licensed covered facility” to post and disseminate the following notice:

 

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.  To determine whether you qualify, contact the county social services office at [insert the telephone number].

 

Reproductive FACT Act, CA Assembly Bill No. 775 (2015)(adding Article 2.7 to Chapter 2 of Part 2 of Division 106

of the Health and Safety Code)(emphasis added).

 

The National Institute of Family and Life Advocates (NIFLA), a network that includes more than 1,400 pregnancy help centers nationwide, including 135 in California, filed suit based on the substantial burdens the California Act places on its First Amendment protections to free speech and free exercise of religion.[4]  Following a circuit split caused by an adverse ruling in the U.S. Ninth Circuit Court of Appeals, the case of NIFLA v. Becerra is now pending on the merits before the U.S. Supreme Court, with arguments expected in February 2018 and a decision expected by July.[5] 

           

What follows is the reproduction of an amicus brief filed by lead counsel Bioethics Defense Fund on behalf of the Charlotte Lozier Institute, March for Life Education Fund, and Susan B. Anthony List’s National Pro-life Women’s Caucus.  The amicus brief is offered here as a resource for policymakers on two complementary aspects at the heart of the pro-life movement, namely (1) the vital services of pregnancy help centers to both citizens and public health efforts; and (2) the foundational purpose of government to promote the preservation of innocent human life, not its destruction:

 

• Section I sets forth comprehensive data compiled by Charlotte Lozier Institute’s senior legal fellow Tom Messner documenting how over 2750 pregnancy health center nationwide provide vital, highly valued services to vulnerable mothers and children, with substantial savings to community costs, and often in coordination with public health services.

• Section II addresses how the California Act threatens the existence of pregnancy help centers with a never-before-recognized government interest in promoting the destruction of innocent human life.

 

The legal argument presented in this brief is novel and distinct from the Free Speech argument made by NIFLA and other amici as to why states have an interest in ensuring informed consent for medical procedures.  Rather, this argument goes to the core of the very purpose of government and what the Supreme Court recognizes as a state's “unqualified interest in the preservation of human life,”[6] with simply no corollary state interest in promoting the destruction of innocent human life.

           

In addition to relevant case law, the brief recalls the words of Thomas Jefferson that “[t]he care of human life and happiness and not their destruction, is the first and only legitimate object of good government.”[7]  Whatever interest California might have or desire to have in promoting abortion, that interest is certainly not compelling enough to conscript pro-life pregnancy centers into its project to promote abortion.  The California law turns the government’s proper role on its head and irrationally seeks to devastate the existence and ability of pregnancy help centers to provide services in a manner that respects the life and dignity of both unborn children and their mothers. 

​

PDF: Brief for Amici Curiae Charlotte Lozier Institute, March for Life Education Fund, and National Pro-Life Women's Caucus, filed in NIFLA v. Becerra, U.S. Sup. Ct. No. 16-1140 (Jan. 12, 2018).

           

* Dorinda C. Bordlee (Loyola University New Orleans, J.D., 1990; B.B.A 1987) is co-founder, vice-president and senior counsel, and Nikolas T. Nikas (Arizona State University College of Law, J.D. 1986; University of Notre Dame, M.A., 1981; B.A.,1979) is co-founder, president and general counsel of Bioethics Defense Fund (www.BDFund.org), a public interest organization whose mission is to put law in the service of human life via model legislation, litigation consultation, and engaging live education in professional schools of law and medicine. 

 

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[1] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 883 (1992)(government may “further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when, in so doing, the State expresses a preference for childbirth over abortion”).

 

[2] Of the 29 states that direct the state health agency to develop written materials, 11 require that the materials be given to a woman by the abortion provider, while 18 require that the materials be offered to her. Guttmacher Institute, Counseling and Waiting Periods for Abortion (December 1, 2017), https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.

 

[3] In 2011, Louisiana supplemented its Woman’s Right to Know Law with a requirement that outpatient abortion facilities post signage with key information and a link to a mobile-friendly web resource that shows pregnancy resources, fetal development video clips, and adoption information. LA Act No. 411 (2011), http://www.legis.la.gov/legis/ViewDocument.aspx?d=761700; See Kathryn Jean Lopez, A Digital New Feminist Revolution, National Review Online (Aug. 1, 2011), http://www.nationalreview.com/article/273211/digital-new-feminist-revolution-kathryn-jean-lopez; see also Bioethics Defense Fund, Signs of Hope Legislation, http://bdfund.org/stories/signs-hope-legislation-abortion-alternatives-sign-mobile-website/

 

[4] The Supreme Court limited its review solely to the question of whether California’s mandated disclosures “violate the protections in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment.”  Question Presented in NIFLA v. Becerra, No. 16-1140 (Nov. 13, 2017), https://www.supremecourt.gov/qp/16-01140qp.pdf.

 

[5] The SCOTUSblog case page for NIFLA v. Becerra, No. 16-1140 contains links to all party briefs, amicus briefs, court orders and invited commentary. NIFLA v. Becerra SCOTUSblog Case Page,  http://www.scotusblog.com/case-files/cases/national-institute-family-life-advocates-v-becerra/

 

[6] Washington v. Glucksberg , 521 U.S. 702, 728 (1997)(citing Cruzan v. Director, 497 U.S. 261, 282 (1990)).

 

[7] Thomas Jefferson, Letter to the Republican Citizens of Washington County, Maryland, March 31, 1809, The Writings of Thomas Jefferson, vol. 8 at 165, ed. H.A. Washington (1871).