Brett Kavanaugh’s nomination to the Supreme Court of the United States left many afraid of the danger his confirmation would pose to reproductive rights in America. But the fact is reproductive rights were never safe to begin with.
And the Supreme Court proved just that in June.
The groundbreaking legalization of abortion marked the emergence of crisis pregnancy centers. And if you don’t know what those are, well, that’s kind of the point.
CPCs are nonprofit organizations that look and act like a regular women’s reproductive health clinics. But instead of providing women with comprehensive reproductive health care, they counsel women against having abortions. They’re known to blend in with their communities, and there are at least three near UCLA.
The bias of these centers is evident in the information, or lack thereof, provided by them to patients. A report conducted by NARAL Pro-Choice America in 2015 concluded CPCs exclude or give misleading information to clients about their reproductive health. And with CPCs outnumbering legitimate reproductive care clinics, they pose a danger to not only reproductive freedom, but also to people’s health.
California took steps to address this issue by passing the Freedom, Accountability, Comprehensive Care, and Transparency Act in 2015. It required CPCs to visibly post a notice to patients stating California has subsidized health care that includes reproductive care and abortions. It also required unlicensed facilities to visibly post a notice that they do not have a medical license.
These notices revealed nothing but the facts to prospective patients. But like many laws passed to regulate CPCs, it was challenged in court. And it lost.
The National Institute of Family and Life Advocates filed a case with the Supreme Court, arguing the California Reproductive FACT Act was a violation of First Amendment rights. In a 5-4 ruling, the Supreme Court sided with CPCs and deemed the act unconstitutional.
The subtlety of the decision mirrors the very inconspicuousness of these centers.
But this ruling isn’t an issue of freedom of expression, it’s one of freedom of choice. That is to say, it’s about whether or not women have the right to know all the facts before they make one. And the fact that our political attention has been diverted to comparatively far-off issues like Kavanaugh’s appointment shows that NIFLA, and the Supreme Court, have been successful in concocting a narrative of freedom of expression being sacrificed for regulation, when really women’s reproductive health has only been further compromised.
It’s not unreasonable for people seeking health care services to want to receive full and accurate information about their options. But according to NIFLA, that’s exactly the case: It argued that the law unfairly discriminated against CPCs by only requiring them, and not clinics that perform abortions, to post notices. The group also argued CPCs shouldn’t have to post information about abortions because they morally oppose them in the first place.
But the state has a clear responsibility to provide its citizens with full and accurate information about their health. After all, if it looks and acts like a legitimate reproductive care center, the chances are that women are going to treat it as such. And the government should regulate it accordingly.
The reason the California FACT Act was passed in the first place was to protect women from the deceitful actions that have become the prerogative of CPCs. According to NARAL’s report, CPCs are known to lie to patients about how far along they are in their pregnancies, the risks of getting abortions and so on. Freedom of speech might allow people the right to their opinions, but it surely shouldn’t protect organizations that are lying to patients about their health.
Hypocritically enough, legitimate reproductive health clinics appear to have more regulations than fake ones do.
Justice Stephen Breyer pointed out in dissent of the decision that the government has in many cases required doctors, lawyers, landlords, accountants and others to make disclosures to their clients and patients. Such requirements clearly aren’t unprecedented.
Doctors, for example, are required by state law to inform women seeking abortions about their adoption options. They are also required to inform women of the risks of receiving an abortion, even if they know that information is scientifically inaccurate. It would appear that the government is more than willing to impede on free speech when it comes to compelling women into what decisions they should make about their bodies.
Adam Winkler, a professor of constitutional law at UCLA, said he thinks the California FACT Act was not a First Amendment violation, but was compelled speech.
“You go into business all the time and see compelled notices about employees having to wash their hands,” he said. “They are all perfectly justified for the needs of public safety and to inform consumers.”
Maybe if this hadn’t been about reproductive rights, the decision in NIFLA v. Becerra would’ve turned out differently. But as it stands, NIFLA has been able to twist this into an issue of First Amendment rights where it should’ve been one of reproductive freedom.
CPCs certainly have the right to tout their anti-abortion agenda. The First Amendment guarantees them that much. However, that doesn’t mean they should have the ability to hide their views from patients who may not know the difference between them and clinics that provide abortions.
So yes, NIFLA got its way and five Supreme Court justices can sleep soundly thinking they safeguarded the First Amendment. The inescapable truth is that women in California will have to continue living with their reproductive freedom and health on the line.