SCOTUS to Consider Law Forcing Pro-Life Centers to Become 'Abortion Referral Agencies'

A pro-life lawyer defending pregnancy resource centers (PRCs) announced that his law firm is appealing its First Amendment lawsuit to the United States Supreme Court. According to him, a certain California law would require pro-life pregnancy centers to endorse abortion clinics, thus violating their rights to free speech and religious freedom.

“In essence, the law mandates that pro-life centers become abortion referral agencies, totally against their convictions, against their foundational beliefs, compelling speech,” Tom Glessner, president and CEO of the National Institute of Family and Life Advocates (NIFLA), told PJ Media in an interview at the Conservative Political Action Conference (CPAC).

California’s Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act mandates that any facility which provides ultrasounds or prenatal care to pregnant women, or that provides counseling about contraception, or offers pregnancy testing, is required to post the following notice (emphasis added):

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].

The bill, which became law in October 2015, stipulates that facilities which do not post such a notice within 30 days will be fined $500 for a first offense and $1,000 for each subsequent offense.

Most PRCs defended by NIFLA fall under this law, since they provide confirmation of pregnancy through ultrasound services, along with sexually transmitted infections (STIs). “Some of them are providing STI testing and treatment services, they all provide counseling, material resources, cribs, baby clothes, maternity clothes, accessories, referrals for adoption, referrals for legal help, referrals for housing,” Glessner said.

NIFLA and Alliance Defending Freedom (ADF) filed suit against the law, claiming that it violates the free speech and religious freedom rights of pregnancy resource centers. “A government that tells you what you can’t say is dangerous, but a government that tells you what you must say — under threat of severe punishment — is terrifying,” ADF Legal Counsel Matt Bowman said in a statement.

Glessner, the NIFLA president, attacked the law as violating both free speech and religious freedom. He argued that the United States Supreme Court has always held compelled speech to be a violation of the First Amendment. “The government cannot compel you or me or a church to present a message that it wants you to present and you disagree with,” Glessner told PJ Media. “It just can’t do that. That is an absolute violation of your First Amendment rights.”

But the pregnancy resource centers Glessner represents “are all faith-based clinics,” which means that compelling them to advertise for abortion clinics is a “violation of First Amendment freedom of religion as well.” The NIFLA president added that the pregnancy centers are “basically staffed by volunteers,” and while they have a few paid staff, those workers receive “salaries that are far under what they could earn in the free market.”

“They’re not in it for the money, so what are they in it for? Because they have a deeply-held faith in the sanctity of life, and they want to help,” Glessner explained. “They believe in the sanctity of life of that child, and in the sanctity of life of that mother — they want to help her in this crisis and save the life of the baby in doing so.”

Glessner argued that requiring pro-life centers to effectively advertise for abortion clinics — even including a phone number to get the process started — is compelled speech and a violation of religious freedom at the highest level.

NIFLA, founded in 1993, provides pregnancy resource centers with legal counsel, education, and training, “to enable them to avoid legal pitfalls in their operations,” the organization’s website explains. It represents over 1,350 member PRCs across the country. Glessner said 1,100 of the centers are fully medical, and that the organization represents about 125 of them in California.

In 2016, NIFLA filed suit, moving for a preliminary injunction, which would just prevent the state from enforcing the law while legal threats are pending. In October of last year, the 9th Circuit Court of Appeals struck down the request for an injunction. Glessner told PJ Media the organization intends to take the case to the U.S. Supreme Court. If the Court takes the case, “we’ll have an argument in the Fall, probably in October,” he said.

The NIFLA president explained that PRCs which are also medical clinics (the organization represents about 80 in California) can provide ultrasound services. “When the mother sees that child on the screen, choices for life dramatically increase,” Glessner said. “Without the ultrasound, 20 percent will choose life. With the ultrasound when women see the baby in them, 80 percent will choose life.”

In addition to this concrete pro-life impact, the PRCs also save taxpayers money. According to the report “A Passion to Serve: How Pregnancy Resource Centers Empower Women, Help Families and Strengthen Communities,” 1,969 PRCs saved taxpayers an estimated $100,888,000 in 2010. Glessner, whose organization helped commission the study, explained that the study put a very low cost on the services given out for free — “services to these women that the government didn’t have to fund.” In other words, the $100 million is likely an underestimate.

So the California law is not only removing free speech and freedom of religion from PRCs, but it is also harming organizations which save taxpayers  a huge amount of money.

Worse, a similar law is under consideration in Hawaii. On Thursday, the Hawaii state Senate Committee on Ways and Means (WAM) recommended that SB-501 be passed, unamended. Some outlets have branded PRCs as “fake clinics,” and argued that this bill would force them to “stop breaking privacy laws.”

While the Hawaii law is very similar to the California one, SB-501 would cause even more trouble than California’s FACT Act. “One of our medical centers in Hawaii is not separately incorporated — they’re a branch of a local church,” Glessner explained. “So, now this law applies to the local church. If the government’s allowed to do this, it goes well beyond the work of pregnancy centers.”

The NIFLA president explained this dangerous precedent: “If you disagree with government policy, we’re going to make you agree, and if you don’t agree we’re going to fine you and close you down. That’s tyranny.”

California’s FACT Act sets a dangerous precedent, and the Supreme Court should take up this case and strike it down, Glessner argued. If it does not, free speech and religious freedom will be in terrible jeopardy, and not just in Hawaii and California, but across the country.