Ruling against Truth: NIFLA v. Becerra

On Tuesday, June 26, the Supreme Court ruled against women, against evidence- and science-based healthcare, and against truth. In a highly contested 5-4 vote, the justices decided in favor of the National Institute of Family and Life Advocates (NIFLA). The court said that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “FACT” Act) violated the First Amendment, and that NIFLA’s free speech and free exercise rights were infringed upon with this act. The FACT Act required all state-licensed clinics to provide information about a range of family planning services, including the telephone numbers of abortion providers, and to do so in thirteen languages, while requiring unlicensed clinics, including those sponsored by NIFLA, to provide the same abortion services information and declare that they were unlicensed and not true medical providers. Justice Clarence Thomas, writing on behalf of the majority, decided that the notices are a “content-based regulation of speech” and that requiring clinics that oppose abortion to give information about the procedure “alters the content” of these clinics’ speech enough to violate the First Amendment.

The clinics supported by NIFLA are commonly called crisis pregnancy centers and are almost always run by “pro-life” religious groups. These centers routinely target low-income women, shaming, pressuring, and misleading them into carrying their fetuses to full term. CPCs pretend to offer the “full range” of family planning services and appear to be an attractive alternative to state-sponsored family planning services for women who are unexpectedly pregnant but are maybe unsure about getting an abortion. However, what crisis pregnancy centers don’t tell the women they claim to serve is that they’re often not licensed and not staffed by real, credentialed medical doctors. Furthermore, as part of their “religious mission” against abortion, these CPCs often spread lies that abortion causes breast cancer or that women who have abortions will never be able to conceive again. They play with vulnerable women’s emotions by showing them ultrasounds of their fetuses, asking if they want to hear the fetus’s heartbeat, telling them the sex of the fetus when the women have not asked for it, and going so far as to flat-out lie to their clients about how far along they are in their pregnancies, falsely pushing the date back so that when women go back to these CPCs or a true medical doctor for follow-up appointments, they’re too far along to legally get an abortion. No wonder California enacted the FACT Act.

Ironically, the CPCs won their argument on free speech grounds. California argued that it could require medical centers to provide abortion information as a form of “professional speech,” a category that allows states to require doctors and medical professionals to disclose other ethical and legal information. However, Justices Thomas and Kennedy disagreed. They thought the state was unfairly targeting these fake clinics “on the basis of their religious beliefs.” But it seems to me as though the religious beliefs of CPC donors and staff interfere with the state’s ability to safeguard public health.

To best protect public health, the state has a duty to make sure its constituents are as informed as possible. This includes providing information that may make certain religious adherents uncomfortable. But the state can do that because the First Amendment also states that “Congress shall make no law respecting the establishment of religion.” However, by ruling that CPCs can take religiously motivated actions and not disclose certain essential health facts because it would violate their freedom of expression according to their religious beliefs, it seems like the Supreme Court is giving Congress free rein to “respect the establishment of religion.” In his concurring opinion, Kennedy wrote that the FACT Act “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” But by being allowed to operate and use their religious beliefs to restrict women’s access to information, the government is instead letting NIFLA “impose its own message in the place of individual speech, thought, and expression.”

Although this case was framed as a free speech case, it’s also an Establishment Clause case, and therefore a humanist case. By letting so-called “medical professionals” use their religious beliefs to obstruct the advancement of public health, the Supreme Court has knocked down quite a few bricks of the now-shaky wall between church and state. Regardless of your feelings about abortion, we humanists have a responsibility to ensure that people’s personal religious beliefs do not affect the proper functioning of the state. Therefore we must fight back against these CPCs and make sure religious advocacy doesn’t prevent women from getting the information they need to make the best decisions possible for their bodies and their lives.