The Dangerous Supreme Court Case Nobody Is Talking About

NIFLA v. Becerra has huge implications for free speech, religious freedom, and the pro-life cause

For the second time this term, the Supreme Court is considering whether the government can compel Americans to express or support ideas they find repugnant. The first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was the talk of the nation. This case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, has almost entirely escaped public attention. That’s a mistake. If anything, the violation of the First Amendment in the NIFLA case is more egregious, and the implications potentially more far-reaching.

The NIFLA case is unquestionably about compelled speech. The state of California has enacted a law, the so-called FACT Act, that requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions.

 California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so.

And the Ninth Circuit Court of Appeals held that the FACT Act is constitutional. To validate California’s oppressive act, its decision carved out a dangerous First Amendment exception for what it deemed “professional speech” — “speech that occurs between professionals and their clients in the context of their professional relationship” — and ruled that the state had much greater leeway in regulating, for example, doctor/patient communication.

There are circumstances where such regulation is appropriate. Doctors typically must explain the risks of medical procedures, for example, and a patient must give “informed consent” before being subjected to any course of treatment. But there is a vast, yawning gulf between “informed consent” and a requirement that a pro-life professionals advertise the very procedure they’re trying to persuade people to avoid.

There’s nothing uniquely “professional” about the state’s mandated advertisement. It’s simply the state’s speech forced into a private professional setting.

 If the Ninth Circuit’s reasoning holds, professionals who’ve dedicated their lives to particular religious, cultural, or political causes could see their offices commandeered by the state for alternative expression, their messages undermined by state-mandated “disclosures.”

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