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America's latest battle over abortion turns out to have been something entirely different

Editorial Staff

After Carlill v The Carbolic Smoke Ball Company (in 1892), possibly the most famous court case in the world is Roe -v- Wade (1973) which has been a constant battleground in the US, the Senate and the Courts for decades. The latest Supreme Court case does not directly affect that case but might have even greater consequences because while everyone is focussing on the abortion element of National Institute of Family and Life Advocates v. Becerra, the case was actually about something very different and that's how the US Supreme Court decided it.

California has long been at the forefront of liberal sexual attitudes and a liberal approach to the consequences of those sexual attitudes. Amongst is measures is The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (another one of those American laws for which a long title is manipulated to give a snappy, media-friendly acronym - in this case "The FACT Act." The trouble with that title is that it doesn't mention one of the most important parts of it: that relating to abortion.

The Supreme Court is more or less evenly divided on matters related to abortion, although that simple statement hides some blurry lines. Four of the SC Justices, John G. Roberts Jr., Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch are, some more than others, anti-abortion in all but extreme circumstances. Of the remaining five, four are generally in favour of a less restrictive regime. The swing vote is Anthony M. Kennedy who has a record that his critics say lacks direction but one might equally argue says that he provides genuine justice as the case demands. It's Kennedy that is exercising the abortionists for it is he that has resigned.

The challenge that found its way into the Supreme Court and had a judgment published this week is to a material part of The FACT Act and it arises because the law requires all state licensed healthcare operators and non-licensed providers (such as counsellors) make available a notice that contains the following words: "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]."

Anti-abortionists claimed that their right to free speech was impaired. Abortionists, supported by major media, argued "The California statute was enacted so that women would receive accurate information about the existence of state healthcare programs. It mandates only that the notice be made available to patients. The words can be printed out and handed to patients or clients, or the notice can be posted on a wall. No one is required to say anything. Nor is there any requirement to provide additional information; for instance, specifics about contraception or a referral to a clinic that performs abortions." (2)

Abortionists and free-speech advocates joined forces. "According to Ingrid Duran, state legislation director for National Right to Life, the nation’s oldest and largest pro-life organisation, “There is no provision in the California so-called Fact Act that would require abortion facilities to inform women about the resources available from pregnancy resource centres.” She adds, “It is not surprising that (the) pro-abortion lobby would threaten pregnancy resource centres that offer life-affirming alternatives, since this is in contradiction to their mission of the unfettered right to abort innocent unborn children.”" (3)

So what, exactly, did the Supreme Court decide in National Institute of Family and Life Advocates v. Becerra?

By five to four, it found that the FACT Act is, within boundaries, unconstitutional but it's not as clear cut as it first appears.

For example, in a dissenting judgment, Breyer, J, found that, on its face, the statute was no unconstitutional for the simple reason that the First Amendment prohibits restrictions on speech but makes no mention of requiring a person to make a statement by speaking it or publishing it. But he muddies the waters by saying "The disclosure includes information about resources available should a woman seek to continue her pregnancy or terminate it, and it expresses no official preference for one choice over the other. " That, it is argued here, undermines his point because it allows for the possibility that the notice would subject to challenge if it did express an "official preference" while his core principle is that ordering the publication of information is not a fetter on free speech. To qualify it, reduces the strength of his argument.

Kennedy, J wrote a short judgment concurring with the majority in which he said "This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern." That sounds like another American making up expressions so what is "viewpoint discrimination"? It appears to be simply this: that the Act requires the publishing and distribution of one viewpoint. If the notice were to say something like "Services presenting alternatives to abortion are also available" and providing contact information, it appears that the discriminatory aspect of the requirement would be addressed.

This law 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. For here the State requires primarily pro-life pregnancy centres to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these...Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

- Justice Kennedy, Supreme Court of the United States, NIFLA v. Becerra, June 2018

The full judgment makes fascinating reading. Picking through the legalese, there is common sense of a kind that has all too often been lost.

In summary, what the decision of the Supreme Court says is that the District Court, which is in California, is bound to find in favour of the Plaintiffs and against California and the case is remitted for that decision to be made. The fundamental reason for the decision is that the anti-abortionists have co-opted the term "pro-choice" when The FACT Act, in the specific and narrow regard before the court, actively militates against choice. The Court did not find that abortion should be de-restricted nor restricted. It said, simply, that it is not an acceptable function for a State to require those who do not agree with it to nevertheless promote the views that the State promotes.

However, the case has the potential to reach well beyond its narrow point of reference.