Abortion returns to Supreme Court in free speech fight

Richard Wolf | USA TODAY

WASHINGTON – The abortion debate is returning to the Supreme Court, but it's more about the debate than the procedure itself.

A California law requiring pregnancy centers that oppose abortion to post information about state-funded abortion services is the latest in a flurry of high court cases concerning "compelled speech."

In December, the justices heard a Colorado baker argue that he should not be forced to create a wedding cake for a gay couple. Last month, they heard an Illinois state employee contend that he should not have to contribute to his public sector union.

On Tuesday, , the court will hear a challenge brought by the National Institute of Family and Life Advocates, which operates pregnancy centers nationwide, including about 130 in California. The group says California's law forces them to promote a medical procedure they oppose.

"Free speech is at its greatest peril when the government targets speakers because officials disagree with the speakers’ thoughts and ideas," the organization says in court papers, citing its "profound moral and ideological disagreement" with abortion.

While the Supreme Court made abortion legal nationwide in 1973 and has struck down state restrictions that block access for women, it has fervently defended free speech rights in a number of recent cases:

•In 2013, it said the federal government could not deny funds to combat HIV/AIDS to international groups based on their refusal to oppose prostitution.

•In 2014, it said Massachusetts could not enforce 35-foot buffer zones around abortion clinics to keep demonstrators away from patients.

•In 2015, it said a town in Arizona could not limit the size and location of roadside signs based on their content.

•Last year, it said even trademarks considered to be derogatory deserve First Amendment protection.

That makes it likely the justices will not favor California's law, which also requires that unlicensed pregnancy centers clearly state and advertise that they are not medical providers.

"They're putting their thumb on one side of the scale," says John Bursch, a lawyer for Care Net, which supports more than 1,100 pregnancy centers nationwide. “The justices all recognize that the government cannot compel you to speak its message."

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California, backed by abortion rights groups, claims such centers deceive and misinform clients by posing as medical clinics and running ads intended to attract women in search of traditional abortion and contraception services. The state says more than half of its 700,000 pregnancies each year are unintended, and women need to know their options.

"Some centers that have no medical professionals and offer no medical services nevertheless outwardly resemble medical institutions — for instance, by using lab coats, forms, and office spaces resembling those at medical clinics, and by providing services such as ultrasounds and pregnancy testing," the state argues in court papers.

Cities such as New York, San Francisco and Baltimore were first to enact laws imposing requirements on pregnancy centers. The facilities fought back in court — successfully in most cases — by arguing that the cities were discriminating based on their viewpoints.

Mark Rienzi, a law professor at The Catholic University of America, says California can inform its residents about abortion services without requiring that groups opposed to abortion do so. The law's motive, he says, is to hinder the work of the centers opposed to abortion.

But a coalition of municipal groups argues that a ruling against California could put other required postings on shaky legal ground, such as those providing first aid instructions or requiring workers to wash their hands.

And both sides in the debate might want to be careful what they wish for. State restrictions on abortion, such as requiring ultrasounds and informing women about the growth of the fetus, could be at risk if California loses. If the state wins, however, those restrictions could be on safer ground.