What You Need to Know About NIFLA v Baccera

By Shanon Snyder

Crisis Pregnancy Center’s are the material answer to the question, “Will you take care of babies and mothers after they are  born?” The answer from the pro-life movement has been a resounding yes. While official numbers are difficult to surmise since most CPCs are independently owned and operated, nationally, CPC’s match abortion facilities 1:1 or 1,800 CPCs (Politifact) to 1,700 abortion facilities (Guttmacher Institute).

Now, pro-abortion organizations are taking notice of the disparity. CPCs present options to encourage a mother to choose life, including diapers, clothes, food, job training and medical assistance among other vital services. If a woman chooses to carry to term, then she won’t choose an abortion. That much is obvious. However, that choice hurts the abortion industry’s income. In recent months, National Abortion Rights Action League, Planned Parenthood and others have lobbied state legislators to attack these centers with burdensome, intrusive laws. The Supreme Court will decide if these laws are constitutional on March 21.

In the meantime, here are 3 things you need to know about National Institute of Family and Life Advocates v. Baccera:

Abortion Lobbies are on the Attack

NARAL has pushed for the regulation of Crisis Pregnancy Centers using terms like “fake clinic” to present CPCs as deceptive and dangerous. Nothing could be further from the truth. In a report published by NARAL, “The Truth about Crisis Pregnancy Centers,” the organization accuses CPCs of false advertising, coercion and other manipulative tactics. The ultimate goal of the CPC, according to NARAL, is not to help women make an informed choice, but “…their goal is to dissuade women from exercising their right to choose.” According to NARAL, the worst thing a CPC does is try to persuade a woman from choosing an abortion. For the CPC, there is no profit motive, no otherwise religious or political investment and often a financial loss in some cases. The abortion lobby’s central contention is that CPCs attempts to prevent an abortion from occurring. Of course, this is a problem for abortion providers who, in fact, do have a profit motive invested in a woman’s so-called “right to choose.” Fortunately, the abortion lobby’s legal maneuverings in the last decade have proven unsuccessful.

State and Local CPC Regulations Make Operation Impossible

In 2015, the state of California passed the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act, which forces a “licensed covered facility” to declare whether it offers abortion or contraceptive service. The law would also require “truth in advertising” by forcing pregnancy centers to place a 8.5×11 poster in 48-point font to declare that it does not provide abortions or contraceptive services.

Secondly, the law would require that the pregnancy center issue notices on paperwork and advertising stating that the California Medicaid program Med-Cal covers abortion and contraceptive services, that the facility does not provide the respective services and that the facility does not have a licensed medical professional onsite. The law also requires the facility to put this notice in the “threshold languages” or primary languages recognized in California. There are 13 such “threshold languages” recognized by the state. This language provision places an absurd burden on CPCs since the law would require all advertising, notices, paperwork and literature to prominently display such a notice in the threshold languages. Essentially, the provisions would make advertising and literature so burdensome that CPCs could not function in their mission in providing abortion alternatives. If the clear pro-abortion motive is not so far evident to the reader, no such provisions would apply to abortion facilities.

How will the Supreme Court Rule?

While the Supreme Court has a checkered history on the limits of state and federal power, the high court has historically favored individual Free Speech cases. The most relevant case in recent memory is the 1988 ruling of Myer v. Grant. In that case, Coloradans for Free Enterprise challenged a Colorado law that banned paid petitioners from circulating petition signatures. The Appellate Court and Supreme Court found the law to be in violation of the 1st Amendment on the grounds that state governments “…may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.” Essentially, National Institute of Family and Life Advocates v. Baccera presents a similar problem. In a similar case to the contested California law, the Fourth Circuit Court of Appeals struck down a similar Baltimore city ordinance on the grounds that: “After seven years of litigation and a 1,295-page record before us, the City does not identify a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there,” the judge wrote. “To be sure, states must have room for reasonable regulation. But there is a limit to how much they can dictate core beliefs.”

To what extent does California have an interest in compelling speech in support of abortion and contraception on care facilities whose purpose is exactly in opposition to these actions? Other such cases indicate that the state has limited potential in compelling charities and individuals in advertising for positions and services which they find objectionable on the ground that the state cannot use force to quell debate between a speaker and listener.

In conclusion, the state of California and other municipalities may act to shut down CPCs through burdensome regulations designed to undermine the pro-life mission and pro-life speech of those facilities but such laws are unconstitutional. In the future, as abortion centers experience decline and reduced profits, abortion lobbyists will continue to attack CPCs for their effective pro-life service and strong competition. Often, CPCs offer more services, greater care and more extensive support for mothers than abortion facilities and other pro-choice facilities. The abortion industry’s days are numbered and they will grow more desperate as the pro-life generation marches forward.