Photo Credit: Courtesy of Jeffrey Bruno, ALETEIA
By Rachel Kokenes, Staff Member (Vol. 16)
The Current Political Climate as Backdrop
As President Donald Trump looked (via satellite) into the crowd of anti-abortion activists gathered for the 2018 March for Life, he used a word that most monitoring the national debate surrounding abortion would find controversial—“love.” “‘The March for Life. . . is a movement born out of love. You love your families, you love your neighbors, you love our nation and you love every child—born and unborn—because you believe every life is sacred, that every child is a precious gift from God.’” This take on the anti-abortion movement, while undoubtedly applauded by those who believe it, is somewhat unique for a sitting president. In fact, although other presidents may have been pro-life, President Trump is the first to show his face at the march (Presidents Reagan and W. Bush each made telephonic remarks), a cornerstone event for the pro-life movement that has existed for forty-five years.
In response to POTUS’s speech, Planned Parenthood issued a statement accusing the Trump administration of being “laser-focused on using their power to control women’s bodies.” In fact, President Trump did not simply praise the anti-abortion movement itself, he also heavily criticized the seminal Roe v. Wade decision and the “permissive abortion laws” that it enabled. He has been on record stating that he hopes precedent will be overturned. Coming from the man singularly responsible for filling any vacancies that may arise on the Supreme Court, this statement should not be taken lightly.
Wading even further into the judicial branch than the appointment of judges, the Trump administration unsuccessfully attempted to coerce the D.C. Circuit into denying an undocumented teenager an abortion while in custody.
President Trump’s obvious stance on influencing both the judiciary and abortion policy casts an ominous shadow on the Supreme Court’s upcoming ruling regarding the National Institute of Family and Life Advocates v. Becerra—assessing the validity of a California statute that aims to bolster knowledge for pregnant women regarding access to services.
California’s Efforts to Foster a Right to Choose
In spite of our President’s newly found disdain for the right to choose ( in 1999, then-merely billionaire Donald Trump went on record as being “very pro-choice”) Roe has been good law since it was announced in 1973. Casey and other decisions may have weakened the essential holding, making abortions increasingly difficult to obtain in certain parts of the country, yet a legal right to terminate a pregnancy in its early stages has remained intact. Several generations of young women have entered into sexual maturity knowing that their government protected, at least at the most conceptual level, their right to family planning.
In this vein, California, consistently blue and unabashedly pro-choice, enacted a law in 2015 that requires all medical providers to inform any pregnant patient that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services. . . prenatal care, and abortion for eligible women.” Known as the Reproductive FACT Act, the above-mentioned script is accompanied by stringent notice requirements, which pointedly include both printed and oral notice to patients. These disclaimers are meant to ensure that the choice for a woman is meaningful. Significantly, nothing about the language preferences choosing an abortion over prenatal care; it simply provides a full menu of equal options.
Free Speech Concerns as a Trojan Horse for Pro-Life Agendas
Just as all of our laws should, this California statute applies with equal force to everyone, including those medical providers with opposition to the procedure. Those facilities that refuse to comply with the statute incur fines, and enough fines could become prohibitive to operations.
In its petition for a writ of certiorari, the legal team for the National Institute of Family and Life Advocates had little difficulty framing the issue as crucial to the preservation of the First Amendment: “Government compelled speech is a constitutionally suspect enterprise, especially when it occurs in non-commercial contexts, based on viewpoint-discriminatory purposes that interfere with discussions of controversial social issues, such as abortion.”
This phrasing, though effective, is hugely deceptive. Nothing about the language of the statute is truly “viewpoint-discriminatory.” It presents each option for pregnant women with equal weight. In fact, the language of the required notice is weighted against abortion, couching it as only a possibility while the other options are more certain—“abortion for eligible women,” not for everyone.
Furthermore, as the amicus brief filed by Planned Parenthood rightly points out, this script should be classified as professional speech; a class of speech that has long been treated specially. Professional speech, the brief continues, is characterized by a knowledge differential between the professional and the general lay person. The government should, therefore, ensure that professional speech is regulated. We would never balk at forcing a drug manufacturer to print a Surgeon General’s warning on potentially fatal narcotics. We should not balk at this.
Forecasting the SCOTUS Outcome
As is always the case with these issues, what society should do and what may happen are two very different things. The Court currently enjoys a fairly defined split on abortion issues—Kagan, Sotomayor, Ginsburg, and Breyer are pro-choice, while Thomas, Roberts, Alito, and Gorsuch are pro-life—leaving Justice Kennedy as the swing vote. This is a familiar position for the Reagan appointee, and yet no one can predict what he will do.
Even so, it will likely fall on an 81-year-old white man to decide if exaggerated free speech concerns on the part of conservative professionals can mask a real deprivation of liberty for the American woman. No matter what happens, the optics are troubling. As the world watches its once great superpower systematically scale back the rights of women, immigrants, and the LGBTQ community, at the hands of a known misogynist, it may also get to watch as another person with no uterus weakens a decades-old fundamental right. Margaret Sanger is rolling in her grave.
First Amendment Law Review 