- The Washington Times - Tuesday, March 20, 2018

Legal experts say U.S. Supreme Court Justice Anthony Kennedy’s skepticism is a good sign for pro-life pregnancy centers challenging a California law that forces them to promote taxpayer-funded abortions.

During oral arguments Tuesday, Justice Kennedy, who is frequently the court’s swing vote, suggested the law might encroach on free speech.

“It seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute,” Justice Kennedy said.

Catherine Glenn Foster, president of Americans United for Life (AUL), which filed an amicus brief on behalf of the pregnancy centers, said she came away from oral arguments with the impression that the “majority of the justices” will vote to strike down the law.

“They appeared to agree with AUL’s friend of the court brief that what the state did was not appropriate regulation of medicine, but coerced speech in violation of the First Amendment,” Ms. Foster said in a statement.

Passed in 2015, California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (FACT) requires pregnancy centers in the state to make certain disclosures under threat of massive penalties.

Unlicensed crisis pregnancy centers, which typically are pro-life clinics that provide free baby products, counseling and adoption services, are required under the law to inform patients that they do not provide medical services.

The notice must read: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

Licensed pregnancy centers, which often provide limited medical services such as ultrasounds, must post notices telling women how to obtain taxpayer-subsidized abortions, even if the clinics are pro-life.

The notice must read: “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.”

The National Institute of Family and Life Advocates, a national network of licensed and nonlicensed nonprofit pregnancy centers, filed a lawsuit arguing the law violates the First Amendment.

The U.S. Court of Appeals for the 9th Circuit upheld the law in a 2016 ruling. Federal courts in New York, Baltimore and Montgomery County, Maryland, have struck down similar laws in the past.

Illinois and Hawaii also have laws requiring pro-life pregnancy centers to refer patients for abortions.

Justice Kennedy’s remark came during an exchange with attorney Michael Farris, who represents the pregnancy centers. The justice posed a hypothetical question: “What would happen if an unlicensed entity, an unlicensed center, just had a billboard that said ‘Choose Life’? Would they have to make the disclosure?”

Later, Justice Samuel Alito renewed the line of questioning with California Deputy Solicitor General Joshua Klein.

“So you have a facility that offers pregnancy testing, and they advertise that they offer pregnancy testing,” Justice Alito said. “And they put up a sign, an ad that says ‘Choose Life.’ They have to put in the disclaimer?”

“If it — yes, in that circumstance, they may be required to do that,” Mr. Klein said. Mr. Klein pointed out that the 29-word disclaimer would have to appear in the same size font as “Choose Life.” The disclaimer also would have to appear in a several foreign languages, the number of which would vary from county to county.

Justice Alito pressed Mr. Klein on how many languages the disclaimer would have to be translated into.

“Well, what is the situation for Los Angeles County?” Justice Alito said. “This is California law. You should know the answer. Somebody is going to put up an ad. A covered unlicensed facility posts an ad in Los Angeles County. In how many languages must they print the disclosure — the disclaimer?”

“It would be 13,” Mr. Klein responded.

Even the liberal members of the court appeared to object to the idea of translating a 29-word disclaimer into 13 languages for a two-word advertisement.

“I mean, it is one thing just to say, ‘We are not a licensed medical provider,’” Justice Ruth Bader Ginsburg said. “But if you have to say that, those two sentences in 13 different languages, it can be very burdensome.”

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