Inside a Supreme Court Case on Abortion That May Redraw the Lines of Free Speech

A battle over abortion rights and free speech developing at the Supreme Court started with a trip to the T-Mobile store.

Not long after she’d first been elected to the state legislature in 2014, California Assembly member Autumn Burke went to a downtown Los Angeles shopping center to get her BlackBerry fixed. While she was waiting to be called to the help desk at T-Mobile, Burke said she wandered over to a crisis pregnancy center (CPC) just across the way and picked up an informational pamphlet. As she flipped through it, she saw a line about abortion’s alleged link to breast cancer.

“I was completely stunned,” Burke told Newsweek.

Pregnancy centers like the one Burke describes are thriving across the country, and state and federal lawmakers have very few options when it comes to regulating them. Opponents charge that they make unsupported claims about abortion—like the false claim about a link to breast cancer—that push particular political and cultural agendas. This week, the Supreme Court will hear arguments about a California law, co-authored by Burke, that seeks to regulate the centers. It requires them to disclose whether or not they’re licensed medical providers and to provide information about the state’s abortion and contraception services.

“I’m not asking anyone to offer an abortion or do anything else that violates their religious beliefs. I’m not trying to police conversations,” Burke said. “But in California, we have the right to regulate entities that say they provide medical care.

“This law is the most polite way I can ask you to be honest,” she added.

National Institute of Family and Life Advocates (NIFLA) v. Becerra, the Supreme Court case that deals with the California law, however, is poised to raise exactly the kinds of concerns to which Burke alludes. To hand down a decision on the case, justices will have to wrestle with whether the law’s requirements count as government-compelled speech, and whether the pregnancy centers, many of which are faith-based, are subject to religious exemption.

Supreme-Court The Supreme Court ruled in favor of a baker who did not wish to bake a cake for a gay couple's wedding. Mark Wilson/Getty Images

“We’ve seen this growing idea of the right of the government to speak when we think it must,” Gene Policinski, the chief operating officer of the Newseum Institute’s First Amendment Center, told Newsweek. “We used to hold that in very narrow check.”

Nonetheless, Policinski said the First Amendment community often finds itself divided over free speech issues that have to do with consumer services, like those CPCs provide. Arguments for the right to speech can become thorny when there are commercial entities involved. Add abortion rights to the equation, and things get even trickier. For that reason, Policinski was hesitant to compare NIFLA v. Becerra to any other free speech cases, because abortion “involves emotional and religious values.”

The court’s decision has weighty consequences for both sides of the issue, but even if justices strike down California’s CPC legislation, pro-choice activists could still land a win. The precedent established by Zauderer v. Office of Disciplinary Counsel, a 1985 Supreme Court case that required lawyers to make certain disclosures, gives California lawmakers room to replace its current law with one that only requires CPCs to disclose that they don’t provide contraception or abortion care, rather than mandating that they tell patients that there are other clinics that do.

Policinski is going to stay tuned to see how the case plays out, because he senses that NIFLA v. Becerra will usher in a new era of how American society views government speech.

“Traditional lines about this are being redrawn,” Policinski said.

Burke, however, is eager to see how the court answers a larger question she has, about women’s reproductive rights.

“I can’t think of any institution or industry where we encourage misleading advertising and dishonesty,” she said. “Why in women’s health care would that be acceptable?”