SACRAMENTO ??? The California Assembly recently passed on a 49-26 vote a bill that its supporters say is about protecting a woman???s right to an abortion, but which raises some constitutional issues that almost certainly will get hashed out in federal courts if it becomes law. Critics describe it as an assault on the First Amendment right to free speech.
Dubbed the Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act, AB 775 would require licensed family planning clinics that oppose abortion to provide patients with information about their ???reproductive rights??? and the availability of an abortion. Unlicensed counseling centers would be required to post a notice stating they are not licensed medical facilities.
The bill is backed by the National Abortion Rights Action League and California Attorney General Kamala Harris ??? and is targeted at pregnancy counseling centers that encourage women to carry their pregnancy to term. These are private clinics funded by private donors. The people who operate them are motivated by religious and moral opposition to abortion.
The issue here isn???t so much abortion but speech because the government would require these clinics to offer counseling that conflicts with their moral values.
The bill???s author, Assemblyman David Chiu, D-San Francisco, argues that these ???life??? centers provide confusing, inaccurate and partial information. According to the Assembly bill analysis, ???The author contends, unfortunately, there are nearly 200 licensed and unlicensed clinics known as crisis pregnancy centers in California whose goal is to interfere with a woman???s ability to be fully informed and exercise their reproductive rights ??? .???
The bill???s opponents question whether it is the government???s place to determine the extent of ???full information??? within private organizations or to decide that one point of view is ???unfortunate.???
???Does the government have a right to tell a newspaper what to write, a preacher what to preach, a private school what to teach? Of course not,??? said Assemblywoman Shannon Grove, R-Bakersfield, in a statement. ???So why is it OK for the government to force pro-life pregnancy centers against their will to advertise and promote government abortion services????
Localities in other parts of the country have passed similar bills. For instance, New York City passed a law in 2011 that included disclosure requirements on counseling centers. The courts upheld the requirement they disclose whether they have licensed medical staff on site ??? but tossed as unconstitutional “compelled speech??? the provisions requiring them to encourage patients “who are or who may be pregnant to consult with a licensed provider.”
In a letter to the Assembly Judiciary Committee, the Alliance Defending Freedom ??? a Folsom-based legal group that defends these pregnancy counseling centers ??? argued the bill would violate federal rules that ???states cannot receive federal funding if they rob women of the right to choose a pro-life medical provider by forcing pro-life entities to refer or arrange for abortions.???
But the group???s most compelling argument is not about federal funding and regulations, but about constitutional speech issues: ???Freedom of speech includes the right not to speak, and how to address or not to address a particular topic ??? .???
By contrast, Attorney General Harris said, in a statement, the bill is designed to assure that women ???are empowered to make informed and timely decisions about their health and their bodies.??? Certainly, the government has a role in making sure people are free to seek whatever information they choose and to have access to any legal services, but it???s a leap for it to decide which information is accurate or balanced.
And it???s clear from the statements of the bill???s authors, they are not so much concerned about assuring both sides of this morally contentious issue are evenhandedly offered ??? but about limiting the ability of one politically unpopular side (in the state Capitol) to make its case. The bill doesn???t, say, require clinics that provide abortions to offer information about adoption.
A good framework for considering any law one supports is to consider what it would be like if something similar were passed by one???s opponents. How many people want the government deciding what points of view they should offer or forcing them to offer views they find morally offensive?
Steven Greenhut is the California columnist for the Union-Tribune. Contact him at firstname.lastname@example.org