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California’s Reproductive FACT Act: An Attack on Free Speech or a Defense?

SACRAMENTO, CALIF. — According to California Assembly Speaker Toni Atkins, California’s pending Reproductive FACT Act, AB 775, is a law “intended to compel crisis pregnancy centers (CPCs) to offer factual information about all options available to pregnant women and to disclose if a facility is unlicensed.” A March 2015 investigative report by NARAL Pro-Choice California (NPCC) apparently triggered the drafting of this legislation. A companion NPCC national report is here.

In its study, NPCC found that certain CPCs try to discourage women who are conflicted about their pregnancy from having an abortion. NPCC included in its findings that “CPC workers are well-trained to lie to women about physical and mental health issues they claim are associated with abortion. . . . . At a vulnerable time, CPCs delve into personal details during counseling to try to make women feel guilty about choosing abortion.”

NPCC asserts that 91% of unlicensed CPCs provided defective medical information such as a false link between abortion and breast cancer or suicide.

The NPCC study observed that many CPCs were unlicensed in California and funded by anti-abortion groups. According to Speaker Atkins, unlicensed CPC facilities are “not subject to privacy-protection laws like doctors’ offices or medical clinics.”

Atkins characterizes AB 775 as “not about limiting free speech [but] is about empowering patients to make informed decisions. . . .” Opponents of AB 775 assert the proposed law violates the First Amendment rights of affected facilities. If the bill is passed into law, it is reasonable to expect a court challenge on free speech or other grounds.

Contours of Free Speech: Libertarian vs. European

Assuming that NPCC’s characterization of the unlicensed CPC situation is accurate, AB 775 presents a potential dispute between two fundamentally different ideological visions of free speech. Liberal and conservative constitutional scholars view current free speech disagreements as a competition between European and libertarian points of view. Free speech in the U.S. under the libertarian viewpoint is less restricted by law than in Europe.

I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.
U.S. Supreme Court Justice Clarence Thomas
The 2010 Citizens United v. FEC Supreme Court decision reflects the dominance of the libertarian view.

Limits on free speech in the U.S. are primarily defined by assertions of false facts that cause reputation or other damage to a person or legal entity such as a business. Defamation, libel, slander and false or misleading commercial speech generally define the limits of legal free speech.

In Europe, it is generally easier to convict a person in court for defamation.

Because the U.S. Constitution is silent on the concept of “commercial speech,” which may be what anti-abortion CPCs engage in, conservative Supreme Court justices holding anti-government ideology are anxious to eliminate any distinction between commercial speech and core political speech.

According to Justice Clarence Thomas: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” A dispute over AB 775 may center on whether First Amendment free speech rights protect the right of anti-abortion CPCs to deceive women about their abortion options and rights.

As argued before, considering contested political issues from an objective point of view and the major subjective points of view helps reveal a more nuanced understanding than normal two-party rhetoric normally permits. That “open minded” tactic tends to make the basis for apparently irreconcilable opinions and opposite policy choices more understandable, if not necessarily rational from an objective point of view (POV).

The Liberal POV

AB 775 reflects the liberal POV toward free speech. AB 775 is in sync with liberal ideology that tends to serve the public good via government action.

For this issue, liberal common sense sees the public interest as being served by requiring competence and honesty in the anti-abortion CPC industry. This point of view further claims that requiring anti-abortion CPCs to be honest about all options does not affect any anti-abortion CPC’s free speech rights.

Instead, the proposed law imposes a requirement to add unwanted free speech to their menu of services — i.e., complete, honest medical information about abortion-related options.

The Conservative POV

Most conservatives, especially anti-abortion Christians, would not only probably see AB 775 as a blatantly unconstitutional law that infringes on their free speech rights, most also see abortion itself as unconstitutional and/or unjustified murder. Some Christians might even consider AB 775 to be an unconstitutional infringement on their religious freedoms.

From the conservative POV, it is easy to see lying to women who want honest information about abortion options as a trivial, inconsequential concern that AB 775 has no business dealing with.

Opponents of AB 775 attack the law because:

  1. “California has had a long standing record as a leader in advancing and protecting diversity and inclusion of all values and beliefs. AB 775 is an antithesis to this tradition.”
  2. “AB 775 is demeaning to women. Women are smart and they know that they have options regarding their pregnancy.”
  3. “The law constitutes “government compelled speech.”

The first criticism is odd because conservatives and socially conservative Christians tend to be the groups that most stridently oppose “inclusion of all values and beliefs” (e.g., same-sex marriage, public school desegregation, interracial marriage and civil rights laws, including abortion).

The conservative POV generally believes that more free speech is better.
The third criticism is also odd because conservatives have been trying for years, among other things, to force abortion providers to show pregnant women sonograms of their fetuses, which amounts to compelled government speech.

These apparent logic inconsistencies are understandable if these oddities are seen as conservative ideology or values dictating inconsistent policies when values and logical consistency are at odds. It is likely that in the mind of most conservatives and anti-abortion Christians, there are no inconsistencies in their policy choices.

The conservative POV generally believes that more free speech is better. That accords with the libertarian POV.

Despite that, it is clear that many conservatives believe that liberal free speech is generally not a good thing. This implies that conservative belief generally holds that conservative speech, including lying to women seeking abortion advice, is much more good than bad while liberal speech is presumably much more bad than good.

That common sense accords with mainstream subjective conservative ideology or values.

The Two-Party System POV

Because California is much more liberal than conservative, the ideology or values of the state-level two-party system and mainstream liberals largely overlap. Regardless of Republican ideological opposition in the state legislature, AB 775 will likely pass and, given his pro-abortion ideology, Governor Jerry Brown will presumably sign it.

The two-party system at the national level will become relevant if AB 775 opponents challenge the law and the dispute winds up in the U.S. Supreme Court. Given the Supreme Court’s bias toward libertarian free speech ideology, which generally abhors free speech restrictions, and its conservative opposition to imposition of federal power over individuals, there is a fair chance AB 775 would be struck down as unconstitutional.

The court has at least two grounds to invalidate AB 775: (1) As an infringement on core protected free speech, which is newly defined to include commercial speech; and (2) because it needlessly compels objectionable speech by independent businesses who operate for the public good.

The Objective POV

From the objective POV, AB 775 presents a fascinating potential dispute between competing subjective visions of free speech in the context of health care and abortion rights. For this issue, the objective POV accords with the liberal POV and the law could even be seen as a defense of free speech.

If NPCC research on unlicensed anti-abortion CPCs is accurate, then the true purpose of those organizations is to talk women out of having an abortion via false medical advice, deceit, delaying an abortion decision until it is too late, and/or psychological coercion. NPCC research shows that they are not in business to honestly inform pregnant women about all of their options and privacy rights.

And, beyond sonograms, contraception, and pregnancy counseling and pregnancy testing, anti-abortion CPCs provide little in terms of actual medical care. This amounts to seeing anti-abortion CPCs as fundamentally fraudulent relative to their advertised purpose, while claiming to act in accord with free speech rights.

AB 775 does not restrict unlicensed CPCs from trying to talk women out of having an abortion, presumably because that is a valid medical choice and thus legal to discuss.

Under the circumstances, the argument that AB 775 infringes free speech is not convincing from the objective POV described before. AB 775 does not limit what anti-abortion CPCs can say. Instead, it compels anti-abortion CPCs to say things they do not want to say.

It is hard to logically see AB 775 as an invalid infringement of free speech. Respect for unspun fact and unbiased logic are core objective ideological values. What anti-abortion CPCs do is factually deceptive and morally and logically bankrupt. Logic and the public interest dictate that anti-abortion CPCs should be regulated by law at least as potent as what AB 775 imposes.

Where are the lawsuits?

Despite wrongful pregnancy lawsuits, there is an apparent absence of lawsuits from women talked out of an abortion by unlicensed, anti-abortion CPCs. Anti-abortion CPCs operate as nonprofit businesses, i.e., are tax subsidized by the American people, including women who need and expect competent, complete abortion advice.

Like other commercial operations, they are presumably liable for damages from defective medical advice, particularly when the services are intentionally deceptive, i.e., defective advice. Women who relied in good faith on lies about a life-altering medical decision would seem to have suffered damages that flowed directly from relying on bad advice.

Even though such businesses are responsible for some or all of the cost to raise unwanted children, it is not clear that there is any legal remedy for women who were deceived. Until that theory of damages is tested in court, caveat emptor applies for women seeking honest advice, especially if the courts expand free speech to protect anti-abortion CPC speech.

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