In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West by Wendy Brown

Author:Wendy Brown
Language: eng
Format: epub
Tags: Philosophy, Movements, Critical Theory, Political, Political Science, History & Theory
Publisher: Columbia University Press
Published: 2019-07-16T00:00:00+00:00

Praying Pregnancy Centers: National Institute of Family Life Advocates, DBA NIFLA, et al. v. Becerra, Attorney General of California

We turn now to a second case concerned with compelled speech decided by the Supreme Court in 2018. In this one, petitioners use the First Amendment as a deregulatory power to perpetuate simultaneous concealment and expansion of their religiously motivated policy aims into public space.

National Institute of Family Life Advocates, DBA NIFLA, et al. v. Becerra, Attorney General of California (hereafter identified as NIFLA) tested the constitutionality of California’s 2015 Reproductive FACT Act. That act required unlicensed crisis pregnancy centers (hereafter identified as CPCs) to post a statement that they are not medical facilities and required all CPCs to post or distribute a statement identifying the availability of free or low-cost comprehensive reproductive health care, including prenatal care and abortions, provided by the state of California.

Petitioners alleged that both notices abridged their freedom of speech. The majority opinion, delivered by Justice Thomas, upheld this claim, arguing, “the FACT Act unduly burdens protected speech. It imposes a government-scripted, speaker-based disclosure requirement” while leaving “unburdened those speakers whose messages are in accord with” the government’s “own views.”32 In addition, the opinion argued that the FACT Act perpetrated “viewpoint discrimination” against the CPCs and that the speech it aimed to impose was “content based,” rather than essential, uncontroversial, factual information.

None of the opinions in the case—majority, concurring, or dissenting—explains the context and motivation for the FACT Act, an absence that gives the decision a technical, rather than political ring and downplays its significance for women’s reproductive freedom. Without appreciation of what crisis pregnancy centers are and how they operate, it is impossible to understand what the FACT Act aims to redress and why CPCs resisted it so fiercely.

There are now approximately four thousand crisis pregnancy centers in the United States.33 Most obtain organizational, financial, legal, and personnel support from large umbrella organizations such as NIFLA, CareNet, and Heartbeat International.34 By all accounts, CPCs have one goal, which is to convince women carrying unwanted pregnancies not to abort them. However, their self-representation and techniques for attracting clients intentionally obscure this goal and often their religious backing, as well. That is because their target clientele is women whom they call “abortion vulnerable”—women carrying unwanted pregnancies and seeking or considering an abortion.35 As antiabortion activist Abby Johnson said of CPCs at the annual Heartbeat International conference in 2012, “We want to appear neutral on the outside. The best call, the best client you ever get is one that thinks they’re walking into an abortion clinic.”36

To this end, most CPCs indicate on their websites and other materials that they offer “abortion counseling,” even if the fine print may reveal that they do not provide or refer for abortions. Reception staff are trained to dodge the question when potential clients ask on the phone if they provide abortions. CPCs advertise a “supportive and non-judgmental” environment, “no matter what you decide to do.” All claim to offer “unbiased, confidential and free medical, educational and support services” for women facing an unplanned pregnancy.

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