Compelled Speech & Abortion: Two Wrongs…

Here’s a “pro-life” victory we can celebrate, even if it inures to the benefit of some of the worst organizations known to man.

A “crisis pregnancy center” is essentially a missionary outpost masquerading as a clinic. Designed to lure vulnerable women — resolved to seek an abortion, or as-of-yet undecided about how to respond to an unplanned pregnancy — CPCs promise to offer counseling, medical references, medical procedures, or some mixture thereof, but instead push one option only. Your fetus is a child; abortion is wrong; carry to term and seek adoption. Functionally, it’s an ideology-motivated bait-and-switch targeted to those most in need of honest, caring advice.

But if CPCs operate in derogation of the laws of nature — “don’t lie!” — they do not necessarily transgress against the laws of man. New York attempted to change that, issuing a law (NY Council Bill 371A) requiring defined organizations to (1) disclose (a) whether the center retained medical personnel on staff,  (b) whether it offered abortions, and, separately, (2) advise women to seek alternate medical advice, as necessary. Essentially the bill guaranteed transparency, by forcing CPCs to expose themselves for the frauds they are.

A laudable goal, but as a New York federal court properly held earlier this month, an unconstitutional one. The state may not compel private groups to toe the party line, and, all agree, it certainly cannot compel groups to  speak against their interest, even by means of a tied grant. Thanks to the Supreme Court, the law of “compelled speech” remains an incomprehensible mess — internally contradictory and based on what are, essentially, distinctions so fine as to be ad hoc, illusory, or deliberately disingenuous — but this is clearly right. CPCs may be monstrous, fraudulent, and abusive, but the First Amendment permits precisely these sorts of monstrosities in the absence of some duty running to the public at large.

What would be nice, though, is if courts would apply the rule across the board. NYC Bill 371A is, essentially, the benevolent inversion of another rule that the Supreme Court previously sustained, under a tortured and incomprehensible case called Rust v. Sullivan. In Rust, the government forbade doctors in receipt of federal funds from performing, discussing, or even providing a reference to women seeking an abortion. Chief Justice Rehnquist upheld the rule against constitutional challenge, and would distinguish it from the instance case by noting that the Rust rule requires neutrality — doctors must simply never mention abortion, positively or negatively — not advocacy of the government’s message. But does it? True “neutrality,” in the context of medical services, would be to take a hands-off approach and let physicians faithfully discharge their duties as medical professionals, without any interference from the government. Isn’t forcing a doctor to squeeze fact-bound medical decisions into an artificial, limiting framework of political neutrality a divergence from substantive neutrality, even if it appears neutral in form?

Yes, obviously. But like physics at the event horizon of a singularity, the rule of  law falls apart whenever it comes into contact with abortion ethics.

Advertisements

7 comments

  1. From Ames (emphasis mine):

    “What would be nice, though, is if courts would apply the rule across the board. NYC Bill 371A is, essentially, the benevolent inversion of another rule that the Supreme Court previously sustained, under a tortured and incomprehensible case called Rust v. Sullivan. In Rust, the government forbade doctors in receipt of federal funds from performing, discussing, or even providing a reference to women seeking an abortion.”

    Do the CPCs receive federal funds?

  2. Then it seems the government should be able to limit undesirable behaviors in CPCs in the same way they use funding to steer the policies of other fund recipients. Surely the Left can muster the votes on that legislation – correct?

  3. Sure. That’d be the “equalizing up” position. I think the more desirable option, more consonant with the “strong” First Amendment that we increasingly see, would be “equalizing down.” That is, forbid the government from “steering” policies in any organizations with funding.

    1. So you just want the government to be a silent partner and never have an opinion? It seems like that all-or-nothing approach would result in funding being yanked from a lot of organizations instead of the organizations being offered the opportunity to meet new expectations.

  4. Requiring disclosure is unconstitutional compelled speech? Is it because these centers don’t in any way operate under regulation? That’s the only way I see these centers as different from credit card companies, for instance, and they operate under strict disclosure rules to customers even when obfuscation would be in heir best interest. And then, why couldn’t we regulate pregnancy counseling, especially when they operate in a pseudo-medical gray area where the state has an interest in preventing misleading practices?

  5. I’m with Kris here. How is what New York tried to do any different from what the FTC does with advertisers or funeral parlors, or FDA does (“these statements have not been validated, this product is not intended to treat, diagnose etc.)?

%d bloggers like this: