Yesterday, the U.S. Supreme Court issued a ruling in the case of NIFLA v. Becerra, overturning a previous 9th Circuit ruling involving a California law that forced pro-Life pregnancy centers to refer women for abortion. Becerra is the Attorney General of California. NIFLA is the National Institute of Family and Life Advocates. They were joined by numerous pro-Life pregnancy centers.
As we’ve written before, there has been a new attack line on the pro-Life movement in recent years. Draconian laws have been passed in (at least) California and Hawaii to hamper the efforts of the pro-Life community to save preborn children and their mothers. The 9th Circuit got its way around the First Amendment by arguing that California was only trying to regulate “professional” speech.
In his majority opinion, Justice Clarence Thomas made it clear that the U.S. Supreme Court has never recognized categories of free speech – based upon who was doing the speaking. There is just free speech. And the government is not free to compel speech.
One would have hoped that the learned people on the 9th Circuit might have known that already.
We fully expected to win this case. We have dealt with the issue of professional speech a number of times when we have sought to pass laws requiring doctors to provide information to women considering abortion (informed consent). Supreme Court precedent has made it clear that we cannot make a doctor say something he or she would not otherwise choose to tell a patient. (Requiring them to provide written material, prepared by the State of Idaho, is a different matter).
What is surprising, however, is the fact that four justices of the Supreme Court – Breyer, Ginsburg, Sotomayor and Kagan – had no problem overlooking the Court’s own precedent to advance their ideological agenda. More importantly – the First Amendment itself represents no substantial obstacle for these people, either. It is painfully obvious that, for these leftist activists, the Constitution means little except as it can be manipulated into providing the means to an end.
This is a radically different view than the one held by the Founders. Those ancients saw the Constitution as the end itself. Opinions, movements and problems change from time to time. The solutions reached by society from time to time can be flexible. But the Constitution enshrines eternal truths about man and his proper relationship to government; whimsical political solutions cannot be allowed to violate the fixed nature of man and the rights he has acquired as an expression of God himself.
Classical liberalism once defended such a view of the Constitution – and it fought hard for those ideals. It is very troubling to see that no such understanding exists today among the American Left. They have been seduced by their own self-righteousness into a kind of soft totalitarianism.
About all we can add is a prayer of gratitude: Thank the Lord Trump won. A Clinton justice would have vindicated the 9th Circuit. That outcome would have set the stage for government using its coercive powers to drive the pro-Life movement from the public square.