Freedom of speech includes the right to remain silent

Governments routinely behave badly, but sometimes their mean-spiritedness comes to the Supreme Court’s attention. On Tuesday, it will hear oral arguments concerning the constitutionality of measures that California’s government has taken to compel pro-life entities to speak against their own mission. Crisis pregnancy centers are nonprofit facilities usually owned and operated by people with religious objections to abortion.

A 2015 California law requires licensed pregnancy crisis centers to tell clients (in pamphlets, in waiting-room signs) this: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care and abortion for eligible women.”

So, government compels licensed centers to provide free advertisements for governmentprovided abortions.

And government compels unlicensed centers to say — in large fonts, in as many as 13 languages, even on their own websites — that they do not have medical providers that the government itself says, by not requiring them to be licensed, are not necessary for the services they provide.

California tailored the law to target only crisis centers: It exempts from the compelled speech requirements all women’s health services providers that dispense abortifacients. The crisis centers are incorporated as religious organizations and their mission is dictated by the content of their beliefs. The pro-choice government is targeting the centers to exercise onesided influence on some women’s choices.

The Cato Institute’s Ilya Shapiro, author of an amicus brief supporting the crisis centers, says it is telling that California has no comparable law requiring abortion providers to post advertisements for adoption agencies or other alternatives to abortion.

Neither the 2015 law’s legislative history nor the state’s brief in defense of the law provides any evidence for the state’s charge that the centers “confuse,” “misinform” or otherwise harm women. And the law clearly has nothing to do with ensuring informed consent by clients of the pregnancy crisis centers.

Pro-choice defenders of California’s patently content-based and discriminatory law should consider the following.

Suppose a pro-life state government were to require all publicly and privately funded abortion providers to advertise on their premises the locations and services of crisis pregnancy centers.

Or even to post the following accurate information on their premises, websites and advertisements:

“Eighteen days after conception, the unborn baby’s brain begins to form. At about three weeks, the heart begins to beat, circulating the baby’s blood. At six weeks, brain waves are detectable and at seven weeks, the baby is kicking . ... ”

A pro-life government’s point in compelling the placement of this factual notice would be not just to inform women contemplating having an abortion but to incline them against doing so.

The abortion providers would be compelled to disseminate a message contrary to their beliefs about the morality of abortion.

This would be (as Shapiro says of California’s compelledspeech law targeting the crisis centers) government putting “its thumb on the scale in a social debate, by conscripting individuals to help spread a particular message.”

As the Supreme Court has held, freedom of speech means freedom to choose what to say — and what not to say. The pregnancy crisis centers have a right that California’s bullying government also has and that it would do well to exercise more often: the right to remain silent.