Abortion is a divisive moral and political issue that generates ceaseless heated debate, as it should.
However, it also entices those who feel passionately about it, one way or the other, to use politics to shut down the other side.
We saw a prime example of that in the California Legislature’s self-righteous efforts to compel clinics offering non-abortion services to pregnant women to post notices telling them about the availability of abortions.
The Democratic supporters of the 2015 “Reproductive Fact Act” tried to justify it as supporting women’s reproductive rights, but it was a very clear violation of constitutional free speech rights, as the U.S. Supreme Court declared last year.
“By compelling petitioners to speak a particular message, it alters the content of (their) speech” and thus violates a previously enunciated judicial principle, the majority opinion declared. “For example, one of the state-sponsored services that the licensed notice requires petitioners to advertise is abortion – the very practice that petitioners are devoted to opposing.”
The 5-4 decision took a slap at the California-centered 9th Circuit Court of Appeals, known for its tilt to the liberal side of issues, for its willingness to abridge free speech.
Just as Guilty of Trying to Shut Down the Pro-Abortion Faction
“Although the licensed notice is content-based,” it continued, “the 9th Circuit did not apply strict scrutiny because it concluded that the notice regulates ‘professional speech.’ But this court has never recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals.”
That’s also an important point, because clearly the legislators and then-Gov. Jerry Brown had painfully attempted to avoid the free speech issue in the legislation by portraying it as just a consumer protection measure.
While the Supreme Court’s ruling cheered those on the anti-abortion side of the debate, they are just as guilty of trying to shut down the pro-abortion faction.
The flip side of the unconstitutional California law is that 18 states require that women contemplating abortions be given counseling either about a purported, but unproven, link between abortion and breast cancer, the ability of the fetus to feel pain and/or long-term mental health consequences of abortion.
That attitude – that women should be manipulated – is also evident in new regulations promulgated by the Trump administration prohibiting clinics receiving federal family planning funds from offering abortions or referring women to abortion services.
An Attack on Women Everywhere
Last week, California Attorney General Xavier Becerra filed a lawsuit challenging the new rules.
“The Trump-Pence administration has doubled down on its attacks on women’s health,” Becerra said. “This illegal Title X rule denies patients access to critical healthcare services and prevents doctors from providing comprehensive and accurate information about medical care.”
Becerra’s Capitol news conference announcing the suit was joined by some 20 women lawmakers, as well as Gov. Gavin Newsom’s wife, Jennifer Siebel Newsom.
“This gag rule is an attack on women everywhere,” Siebel Newsom said.
Yes, it is a gag rule that abridges free speech, just as the California law did, although the rule may be on slightly firmer constitutional ground since it involves the expenditure of funds and wouldn’t affect clinics that don’t receive those funds.
Regardless, one either believes in free speech as a constitutional right or one doesn’t. And it’s important that the principle be upheld no matter how heated the debate or divisive the issue.
CALmatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.