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Clarence Thomas Weirdly Compares California to Third Reich, Sides With Pro-Lifers


Today, the Supreme Court’s usual suspects got into a battle of “strict interpretation of the law” versus “totally missing the point” in a case involving everyone’s favorite legal hits – abortion and free speech. The underlying case, National Institute of Family and Life Advocates (“NIFLA”) v. Becerra, is one between the State of California and a group of “crisis pregnancy centers” over just how far the Constitution will go to protect vulnerable women against shady information.

Here’s the backstory.

Thousands of anti-abortion “crisis pregnancy centers” are opening up around the country, often in close proximity to actual reproductive health centers; these clinics look and feel a lot like their medical counterparts, sometimes even sporting intentionally-similar names. When women enter (many mistakenly having done so), they are counseled toward a unilateral goal of maintaining their pregnancies. The centers’ tactics are anything but transparent; studies have shown that many women are presented with false medical information about everything from the specifics of abortions to the pregnancy’s gestational age.

To combat the growing problem, California passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “FACT Act”).

Under the Reproductive FACT Act, nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must notify patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Unlicensed centers that support pregnant women in ways such as giving them diapers and formula, must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. Organizations found to have violated the law can be fined $500 for the first offense and $1000 for secondary offenses.

The NIFLA centers, flanked by the same lawyers who went to court for Masterpiece Cakeshop, litigated. They argued that the requirement to post notices violates the First Amendment in a number of ways. Their arguments can be boiled down to “this isn’t fair,” “this is too much trouble,” and “a requirement that we provide honest information to pregnant women interferes with our anti-abortion messaging.”

According to groups representing the centers, California’s mandate constitutes “coerced speech” which “crowds out” the centers’ pro-life messages. The case arrived at the Supreme Court after NIFLA lost its motion for an injunction before both the District Court and the Ninth Circuit; today, though Justice Clarence Thomas exercised his signature willful blindness when he held that California law didn’t need to be so restrictive, because the free market would simply handle the messy business of women’s health.

Thomas, speaking for the 5-4 majority, sympathized with the concerns of the CPCs, saying:

By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech…

Here, for example, licensed clinics must provide a government-drafted script about the availability of state sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing.

Thomas wasn’t feeling California’s argument that its law is proper because it simply regulates the speech of professionals who are already required to abide by certain legal requirements.

Thomas wrote:

…this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”

And then he made a comparison that was interesting, to say the least. Thomas quoted the cautionary tale of Nazi Germany, in which the Third Reich taught doctors that their obligation to German society outweighed that to their individual patients. Thomas also mentioned Chinese, Russian, and Romanian governments that had improperly interfered with doctor-patient relationships. The antidote for such interference, according to Thomas, is the free market.

Although the majority based its decision on the presumptive unconstitutionality of all content-based regulations, Justice Thomas couldn’t help taking a few jabs at California. If California were actually interested in educating poor women about healthcare, he reasoned, it could do so via strategically-placed public service announcements.

In Justice Breyer’s dissent (joined unsurprisingly by Kagan, Sotomayor, and Ginsburg), the Justice bluntly called out the double-standard the majority seems to be applying toward the pro-choice set:

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

Speaking of double standards, NIFLA v. Becerra may end up being one of those cases in which a win today amounts to a loss tomorrow (or vice-versa depending on which side of the abortion debate one falls). Plenty of states have laws mandating what abortion providers must say to women seeking abortions. Those laws have yet to be challenged under the kind of logic applied in this case – but if we follow Justice Thomas’ logic, such laws would likely also fail on First Amendment grounds.

Well, as long as the free market can sort everything out, I guess we’ll be fine.


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos