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Justice Kennedy: California Isn’t as ‘Forward Thinking’ as It Likes to Believe


Tuesday’s Supreme Court decision in NIFLA v. Becerra sided with three religiously-affiliated organizations that provide services for pregnant women, in their fight against a California law that required them to provide notice to patients about the availability of publicly funded options, including abortion. Justice Clarence Thomas, in his opinion for the Court, chose to focus on the fact that lower courts didn’t apply the proper degree of scrutiny to California’s FACT Act because it deals with content-based regulations of speech. Thomas mostly shied away from the argument that the Act imposes a particular viewpoint. Justice Anthony Kennedy wasn’t nearly as shy in his concurring opinion.

Kennedy made a point to deliver some harsh words against California lawmakers in his brief concurring opinion. He called out California, saying, “the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions,” which ” compels individuals to contradict their most deeply held beliefs.”

Kennedy noted the irony of how the official history of the California Legislature included a “congratulatory statement” that the FACT Act continued the state’s legacy of “forward thinking.” To the contrary, he wrote, “it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”

Instead, Kennedy wrote, “It is forward thinking to begin by reading the First Amendment as ratified in 1791,” referencing the dangers of authoritarian regimes that imposed their will on the people.

“Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Kennedy concluded. “Freedom of speech secures freedom of thought and belief.”

[Image via Chip Somodevilla/Getty Images]

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