Maybe Senator Billie Sutton’s vote for Senate Bill 110 and other anti-woman abortion restrictions won’t matter. Tomorrow the United States Supreme Court hears a case from anti-abortion radicals in California that could, with blissful irony, undermine South Dakota’s legislatively mandated anti-abortion propaganda.
The case at hand is National Institute of Family and Life Advocates v. Becerra. NIFLA (not to be confused with knoephla, the far tastier potato dumpling soup) operates “crisis pregnancy centers”—generally religiously motivated outfits like the Alpha Center in Sioux Falls that try to persuade women not to abort their pregnancies. California state law requires NIFLA’s 130 centers and other CPCs to tell their clients that the state provides low-cost or free contraception, prenatal care, and abortion. NIFLA and its anti-abortion supporters say that’s compelled speech:
Mark L. Rienzi, a religious liberties lawyer who represents pregnancy clinics, frames the debate as a question of whether the government can force anti-abortion activists to give clients phone numbers of abortion providers.
“Can the government make you say something you don’t want to say?” Rienzi asked. “They are pro-lifers. They exist to tell people you shouldn’t get an abortion” [Maura Dolan, “California’s Anti-Abortion Pregnancy Centers Want the Supreme Court to Overturn State Notice Law,” Los Angeles Times, 2018.03.18].
Read Rienzi’s opening line again: Can the government make you say something you don’t want to say? That line is central to NIFLA’s argument to the Supreme Court. It is also central to my opposition to SB 110 and the rest of South Dakota’s “informed consent” laws that make abortion providers recite the government’s propaganda and outright falsehoods.
The implications of NIFLA v. Becerra for South Dakota’s anti-abortion compelled-speech statutes is clear to George Will, who appeals to exactly our Legislature’s unconstitutional overreach to justify his support for NIFLA’s position:
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. By week nine, the baby can suck his or her thumb and move his or her head. From weeks ten through 13, bones harden and teeth, fingerprints and fingernails begin to form. At 26 weeks, the spinal cord and pain receptors are in place for pain transmission to the brain.”
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 compelled-speech 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 [George Will, “Freedom of Speech Includes Freedom to Remain Silent,” NewsOK, 2018.03.18].
Take a gander at that legal goose: if the Supreme Court says that a state cannot force CPCs like the Alpha Center to recite any particular message on behalf of the state, then a state like South Dakota cannot force Planned Parenthood to utter any of the tricks and lies encoded in SDCL 34-23A-10.1. The complaints against Planned Parenthood enshrined in the chilling findings of SB 110 would disappear. South Dakota Right to Life could no longer hijack our Legislature to spread its propaganda, and anti-abortion extremists would have to stick with their billboards and pickets to discourage women from exercising their rights under Roe v. Wade and the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
If the anti-abortion radicals win NIFLA v. Becerra, so do Planned Parenthood and women nationwide.