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NIFLA v. Becerra, Brought by Anti-Abortion Extremists, Could Kill SD “Informed Consent” Law

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.


  1. Ryan 2018-03-19 09:55

    Very interesting. I don’t have a strong personal opinion about abortion, but I lean towards supporting mothers’ rights over unborn-baby-rights. I just hope a strong message can be sent through the ruling on this case that every single person is allowed to think whatever they want to think about this issue, but that doesn’t mean you are allowed to mandate the behavior of other people. The question, when simplified, is something like this, “To what extent do absolute strangers have to participate in your subjective sense of morality?” Call me crazy, but I would like to see that answer land somewhere around “zero percent participation.”

  2. Cory Allen Heidelberger Post author | 2018-03-19 09:57

    …think what they want and say what they want, without government compulsion.

  3. o 2018-03-19 11:18

    First, I think it is adorable when people believe that reasons and reasoning will be applied to both sides of a conflict evenly. Nothing like the abortion debate to flush out a few good old double standards.

    I have real issues when state mandated suppression of information and deliberate promotion of misinformation (disguised as science) are used to justify policy.

    So much of the abortion debate, to me, is a smokescreen to mute the larger discussion on how poorly we treat women, mothers, and children in the US.

  4. mike from iowa 2018-03-19 11:41

    I mind the time a certain federal, so-called, independent inquisitor (Ken Starr) used the threats of contempt to compel Susan MacDougal to lie under oath about Bill Clinton. MacDougal went to jail instead and practically rotted away , in one of the less than stellar investigative abortions ever unfurled in American history.

    This is another instance where wingnuts want special rights.

  5. Debbo 2018-03-19 20:45

    I enjoyed George Will’s selective perception when he described “California’s bullying government”, but the federal government, which he and the GOP love to inveigh against, is in this case, their best friend.

    Oh George, George, George. Lies are lies, regardless of the source and no government should compel anyone to repeat lies. That includes yours, RTL and SDGOP lies. Inconveniently for Mr. Will, the California statement does not contain lies.

    The essence of it, as Ryan and o already said, is that you don’t get to control women’s bodies. End of story.

  6. Joe Nelson 2018-03-19 22:12

    I am all for the federal or state government telling people or companies that they have to include specific language or verbiage. Country of origin labeling, health risks of pharmaceuticals, compliance with building codes and the ADA, etc… accurate, factual, useful, and true information should be the standard. But then also allow the person or company to deduct from their income those expenses associated with government mandated speech.

    As always, I side with preserving life and protecting those people that do not have a voice to even exercise a choice.

  7. Cory Allen Heidelberger Post author | 2018-03-19 23:19

    Ah! Sensible Joe with the reasonable other side of the issue!

    The state does have an interest in making sure the public gets certain information. Now can we draw a boundary between the speech South Dakota compels Planned Parenthood to deliver and the speech California compels NIFLA to deliver? South Dakota has decided its interest in discouraging women from having an abortion overrides Planned Parenthood’s First Amendment rights. California has decided its interest in informing women about health care options available from the state overrides NIFLA’s First Amendment rights. Are the situations analogous? Do both sink or swim on tomorrow’s SCOTUS argument, or is there a difference?

  8. Joe Nelson 2018-03-20 04:11


    Like most things, it depends. And with our government, standards are rarely ever applied across the board. I have to be told where my lamb, chicken, and goat meat originates, but not my beef. Thanks lobbyists!

    I reckon the duty to provide information ultimately flows from the governments duty to provide for the general welfare of the people, and it seems the times when government gets involved in telling people or companies what they have to say is when it comes down to the life, limb, or serious injury of a person utilizing the product or service. So there is a distinction between the two situation.

    In the case of the National Institute of Family and Life Advocates, the service they provide (informing customers/individuals about adoption and the risks of abortion) is inert and harmless. Forcing them to tell the consumer that the the state provides low-cost or free contraception, prenatal care, and abortion does not protect the person from the services NIFLA provides. It may be akin to a private school teaching having to inform their students that the state provides free education. Sounds silly, and unnecessary, and is a case of the government forcing a person or company to say things that don’t alert the consumer to any information that would protect them from said person or companies products or services.

    If physician assisted suicide gets off the ground (it is maybe happening here in Hawaii), would we want to mandate that suicide hotlines inform their callers that the the state provides low-cost or free physician assisted suicide? I think most people would say no, but then again, people are down with telling them how the state provides a means to end their child’s life.

    Now for Planned Parenthood in Sioux Falls. Any organization that is performing medical procedures should be informing their consumers of what the risks are. Pretty standard practice. And it seems that the State has decided that Planned Parenthood has to disclose certain details to its consumers. I would hope that these facts are accurate and true, and would pertain to the health risks posed by having an abortion. Now if Planned Parenthood wants to slap a “Politicians in the State of South Dakota require us to tell you…”, I think they should be able to do so, and limiting them that freedom of speech seems a awful like the State is not only telling PP what to say, but also trying to co-opt their medical opinions and authority.

    “Hey doctor, we want you to say this to your patients, but don’t tell them we told you to say it, we want the patient to think that this is the opinion you hold and the conclusions you came to on your own accord based on science.”

    I am 100% against any type of thought control. Cigarette packs are honest about it, and it is called the Surgeon General’s warning. The State of South Dakota should not try to hide its authorship of what it wants said to patients.

    Finally, I must say it saddens me that we may never become a people who want to seek out new life and new civilization when we are so hellbent on destroying the very life we create. I cannot prove to anyone that unborn babies have sentience, if they have a soul, or a consciousness, or that they are even self-aware. But I do think that we should allow them to grow, and to explore the world, and to live. I think the Roe v Wade decision significantly redefined the boundaries of personal liberty and freedom, expanding them for some, savagely curtailing them for others. Do we not want to be a people that strive to seek out new life and diversity? Well, there it exists inside every pregnant woman. Waiting.

    (I only wish Captain Picard could have been there to convince the Supreme Court what kind of people we should strive to be. There was a man who respected life in all its forms.)

  9. Edwin Arndt 2018-03-20 08:29

    Well said Joe. Very well said.

  10. mike from iowa 2018-03-20 08:53

    Any organization that is performing medical procedures should be informing their consumers of what the risks are. Pretty standard practice.

    I believe it is well studied giving birth is more dangerous than an abortion. Anti-abortion groups do not tell people that. They also do not mention abortions are safe and available and constitutional.

  11. o 2018-03-20 08:58

    I have to take issue with one element of Joe’s remarks. “But I do think that we should allow them to grow, and to explore the world, and to live.” My issue is so many anti-abortion advocates continue to take this limited, passive stance on life: limited to taking away the ability of a pregnant mother to decide her reproductive destiny. There never seems to be the full advocacy of what a full spectrum pro-life policy should entail.

    I have come to consider Roe a modern “Sword of Damocles” – the constant threat that hangs by a thread over the head of our society. Given that, how can we act to really protect and cultivate policy and actions and FUNDING to ensure the care of pregnant mothers, the safe delivery of children, the care of newborn children, the care, nutrition, and education of those children as they grow. Instead of society taking a passive stance that seems to have expiration upon delivery (and too often unwilling to put money toward those in need), we should take an active stance that puts our money where our pious slogans take us. Unwillingness to have far greater public funding for pre-natal care, full funding for child delivery, funded parental leave policies and child care policies, well-funded nutrition and education policies demonstrates to me that pro-wealth has trumped pro-life. Fund a true pro-life agenda and see what happens to the abortion rate.

  12. Cory Allen Heidelberger Post author | 2018-03-20 09:40

    NPR’s Nina Totenberg notes that California’s law may serve as a check on false advertising:

    There are plenty of good reasons, replies Nancy Northup, president and CEO of the Center for Reproductive Rights.

    “There has been an explosion of these fake health clinics that mislead women in ways that are very troubling and in some cases dangerous to their health,” Northup said. “If these fake medical centers had on their front doors, ‘We’re pro-life centers. We’re here to help you decide to continue your pregnancy,’ there’s nothing wrong with that, and that’s fine. But what they’re trying to do instead is lure women in on false pretenses.”

    …Jacob Hall is director of services and client care at Care Net, an organization that supports crisis pregnancy centers. At a recent Care Net conference, he advised the centers on how to use search engines to identify key words for their marketing and websites, the object being to attract women searching online for an abortion clinic to an anti-abortion pregnancy center instead.

    …Brian Fisher, of Human Coalition, another group that helps anti-abortion clinics, has also advocated using these tactics to attract women seeking an abortion in hopes of derailing their plans. This sort of marketing is necessary, he argued last year, because “the abortion-determined woman will not walk into a pregnancy center voluntarily”
    [Nina Totenberg, “Abortion and Freedom of Speech: A Volatile Mix Heads to the Supreme Court,”, 2018.03.20].

    My support for NIFLA’s suit weakens when it appears NIFLA’s allies trick women into coming into their facilities and then give them bogus, potentially harmful medical advice:

    Annie Filkowski went to a clinic because it advertised free pregnancy tests. She spent hours there before learning she was not pregnant, and when she then asked a counselor to write her a birth control prescription or give her advice on which method to use, she said the counselor told her, “Birth control causes infertility and can give you cancer” and other “crazy” things.

    Dartricia Walker said she went to a clinic for a pregnancy that she very much wanted. She mistakenly thought it was a medically licensed facility, and that the person who conducted the ultrasound was a nurse. Neither was true. She then had a miscarriage that a doctor later told her might have been avoided had she received adequate medical care [Totenberg, 2018.03.20].

    California’s compelled speech seeks to check such deception and false information. South Dakota’s compelled speech punishes Planned Parenthood for telling the truth.

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