Constitution Triumphs Over Becerra, the FACT Act and NARAL

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A conservative Latino’s view on politics…

People, regardless of ideology and political party, we must realize, we need constitutional judges because they look at the Constitution to direct them on the law. Constitutional judges protect all ideological sides. When a court like the Ninth Circuit of Appeals rules with feelings, emotions, and ideology, it may be popular, but likely suppresses individual rights. Which brings us to the Supreme Court of the United States (SCOTUS) and National Institute of Family and Life Advocates v. Becerra. This is a tale of morally corrupt groups and individuals overreaching and oppressing First Amendment rights. It includes the California Democrat Party, the Democrat-controlled legislature, Attorney General Xavier Becerra and Governor Jerry Brown. With help from NARAL, a pro-abortion rights group who helped sponsor the bill at the center of the case.

Constitution Challenged: Assembly Bill 775 Reproductive FACT Act

The far left forcing their will on pro-life clinics – called crisis pregnancy centers (CPC) – appropriated their First Amendment rights. Their weapon of choice? Assembly Bill 775 Reproductive FACT Act, created and signed into law by Governor Brown Oct. 09, 2015. Supporters of AB-775 will have you believe the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act is an abortion issue… they’re lying. It’s a First Amendment issue but by controlling the narrative, they can control the message and use that as a weapon itself, courtesy of the mainstream media (MSM).

The issue’s free speech and the unconstitutionality of the state to force someone to do something they do not believe. It’s also a “cumbersome” law to limit and take over the crisis pregnancy center’s marketing and advertising message. Don’t believe me? Let me explain.

Let’s take the example of a billboard, as given by Justice Clarence Thomas. In the majority opinion, he said,

“As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message.”

As you can see in his example, it’s gone from promoting the clinic’s services to promoting the state’s message at no cost to the state! Purposely done this way by Democrats achieve the following:

  1. take over the clinic’s message thus promoting the abortion lobby using their competitor’s money.
  2. make the clinic think twice about moving forward to advertise their services, thus fulfilling NARAL’s goal.

National Institute of Family and Life Advocates v. Becerra

From the get-go, the National Institute of Family (NIFLA) took the fight up, recognizing the injustice and the “Orwellian” path the Democrat-controlled California state legislature was on. They knew if not stopped, this was just the beginning. If successful, states would force unnecessary licensing of other industries to regulate, then suppress First Amendment rights to control them. Notching loss after loss, the Ninth Circuit – as expected – upheld California’s suppression of First Amendment rights. As hoped, SCOTUS decided it would hear National Institute of Family and Life Advocates v. Becerra. Those, closely watching were states with similar laws – Hawaii and Illinois and others. All hoping SCOTUS would align with Becerra to continue or re-establish their subjugation of First Amendment rights. The topic was pro-life clinics, again, this wasn’t about abortion. If upheld, states would extend the oppression of First Amendment rights into as many industries as possible.

Crisis Pregnancy Centers 

Nonprofit Crisis pregnancy centers or pregnancy resource centers, guide or counsel women on alternatives to abortion. Most CPC do not gain financially, that is, profit from the women they offer services to. In contrast to abortion clinics, such as Planned Parenthood that sells baby parts for profit. The fear of abortion clinics is simple – most CPC agencies tell the truth. That includes stating they won’t provide information on abortions. They don’t hide it or do anything to lie about it – they simply let the women know they won’t provide information on it. They believe there are alternatives to abortion. That’s what pro-abortion clinics fear – a woman realizing there are alternatives to abortion and even worse, depriving the Planned Parenthoods of the world of profiting off abortions. Don’t believe me? Check this out – The Center for Medical Progress’ expose of Planned Parenthood.

Pro-abortion groups such as NARAL falsely label CPC as “fake clinics” and have one of two goals. With Democrat Party help, to shut them down or control and limit them. The term they use for CPC, “fake clinics” isn’t factual. They say this because they believe they’re the only authority allowed to talk on women’s reproductive rights and that abortion as the best and only viable choice. AB-775 was an ingenious way to checkmate CPC.

AB-775 Specifics

AB-775 forced CPC clinics to post the following notice:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

AB-775 forced licensed CPC to do the following:

  • Public notice in a “conspicuous” place at least 8.5 inches by 11 inches and at least 22-point type.
  • A printed notice is given to “clients” in at least 14-point.
  • A digital notice at check-in or arrival.

AB-775 forced unlicensed CPC to also post the following:

“This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

  • In print and digital format and posted on their websites.
  • In English and other languages (up to 13 sometimes).
  • In at least 8.5 inches by 11 inches and at least 48-point type.
  • Must post “conspicuously” at the entrance
  • Must post it where “clients” wait to receive services (waiting room).
  • Must be “clear and conspicuous.”

Clear and Conspicuous

“Clear and conspicuous” as written in AB-775:

“The notice in the advertising material shall be clear and conspicuous. “Clear and conspicuous” means in larger point type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.”

California was mandating their message to have greater prominence than the CPC’s own message. Again, the term “Orwellian,” comes to mind. If not done, CPC clinics would be subject to $500 fines for the first offense and $1,000 every resulting offense. Think. If a CPC didn’t provide free advertisement for the state’s abortion services – something they don’t believe in – they’d pay a fine, over and over and over. A violation of First Amendment rights.

Professional Speech and the Constitution

There’s something known as “professional speech” – think the medical or legal field – and it’s regulated, ranging from licensing, advertising and marketing and more. However, states like California push the envelope by violating First Amendment rights through regulation of what professionals can say to their clients. The question became, can California force a CPC to speak on abortion, which they don’t believe in and goes against their beliefs? The lower courts agreed California’s law of “professional speech,” is allowable in limiting First Amendment rights. Thus, the importance for SCOTUS to comment on a rarely heard argument.

Some on SCOTUS didn’t like what the lower courts were agreeing with. Justice Clarence Thomas states, “Speech is not unprotected merely because it is uttered by professionals.” A crushing blow to leftists and those who would restrict First Amendment rights.

The other issue assumed by the lower courts – with government licensing authority there’s implicit power to regulate “professional speech.” “Danger, Will Robinson!” That’s scary because states could just force licensing on an industry to subdue First Amendment rights by claiming they have the power to regulate “professional speech.” It’s a way around First Amendment rights and Justice Thomas properly recognized this.

Professional Speech and the First Amendment

In Professional Speech and the First Amendment, First Amendment scholar Rodney A. Smolla surmises.

“The First Amendment is grounded in the premise that the marketplace is the better regulator of expressive activity than government. There are powerful cultural forces at work within professions that encourage professionals to act ethically and within professional norms. When professionals violate hardline rules of professional conduct, disciplinary bodies and courts may intervene, and such interventions will typically withstand any First Amendment challenge, even when subjected to strict scrutiny review.”

In other words, we can decide right from wrong and there are consequences that won’t infringe on the First Amendment. California’s reasoning for regulating “professional speech?” It tried justifying and claiming it had to do this because its own advertising and marketing efforts weren’t getting the job done. Justice Thomas, using common sense realized, maybe there’s not a “want” for this or California didn’t “pony up” and properly fund their marketing and advertising.

Because it’s government and not a business, California, instead of realizing they needed to do a better job of market analysis to find out how to promote their services, chose to abuse its authority. It decided to subjugate First Amendment rights to deliver the state’s message. Justice Thomas was spot on in the opinion, writing, “Either way, California cannot co-opt the licensed facilities to deliver its message for it.” Going on, he also said, “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.” A huge blow to the authoritative government and win for every individual, regardless of ideology or political affiliation.

Overly or Unduly Burdensome

Burdensome is something that’s too difficult to do. Justice Thomas’ billboard example clearly proves “overly burdensome” by showing how the state was forcing CPC to “call to attention” the state’s message over their own. While that example hits the mark, Justice Thomas’ following statement will make you recoil with a shudder at what the California, Democrat-controlled legislature was doing. Thomas said, “It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”

Viewpoint Discrimination

Viewpoint discrimination” is when the state takes a side in a “particular view.” If you do an internet search, the most recent example of “viewpoint discrimination” you’ll remember is Chick-fil-A. Remember, when Boston and other leftist bastions (Chicago and San Francisco) said they wouldn’t allow Chick-fil-A to come into their cities because their owner supported traditional marriage? In this case, Chick-fil-A CEO’s comments on traditional marriage did not discriminate or create an unlawful offense but merely stated a belief. Because government (Boston mayor) disagreed with a different view than theirs and was going to act against Chick-fil-A made it “viewpoint discrimination.” Under the First Amendment “viewpoint discrimination” is illegal when applied by government.

Leftist darling, Justice Anthony Kennedy gave California, Democrats, and Unions the first of two smackdowns – the other being Janus v. AFSCME – in ruling with the Constitution.

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

Kennedy left no room for misinterpretation. Using the Constitution like a dagger to strike at the heart of evil, he further stated, “For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”

Kennedy rightfully knew, forcing the state’s message on “crisis pregnancy centers,” while excluding organizations such as pro-abortion “family planning centers” was clearly “viewpoint discrimination.”

The Constitution Triumphs and Aftermath 

SCOTUS followed the Constitution and once again protected our First Amendment rights from those who would seize and subjugate them. NIFLA overcame NARAL’s bullying, an authoritative California Democrat legislature, a corrupt Attorney General Xavier Becerra and a morally-challenged would be king, Governor Jerry Brown. It couldn’t be clearer for SCOTUS to follow the Constitution and protect our First Amendment rights.

The major issues were easily proven:

  • Professional Speech.
  • Overly Burdensome.
  • Viewpoint discrimination.

It was no surprise it was a 5-4 decision with the pro-abortion Justices – who’ve never seen a coat hanger they didn’t like – ignoring the Constitution and voting against our First Amendment rights. While dissenting they did recognize the three major issues. However, as is typical of them, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan showed they don’t care about the Constitution. They rule on ideology.

Justice Kennedy said it best in responding to California’s arrogance.

“The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But 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.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

The Constitution protects all Americans. All ideologies. Liberals, conservatives, all political parties and religions living in these United States of America, including those who believe in pro-life and pro-abortion. As history shows, ideological power constantly shifts and the only steadfast hand during turbulent times is the Constitution.

National Institute of Family and Life Advocates v. Becerra now goes back to the lower court with NIFLA expected to prevail because of SCOTUS. There’re many key takeaways, but this case shows why we need constitutional and not activist judges on the bench. That is to make sure our laws follow the Constitution.

This article originally appeared in RightOnDaily.com, July 26, 2018.

William Del Pilar is politically active, currently sitting on the Valley Center Community Planning Group (VCCPG). As an entrepreneur, Del Pilar drove his fantasy sports company to set the standard for analysis and news distribution, helping to commercialize the industry from 1997-2008. Del Pilar sat on the boards of the Fantasy Sports Trade Association (FSTA) and Fantasy Sports Ventures (now owned by Gannett Co., Inc.).

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