Liberal Supreme Court Justice Elena Kagan cast doubt on the constitutionality of a California law forcing pro-life clinics to promote abortions in their facilities.
During oral arguments on Tuesday at the high court, Kagan said the Reproductive FACT Act — signed into law by Gov. Jerry Brown in 2015 — looked “gerrymandered” to target pro-life crisis pregnancy centers and the conservative majority, and other liberal justices appeared to agree.
Some of these Christian-based facilities brought suit against the state of California in National Institute of Family and Life Advocates v. Becerra, saying the new law violates their First Amendment free speech rights.
The FACT Act requires pregnancy counseling clinics to post notices that patients might be eligible for free or discounted abortions
The law appeared to be directed at facilities that morally disagree with abortion.
“If it has been gerrymandered, that’s a serious issue,” said Kagan, who was appointed by President Barack Obama to the Supreme Court in 2010.
The Associated Press reported that the court — including other liberal justices — was “skeptical” about the FACT Act.
The conservative 5-4 majority “signaled sympathy toward the Christian-based facilities,” according to the AP.
“Even some of the liberal justices voiced concern over parts of the law during an hour-long argument in an appeal by a group of non-profit facilities called crisis pregnancy centers of a lower court ruling upholding the Democratic-backed 2015 law,” the news organization added.
California Deputy Solicitor General Joshua A. Klein said during oral arguments his state was only “promoting informed choice” for pregnant women, The Washington Post reported.
Alliance Defending Freedom President Michael Farris — who is representing the pro-life facilities — said the law violates the First Amendment by targeting “disfavored speakers.”
The pro-life group Susan B. Anthony List was heartened by what happened at the Supreme Court on Tuesday.
“It was encouraging to see that most if not all of the Justices recognized that the California Act targeted ProLife pregnancy centers,” attorney Dorinda Bordlee said in a statement to The Western Journal. Bordlee is senior counsel with the Bioethics Defense Fund, which filed a brief in the case on behalf of the Susan B. Anthony List.
“Justice Kennedy observed that the law created an ‘undue burden’ that justifies it being invalidated,” Bordlee continued. “And Justice Kagan could not seem to get a coherent answer from the California counsel on why the state ‘gerrymandered’ the ProLife pregnancy centers without requiring other health centers to post the free abortion notice.”
Americans United For Life President Catherine Glenn Foster shared these views telling WJ, “The California law at issue in this case is gerrymandered on its face because its exceptions exclude all facilities except pro-life pregnancy care centers.”
She added, “Justice Kennedy’s response was emphatic: ‘I don’t need a [trial] to tell me what a billboard is.’”
Both pro-life and pro-abortion rights groups demonstrated outside the Supreme Court during oral arguments.
NARAL Pro-Choice America tweeted, “All women, regardless of income or location, should be able to access the pregnancy care they choose, free from coercion or shame. We trust women to make the best decisions about their health.”
Farris told LifeSite News after the oral arguments: “Today, before the United States Supreme Court justices, I argued on behalf of the National Institute of Family and Life Advocates that the California law forcing pro-life pregnancy centers to advertise for abortions is unlawful government-compelled expression.”
He continued, “A government that tells you what you can’t say is dangerous, but a government that tells you what you must say — under threat of severe punishment — is alarming.”
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