By Chelsea Langston Bombino

On Tuesday, March 20, the U. S. Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra. The case concerns whether crisis pregnancy centers can be forced by California’s law, the Reproductive FACT Act , to advertise abortion to their patients.

According to this 2015 law, a licensed clinic providing medical services “whose primary purpose is providing family planning or pregnancy-related services” is required to provide information to all patients of free or low-cost family planning, prenatal and abortion services offered through the state. Some crisis pregnancy centers do qualify as licensed medical clinics, while others are unlicensed because they do not “have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services.”

Unlicensed CPCs are not obligated to disseminate information on abortion access, but instead must inform patients that “the facility is not licensed as a medical facility by the State of California.”

Facilitating abortion is antithetical to the very existence of crisis pregnancy centers (CPCs). CPCs are organizations, often faith-based, that help women to choose life for their unborn children. CPCs often also provide vulnerable women with material support, parenting education, spiritual guidance, referrals for social services and post-abortion counseling, among other services. Kristen Waggoner of Alliance Defending Freedom, a Christian law firm representing the crisis pregnancy centers in this case, emphasized the shared mission of CPCs when she told The Atlantic: “These centers are focused on helping women imagine what the choice of life would be like.”

Uncharted Territory: The Extra-Legal Impact of the California Crisis Pregnancy Case

Oral arguments from Tuesday, March 20th demonstrated that the state government of California law singled out CPCs and forced them to advertise services that go against the grain of their existence. Beyond that, this statute has resulted in missed opportunities for the state of California. The FACT Act is certainly interpreted by CPCs, if not the Supreme Court, as California acting in bad faith. Thus, California has missed the potential for innovative nonprofit/government partnerships that could have provided more women with the tools and resources to thrive — as parents, workers and members of their communities.

While there has been significant coverage of the oral arguments’ promising legal outcome for crisis pregnancy centers in California, there have been few questions raised about the non-legal impacts of this case. Ironically, crisis pregnancy centers have the potential to be important partners for the state of California, as they do in every state. CPCs serve thousands of women in California every year. The state government could have recognized the opportunity to cultivate voluntary partnerships with willing CPCs to support pregnant women in California through referrals to non-abortive public benefits/services such as prenatal care, access to supplemental nutrition assistance, housing support and access to the state’s paid family leave and/or temporary disability program. Now, however, because of the state’s action, crisis pregnancy centers are less likely to explore innovative partnerships to promote the quality of life for mothers and babies.

Supporting Crisis Pregnancy Centers Help California Meet Goals

The lawyers representing crisis pregnancy centers argued that the FACT Act violates the First Amendment’s free speech clause. As Michael Farris argued on behalf of the plaintiffs, only licensed centers were required to provide such notice to patients about abortion access: “The state then provided exemptions for all other medical providers who serve pregnant women. This law targets a particular topic of discussion, employs compelled speech and is directed at disfavored speakers with disfavored viewpoints.”

Farris went on to note that the law excludes doctors in private practice and general practice clinics even if they serve pregnant women. Farris argued that “through a clever series of legislative gerrymandering, the state has ended up with a result that only nonprofit pro-life pregnancy centers are required to post [information] the and the notice itself is biased.” In this context, gerrymandering refers to crafting a law so that it unfairly targets a certain group, like CPCs.

Justice Kagan echoed this sentiment in her questions to the respondent, Joshua Klein, the deputy state solicitor general who argued for California during oral arguments. She acknowledged that when one looks at this law “there is a question that arises as to whether this statute has been gerrymandered.”

Justice Kagan also inquired about certain exemptions in the FACT Act. When she asked the respondent to describe the problem the statute was trying to address, Mr. Klein explained that the goal of the law was to address the inadequacy of public relations campaigns in reaching low income, pregnant women about the pregnancy care options available to them through the state: “That’s why it’s targeted at free clinics.”

Justice Kagan continued to press Klein, asking whether the statue was supposed to address the limited information given to pregnant women regarding their options or prevent crisis pregnancy centers from giving misleading information about pregnant women’s available options.

Klein responded that it was the first kind of statute. Yet Justice Gorsuch then indicated that if the law really was about ensuring women have the information they need to know all their options, asking “Why should the state freeride on a limited number of clinics to provide that information?”

By the time oral arguments ended, it was clear that the FACT Act faced an uncertain future, not only with the traditionally conservative justices, but also with Justices Kagan, Kennedy and possibly even Ginsberg. A large part of these oral arguments focused on how the FACT Act appeared to single out crisis pregnancy centers, known for their religious, pro-life missions, and force them to provide information to their patients about the very thing they were trying to prevent.

California’s Lost Opportunity to Support Vulnerable Women and Families

The FACT Act did get one thing right. It recognized the vital role crisis pregnancy centers play in serving some of the most vulnerable women in California. According to the state of California’s own lawyer in oral arguments, this statute was passed because the California legislature recognized the potential and capacity for these nonprofit community clinics to reach low income women better than the state itself had been able to do through publicity campaigns.

Unfortunately, that is all the FACT Act got right. Rather than recognizing crisis pregnancy clinics as having a unique and vital role to play in reaching California’s most vulnerable women because of their noncommercial, nonprofit and nongovernmental status, the law tried to turn these clinics into mouthpieces for the government.

Pamela Palumbo, CEO of Pregnancy Clinic Ministry in Maryland, stated: “For the most part, the general public doesn’t realize the large impact of free services that crisis pregnancy centers offer that come at no cost to the government. For many pregnancy clinics, if we were forced to advertise for abortions, we would have hard decisions to make between advertising abortions and continuing to serve the unique needs of our communities.”

The real shame here is that, abortion policy aside, California state law does some admirable work in providing vulnerable women and families with resources to thrive. In this way, the state of California shares a value in common with CPCs: supporting women through their pregnancies and early parenthood.

For example, as NPR recently reported, many crisis pregnancy centers “rely on Medicaid as a tool for helping low-income pregnant women.” According to NPR’s report, low-income women are often unaware that, if they qualify for Medicaid, they can receive free prenatal and delivery care. According to one CPC director NPR interviewed: “[I’ve] seen several women decide to continue their pregnancies after learning that their medical care would be provided [through Medicaid].”

The NPR piece also captured a relatively common sentiment from crisis pregnancy center supporters — that government is unhelpful, wasteful and unnecessary in this space. Unfortunately, when governments like the California legislature take actions to compel speech from pro-life, religious pregnancy centers against their mission and conscience, then it is difficult to make the case to these CPCs that there is any possibility of mutual cooperation between them and government entities to support women and their babies.

This is a shame because there are certain laws in California that do aim to support pregnant women. For example, as of January 1, 2018, under the New Parent Leave Act in California, employees and employers with 20 or more employees within 75 miles will be eligible for job protected bonding time. Also starting in 2018, wage replacement rates increased under State Disability Insurance and Paid Family Leave to either 60 percent or 70 percent, depending on income.

Crisis pregnancy centers could have been considered a potential partner in the voluntary distribution of important legal information such as state employment laws on pregnancy and breastfeeding accommodations, paid time off and temporary disability.

Legal Aid at Work is one California nonprofit partnering with medical providers to ensure that pregnancy patients receive such vital information. In describing this innovative nonprofit-county government partnership, Skadden Fellow Katie Wutchiett writes: “The medical legal partnership (“MLP”) approach allows for early intervention at the moment employment concerns arise, rather than waiting until after a woman already has lost her job and suffered devastating consequences to her wellbeing and financial security.”

Crisis pregnancy centers may have been, and may still be, a natural mission-fit for this type of partnership that would provide vulnerable pregnant women access to more resources and potentially more economic agency. In turn, these partnerships can empower women to negotiate on-the-job accommodations that allow them to remain employed and make them more likely to consider keeping their babies.

One question still remains: Has the state California, through the actions of its legislature, lost the opportunity to partner with in CPCs in supporting healthy pregnancies, healthy babies and healthy families? I would say yes, except for the fact that CPCs are largely faith-based, and where there is faith, nothing is impossible. Like the staff of CPCs who provide hope to so many weary women, we too must not give up hope that the state of California recognizes the importance of protecting these unique organizations that serve the least among us.