Chelsea Langston

On the last day of 2015, the Ninth Circuit Court of Appeals declined to enjoin a recently passed California state statute called the Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act that mandates that all “licensed covered facilities,” including pregnancy centers, even faith-based pregnancy programs, to educate services recipients about state-subsidized abortion and contraceptive resources. Specifically, the new law, which went into effect the next day, requires all pregnancy centers to “disseminate to clients on site a notice indicating that the State of California provides free or low-income access to comprehensive family planning services, prenatal care, and abortion for all eligible women.” Pregnancy centers that violate the statute face first-time financial penalties of $500, and a $1,000 fine for subsequent violations of the law.

In October, 2015, the American Center for Law and Justice and the Pacific Justice Institute filed lawsuits on behalf of six faith-based pregnancy centers. The centers argued that forcing them to provide information about free, state-provided abortions would deeply violate their foundational faith-saturated missions. Beyond that, it would contravene and undermine their specific, faith-shaped, reasons for existence: “to help women with unplanned pregnancies meet and accept the stress and challenges that come with unplanned pregnancies … and to minister in the name of Jesus Christ to women and men facing unplanned pregnancies by providing support and medical services to them that will empower them to make healthy life choices.”

In December, 2015, a federal judge found that the Reproductive FACT Act did not violate the Christian pregnancy centers’ Constitutional rights. “The disclosures do not include language endorsing or recommending such services,” U.S. District Judge Jeffery Write stated. “Rather, the mandated notice only notifies consumers of the existence of state-funded options.”

After that ruling, the centers appealed the decision to the Ninth Circuit appeals court and also asked that the law be enjoined from going into effect until their appeal was settled. The plaintiffs noted that if the Ninth Circuit failed to provide for such relief, the centers would be required to provide information “wholly contrary to their religious beliefs, identities, and mission.”

Unfortunately, the Ninth Circuit refused to stop the Reproductive FACT Act from going into effect. Similarly, the request made by the Pacific Institute for a preliminary injunction was denied on December 21, 2015, by U.S District Judge Kimberly Mueller. Judge Mueller stated: “Though the public interest favors upholding the First Amendment, the public interest also favors ensuring California women are fully informed as to their reproductive healthcare options.”

This case and the judges’ comments call to mind the Supreme Court’s ruling in Hobby Lobby. Even if one accepts that the state government of California has a strong interest in informing women of the reproductive health resources available to them, forcing faith-based, pro-life pregnancy centers to be the third-party providers of this information is not the most effective, not the least restrictive, means of achieving this goal. As the Court ruled in Hobby Lobby: “The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.”

If this Hobby Lobby reasoning is applied to the case of these faith-based pregnancy centers in California, surely the courts would have to acknowledge that the new law substantially burdens the exercise of religious freedom by these pregnancy centers by forcing them to be the government’s mouthpiece for free abortions. Moreover, there surely must be more direct and efficient means for the state of California to achieve its interests in providing women with information about state-funded contraception and abortion services. The state could launch a public education campaign directly, or partner with secular organizations whose missions align with the state’s objectives, or partner with public schools and secular community colleges to provide this information to young women.

Unfortunately, the faith-based pregnancy center cases are being decided under a rational basis standard, placing a very low burden on the state to prove that this law was neutral and generally applicable, and that the law is rationally related to a legitimate government interest. The resulting judicial rulings should be disquieting, however, not just for staunch prolife advocates, but for anyone who holds freedom of speech and freedom of religion dear as fundamental American rights. “This ruling should alarm everyone who believes in a robust First Amendment,” stated Pacific Institute president Brad Dacus. “The notion that the government can compel religious non-profits to promote practices antithetical to their values is chilling.”

The Reproductive FACT Act violates not only the constitutional 1^st Amendment rights of faith-based centers, it undermines the bedrock American values of promoting diverse civil society organizations to meet the diverse needs of a varied citizenship. One does not have to espouse pro-life values to value the institutional diversity essential to a democratic, pluralistic society. In America, everyone can seek social services that meet their particular needs. A wide array of nonprofits exists to cater to the specific cultural, linguistic, ethnic, and spiritual contexts of a diverse populace. In California alone, nonprofits serving diverse and specific populations in distinctive ways include the Asian Pacific Islander Legal Outreach, Catholic Charities of Las Angeles Immigration Services, ACCESS California Services (Serving Arab and Muslim-American Communities), and Black Girls CODE, to name just a few.

The recently enacted California statue denies faith-based prolife pregnancy centers the capacity to serve young women who wish to seek prenatal care, adoption resources, family counseling, baby supplies, and so much more in an environment that aligns with their own faiths, ethics and/or values. Young women seeking out such centers should not be subjected to a government-mandated message about free abortion when they have sought out services that support parenting and adoption.

There are currently over 4,000 faith-based pregnancy centers in the United States. Clearly, these centers serve a palpable need for many women facing difficult circumstances. Not only that, faith-based pregnancy centers provide pregnant women and their families with distinctively faith-shaped services designed to meet their spiritual, mental health, physical health, and basic (food, clothing, shelter) needs from a Christ-informed perspective. These centers undoubtedly are not the right fit for all women who find themselves facing an unexpected pregnancy. There are many other options, especially in California, for women seeking other pregnancy-related services, or for women seeking secular pregnancy care. But for the thousands of women who are served by Christian pregnancy centers every year, denying the rights of these centers to operate in accordance with their faiths would ultimately mean denying the rights of these women to seek out and receive services in line with their spiritual values and physical needs.