☆ Prop 1 and pregnancy centers: Experts weigh in
Clocking in at 78 words, California’s proposed constitutional amendment has more than perplexed locals and advocacy orgs. Opp Now has led journalistic efforts to investigate what Prop 1 means for late-term abortion legislation. In this installment, local constitutional lawyers/orgs parse Prop 1’s implications for pregnancy resource centers (PRCs). An Opp Now exclusive.
Myron Steeves, Founder of Church Law Center, Dean Emeritus of Trinity Law School, Retired Professor of Constitutional Law:
In the most plain reading of the proposed amendment, PRCs will not be impacted by the new amendment if it is passed. That is, there’s nothing in this amendment that would mandate that a private party or tax-exempt organization must perform abortions. SCA 10 is focused on limiting state activity, not private activity. While there is an argument that tax exemption is a gift from the state, and therefore the state can make demands because of that generosity, that generally wouldn’t apply to a constitutional amendment that isn’t very clear on that point.
However, if any local pregnancy resource centers are receiving state subsidies, it is predictable that those who oppose these centers will argue that if a benefit is bestowed upon them by the state, that gives the state the right to mandate behaviors as a privilege of having a license to practice. That is likely be where the attack on PRCs will take place, although federal constitutional protection will likely provide a defense.
Executive Director of a California pregnancy clinic (anonymized by request):
I think our victory in 2018 at the Supreme Court level over The Reproductive FACT Act would offer protection for us. Likely, if California does pass SCA 10, it will also be contested in the courts.
Kevin McGary, Every Black Life Matters President, Frederick Douglass Foundation of California (FRED) Chairman:
I think that’s exactly why SCA 10 is stated the way it is. It’s designed to undermine the primary role of PRCs and to encourage unlimited abortion—anytime, anywhere—which includes forcing all agencies to take that position.
Margalynne Armstrong, Santa Clara University Associate Professor of Law:
I don't believe that SCA 10/Proposition 1 will compel anyone, including PRCs, to provide referrals to abortion providers, and certainly would not compel a PRC to perform an abortion (my understanding is that PRCs typically do not directly provide medical services). In 2018, the U.S. Supreme Court found that California's FACT Act, requiring crisis pregnancy centers to more fully disclose what they actually were to clients, was most likely unconstitutional and sent the case back to the lower court to fully adjudicate the issues. The California law also tried to require licensed clinics that did not provide a full range of reproductive services centers to post a sign about the availability of state free or low cost access to prenatal care, birth control, and abortion. The FACT Act raised SCOTUS concerns about state infringement of free speech (National Institute of Family & Life Advocates v. Becerra). Thus, I don't believe that SCA 10/Prop 1 will compel abortion referrals by PRCS due to First Amendment protections.
Neil Mammen, President of the Values Advocacy Council in San Jose, California, Every Black Life Matters Cofounder:
I’m sure they’ll try that in California, as they’re always attempting to shut down PRCs. It’s ironic because they preach choice, so why not offer a choice that isn’t abortion? In reality, they want abortion. They want to eliminate the dissenting opinion.
However, I don’t think CA can win that case long term. It would go all the way to the Supreme Court. You really can’t force someone to provide a service that they don’t want to provide, given that withholding it isn’t illegal. For instance, I can’t go to a Mexican restaurant and compel them to give me Indian food.
Overall, I think SCA 10 could create a battle between pro-abortion activists and local PRCs, depending on how the PRCs respond. If the Christian pastors would stop being silent, we could change this state. God will hold them accountable.
Susan Swift Arnall, Right to Life League Esq., Vice President of Legal Affairs:
Abortion advocates already view pro-life clinics as fake and misleading, and many such as Senator Elizabeth Warren want them shut down as part of a targeted pro-choice campaign. That is absolutely clear from the legislation that they’ve advanced (AB 2586, among others) and press releases such as AG Rob Bonta’s recent Consumer Alert and Los Angeles City Attorney Mike Feuer’s proposed law targeting pro-life clinics.
I am concerned that Prop 1’s vague, broad language (saying the state shall not deny/interfere with a person’s right to abortion, perhaps stripping the court’s rights to have standing) may override the state’s existing conscience protection rights for PRCs. So, how a state court judge would interpret Prop 1 and changes to California's Health and Safety Code in light of federal conscience protections would be very interesting. Different courts might adjudicate that differently.
Going broader, we already have federal laws that protect against violation of conscience rights, like the Supreme Court case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In this case, a baker refused to make a wedding cake for an LGBT couple, and the Supreme Court said that the state was overstepping by trying to force the cake maker into doing that against their religious values. Another example is the National Institute of Family and Life Advocates (NIFLA) v. Becerra. The Supreme Court said that pro-life businesses can’t be mandated to advertise abortion services because employers and professionals have First Amendment rights just as individuals do.
Thus, an application of Prop 1 that would interfere with private employers’ religious rights may also violate the Free Exercise clause of the First Amendment. You can’t force people to say or do something against their religious beliefs.
I believe that if approved by voters, Prop 1 will face legal challenges on the basis of civil rights violations. It will be interesting to see if California decides that Prop 1 overrides individual conscience protections. I’m sure it’ll end up going through the district court and through the ninth circuit and hopefully to the Supreme Court to reaffirm our civil/federal rights.
The ultimate question remains: How will Prop 1 be invoked, if at all, to compel speech or acts? As with forcing a cake transaction, I don’t think compelling pro-life clinics, hospitals, or medical professionals to perform abortions will fly in a legal sense.
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This article is part of an exclusive Opp Now series. Local and national attorneys and advocacy organizations interpret SCA 10/Prop 1’s implications for late-term abortion legislation in the Golden State in several installments:
first (including SJ law professor, Right to Life of Central CA’s E.D., etc.),
second (including SJ-based Values Advocacy Council’s president, etc.),
third (including Pasadena constitutional attorney, Associate Counsel at the American Center for Law & Justice, etc.).
In the fourth series article, the Pro-Life Action League’s E.D. Eric Scheidler examines the Merc’s gauzy defense of this controversial amendment,
The fifth article continues highlighting perspectives on how the bill will inform late-term abortion law in the Golden State. It includes Visalia constitutional attorney, National Mobilization for Reproductive Justice in San Francisco, etc.
In the sixth article, locals/advocacy orgs parse the bill’s implications for pregnancy resource centers.