Crisis Pregnancy Clinics and Free Speech Rights — The NIFLA Case

Scott Rae: Welcome to the podcast, Think Biblically: Conversations on Faith and Culture. I'm your host, Scott Rae, Dean of Faculty and Professor of Christian Ethics at Talbot School of Theology, Biola University.

Sean McDowell: And I'm your cohost Sean McDowell, Professor of Apologetics at Talbot School of Theology, Biola University.

Scott Rae: We're here today with a Political Science Professor at Biola University, Dr Scott Waller. Scott also serves as the Chair of Biola University's Religious Freedom taskforce. To talk about a couple of cases that were handed down, one in Canada and one in the United States, in the late spring, early summer of 2018. Scott, I think it's fair to say that this is a good news, bad news type of situation with these two cases. So let's take the good news first. What's commonly known as the NIFLA Case, short for the National Institutes of Family Life Advocacy. A case that was filed here in California, decided in June of 2018 by the United States Supreme Court.

Scott Rae: Tell our listeners first, what was this case about, and what specifically was NIFLA challenging about the law in California?

Scott Waller: Absolutely. Actually, this case involved a legal challenge to a piece of legislation that was passed by the California legislature, called the California Reproductive Freedom Accountability Comprehensive Care and Transparency Access. Since that's too long to-

Scott Rae: I was gonna say, could you make title a little longer?

Scott Waller: Yeah. It's actually shortened, called the FACT Act. And the acronym is an attempt to capture what the intent of, or at least the purported intent of this bill. The act was an attempt to regulate pro-life pregnancy centers, by forcing these licensed clinics to notify their female clients of what the state called a full range of free and low cost services, the state of California offered. And most controversially about this case, and the reason the suit was brought on, that these pro-life centers would paradoxically, and ironically, and in their view, not to their proclivities. These pro-life centers would have to notify their female clients and advertise abortion services. Which is the very services these clinics had a moral objection to in the first place.

Scott Waller: So the suit was brought when several clinics brought suit against the state of California, claiming that such regulation violated the First Amendment, free speech rights. And under the free speech rights in the first amendment, we have what's called freedom of association, that we're free to associate or not associate with a certain message. And the claim by these pro-life clinics, was that they were being forced to associate with a message that they didn't agree with. And the lower courts, prior to the US Supreme Court, actually ruled against these clinics. It gets a little wonky here, but it's an important point.

Scott Waller: They ruled against these clinics, ruling that since the speech involved here was in a professional context, it didn't enjoy the full protections of the First Amendment. That is a little bit of a wonky point, but it's a key point. So the rub of the case is whether the coercive power of the state could be used to compel speech, albeit within a professional context, that someone, or a group of people in these clinics disagreed with. And so it raised the question of whether individual speech, even in a professional setting, could be impinged upon constitutionally.

Scott Waller: So it raises the question, could these pro-life clinics be compelled to advertise for abortion services, which was the very practices that these clinics were devoted to opposing

Scott Rae: So in essence, the law was requiring these crisis pregnancy centers and pro-life clinics to basically say things that they had a moral, and in some cases a religious objection to.

Scott Waller: That's correct. And though the case was largely centered around free speech rights, which is an element of the first amendment, there was special cognizance taken of the fact that the majority of these voices that were implicated by the FACT Act, were in fact religious voices. One judge in particularly, Justice Kennedy, took particular cognizance of that.

Scott Rae: So, both the right of free expression and religious liberty were at stake in this case?

Scott Waller: Definitely. The right of free speech was on the forefront. And on the back burner, particularly in the concurring opinion, Justice Kennedy made careful note that the ... and even justice Thomas in his majority opinion, took very careful cognizance of a kind of curious spectrum of places that would be implicated by this FACT Act. And they all seem to be religiously motivated, pro-life crisis pregnancy centers.

Scott Rae: Okay. So Scott, what was the court's decision, and summarize their rationale for our listeners?

Scott Waller: Sure. Well, the first thing to point out, was the decision was a narrow 5/4 decision. A victory is a victory, but of course a 5/4 decision is as narrow as it gets. And as I'm want to tell people, and I repeat this, our former president, Barack Obama, was fond of saying this, elections have consequences. And it's likely that if Neil Gorsuch, President Trump's placement on the court had not been on the court instead of nominee of Mrs Clinton, Hillary Clinton's liking, case likely would have been a 5/4 decision in the other direction.

Scott Waller: But that said, the court in a narrow 5/4 ruling ruled that the FACT Act, which required pro-life clinics to disseminate information about abortion services, did in fact violate their first amendment freedoms. The court ruled that it was an unconstitutional, what's called content based form of regulation, on speech which compelled these clinics to speak a particular message. And the court raises this question, how could these clinics be expected to exercise their free speech rights, to try to dissuade women to have abortions. While the same time being required to inform them about abortion services?

Scott Waller: And the fact that the speech was labeled professional speech, didn't save the regulation. In fact, what might be more good news coming from this case, was that Justice Thomas was very careful in his opinion, and his words and his ruling regarding professional speech, and the protections that the high courts believed it had, were higher than what the state of California was claiming. Here's Justice Thomas on this.

Justice Thomas: But this court has not recognized professional speech as a separate category of speech. Speech is not unprotected merely because it is uttered by professionals. This court has been reluctant to mark off new categories of speech for diminished constitutional protection. The dangers associated with content based regulation of speech, are also present in the context of professional speech. As with other kinds of speech regulating the context of professional speech poses the inherent risk that government seeks not to advance a legitimate regulatory goal, but merely to suppress unpopular ideas.

Scott Waller: So Thomas was really onto something here, in terms of his push back against the state of California's claim that professional speech could be regulated differently than individual speech. And he was worried that if the FACT Act was left to stand, then the government would be free to regulate unpopular ideas, simply by demanding a state licensing requirement and putting the speech in the category of professional speech.

Sean McDowell: That's a very welcome and important decision to statement for him to make, for the sake of free speech in our country. Let me ask you this question. One of the dissenting opinions was, people in favor of pro-choice such as planned parenthood or whatever, will recommend adoption. So out of equality, why shouldn't pregnancy resources be forced to at least recommend abortion? They made an argument for equality from that. What would your pushback on that be?

Scott Waller: Well, I think the pushback would be that, perhaps there is no moral or religious objection, freedom of conscience, that these pro-abortion services would have to advertise for adoption. But the analogy is not good because on the flip side, these pro-life pregnancy centers largely motivated by, in many cases, religious impetus, do in fact have protections of the First Amendment, namely the free exercise of religion. And the constitution particularly protects that right. Whereas it doesn't protect other rights ,perhaps the pro abortion services. people might have a moral qualms of some sort about offering adoption services, but they're not generated out of religion.

Sean McDowell: That's a great distinction, because by definition pro-choice means you should be in favor of a woman having the right to choose or not choose. But pro-life, you believe deeply in the sanctity of life. Now that's why your response, why it surprised me that the decision was five to four. Some decisions I understand that people disagree with. It felt to me like this should have been nine to zero. I'm curious, what do you make of the fact that it was so close, either just legally, or morally, or where we're at in our culture, that this decision was merely five to four?

Scott Waller: I think the answer to that, Sean, is the fact that there are four justices on the supreme court that revealed that there are so committed to the abortion enterprise and its protection, that they're willing to sacrifice free speech rights in order to have those services, if you wanted to call it that, be unfettered in places like the state of California. So it was really revealing that this service, if you want to call it, is such a germane name. This service is so sacrosanct in the minds of these liberal justices on the court, that they would be willing to sacrifice, and intrude upon the free speech rights of organizations or individuals to make sure that ride goes forward in an unfettered sense.

Scott Waller: There doesn't seem to be in the minds of these people any kind of moral distinction or moral problems to this practice. It's almost a, I think in their minds, to having a moral objection to one having an appendectomy. What's the problem? Why should we fetter people's liberty choices in any kind of way? And this played into this case, I believe.

Scott Rae: Scott, a lot of folks have suggested that this decision might have pretty far reaching implications for other cases that come up in the future, that has to do with religious freedom and free expression. How do you think this decision will impact other religious freedom free expression cases that will come up in the future?

Scott Waller: Well, you raised some important points with those questions here. You're right. And the ruling in this case was on the correct understanding of the constitutional protections of speech and association. And Justice Thomas, as I said, took careful cognizance of the fact that pro-life pregnancy centers seem to be the target of this regulation, and that many of these pro-life pregnancy centers were Christian belief based ones. In fact, he noted that the FACT Act covered a "curiously narrow set of speakers". In other words, it seemed targeted toward them.

Scott Waller: So in this way, given the religiously motivated origins of these clinics, Justice Thomas found it troubling, and implied that a reasonable person can conclude that these clinics were specifically targeted because of their religious motivations. So had this decision gone the other way, it would seem to imply that the state was free to target and regulate a view on an issue, that the state simply found objectionable. Even if that view was generated out of the free exercise of religion. And Justice Kennedy to your point, in his concurring opinion was particularly interested in pointing out that the FACT Act was a form of viewpoint discrimination.

Scott Waller: Something that he thought was a matter of really serious constitutional concern, because it seemed to be particularly targeting of religious voice in the state. While it was may not perhaps the preferred message, or the state endorsed message, it's still deserved constitutional protections nonetheless. And so Kennedy's rather short opinion maybe in hindsight, or his concurring opinion. His short opinion may be what scholars are pointing to in the future, in terms of this.

Scott Waller: He says, "This law is a paradigmatic example of the serious that 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. And this compels individuals to contradict their most deeply held religious beliefs. Grounded in basic philosophical, ethical, or religious precepts. All of the history of the acts passage, and it's under inclusive application suggests the real possibility that these individuals were targeted because of their beliefs."

Scott Waller: And that's really getting back to Sean's question, in terms of why the analogy that the state made was not a good analogy. Because these pro-life pregnancy centers have a special measure of protection, that the founders instilled in the first amendment.

Scott Rae: So, Scott, in your view, is this as good news for religious freedom and free expression as it appears to be?

Scott Waller: It very well could be. In fact, and this sort of implicates the other case that we're talking about, the Trinity Law School case. In the aftermath of this case, legal analysts largely who saw this decision in a favorable light, in the aftermath of the NIFLA case, have been quick to camp on Justice Thomas's words about this professional speech stuff. In fact, when you read the case closely and you look at the language in the case law that Thomas Sites, it seems that he may have had some other kind of kind of contemporary legislation in mind, that's making its way through various states in terms of sexual orientation change laws.

Scott Waller: The Sochi laws, as they are called, have been past in various states. And they've been passed under consumer fraud or consumer protection. And putting them therefore, not only in the classification of professional speech, which we've already covered that terrain where justice Thomas spoke to that. But lower courts have been asserting that since it was professional speech, it doesn't enjoy the full protections of the first amendment. Thomas takes that on squarely and rejects out of hand. That might be the most favorable thing in terms of this case. So if NIFLA was good news, some people are arguing that there is more good news to follow in that regard.

Scott Rae: That's excellent. I'm glad to hear that. I think our listeners will find that to be pretty encouraging news. But now to the bad news on this, from our neighbors to the north. The Supreme Court of Canada ruled very differently in the case against Trinity Western Law School. They lost this case for accreditation, sued, and the Supreme Court of Canada ruled against them. What was their case about, and how was the court's ruling different?

Scott Waller: Well, as good of news as the combination NIFLA, the case, and the other case that came down this summer that implicated religious freedom, the Masterpiece Cake shop was for us. The Trinity Western Law School case was as bad of news for our Canadian brothers and sisters. This case involved Trinity Western University, a Christian Liberal Arts University, one of the very few private schools in the nation of Canada. And they were seeking to open a law school. And by the way, this university, a very distinguished institution, consistently ranked amongst the top two universities in Canada for exceptional experience by the National Survey of Student Engagement, is the only university in Canada to achieve an A plus rating in terms of the quality of education over the last seven years.

Scott Waller: And this too, this case was about associational rights. Trinity Western was one of the few private universities in this country. And they operate under what many religious institutions of higher learning operate under, a kind of community covenant. And this community covenant that was so controversial was, that students and staff and faculty, commit themselves under this covenant to refrain from sex outside of traditional marriage context. And so it raised this question in this case. Do Christians in Canada have associational rights to come together, and run their organization the way they want to?

Scott Waller: So students at this law school would have had, if this law school had been opened, would have had to abide by the university's community covenant regarding sexuality. It required students to abstain "from sexual intimacy that violates the sacredness of marriage between a man and a woman". And at issue here was the fact that, two law societies in British Columbia and Ontario denied this proposed law school any opportunity for accreditation because Trinity Western required that community covenant. And that's what generated the lawsuit.

Sean McDowell: I'm curious what you make of the 7/2 ruling. I was surprised at the 5/4 ruling in NIFLA. But then when I saw this case in Canada, I thought, wow, two people on the highest supreme court would be willing to defend the rights of a law school to operate according to its deepest convictions. What do you make culturally, or legally or just from a societal perspective, from a 7/2 ruling for where Canada is, and where the US may be in the future.

Scott Waller: The 7/2 decision hit the Canadians like a sledgehammer. A 5/4 decision in a direction, I guess one would solve your wounds by saying, well, we were close. But a 7/2 decision represents a kind of overwhelming view against religious free exercise in the nation of Canada. So it has hitten the Canadians particularly hard, and it really does set a kind of legal trajectory in the state that doesn't bode well for those who are seeking to live out the dictates of their faith in a public kind of way in Canada.

Scott Waller: The court cases that came down this summer in the US represented perhaps, though it's too early to tell, a kind of check on some things, That there was a kind of legal trajectory that had started in this country is as early as the late '80s, early 1990s. And we'd been on a kind of legal trajectory, in which there's been a collision course between newfound sexual liberties and rights associated around particularly homosexuality, and gay marriage and this kind of thing. And what seemed to be on a collision course with religious free exercise rights.

Scott Waller: It could be that the cases in the United States represent a kind of attempt by the court, to sort of balance these competing interests between sexual liberties and religious liberties. The Trinity Western case represents a kind of overwhelming defeat for religious liberty and in Canada.

Sean McDowell: Can you mention the rationale of this ruling, and maybe how it compared and contrasted with the NIFLA ruling in the states?

Scott Waller: Sure. Well, like the NIFLA case, this Canadian case was about the freedom of association. But since the school was overtly religious, free exercise rights of Canadians were even more and clearly in the spotlight in this case. So, in both cases, religious organizations were implicated. But unlike the NIFLA case here. in which the US Supreme Court was particularly worried about the intentional targeting of a religious voice, the Canadian Supreme Court was less bothered by that fact. The Canadian court ruled against the school, arguing that within the balance of interest in rights and play here, there were more fundamental and important rights to be considered than religious freedom rights of Trinity Western.

Scott Waller: So in the 7/2 decision, not surprisingly, these two lone dissenters focused on religious freedom. The majority focused on what they called equality of rights, and that is code for equality of outcome. And the majority spoke on the issue of harm. To not allow students, argued the majority, to live out their gay lifestyle would cause harm to their dignity. And that's a key word in this judicial discussion. It would cause harm to their dignity as human beings. And ironically, this is a similar movement that Justice Kennedy over the past 20 years has been making, in regards to references to human dignity.

Scott Waller: And so in this cite, for the Canadian court to embrace this kind of language of dignity law, represents a serious shift in the Canadian court to be seeing itself as an instrument of broad social reform. So equality rights, what the court called charter rights. They argued those actually trump religious free exercise rights in Canada, when religious is held out in a public kind of way. And sadly, this case represents a complete reversal of a decision from about 20 years ago, in which the Supreme Court ruled that Trinity Western could actually start a school of education, with similar commitments to community standards. So this a legal trajectory does not bode well for Canadians.

Sean McDowell: Scott, in the Obergefell case, Kennedy, who wrote the majority opinion legalizing same sex marriage across the United States, he did say that well meaning people might differ on this issue. And a lot of people, myself including, said, well that makes it at least different to a degree from issues of race. Because nobody would write in a supreme court ruling and say, yeah, it's okay to be a racist. And I thought, he's Kinda throwing a bone that there might be a reversal, or at least a balancing out of this kind of movement. And the trajectory you've described has been taking place since the 80s and 90s. Was there any kind of bone thrown in the Canadian rule? Whereas, essentially the idea that all holds barred is kind of out on religion, and this can be taken even further towards churches, and businesses and beyond?

Scott Waller: Not that I'm aware of. The paragraph that you refer to in the Obergefell decision at the time, was taken as a very small bone for a couple of reasons. One, it was only one paragraph, in a case that was obviously a landmark case, legalizing gay marriage for the first time in American history, the early reasons. The other reason it was seen as a small bone was that, the kind of language that Kennedy imposed there said that people are free to advocate and teach, but it didn't say live out or freely, publicly exercise their religious freedom. So there was quite a bit of pause and concern in the aftermath. But again, perhaps the NIFLA case, and Kennedy himself taking opportunity in a short but very pointed concurring opinion, seemed to expound upon and provide guidance to lower courts about religious free association rights.

Scott Waller: The Canadian court, on the other hand, actually went in the opposite direction. The court ruled that the community covenant would harm the dignity of LGTB law students. And that harm, they argued would be concrete and measurable. While the harm imposed on religious liberty here, was actually minimal. And more amazingly, the Canadian Supreme Court took it upon itself to decide what would be necessary for taking a law degree within a Christian context. It actually ruled that adhering to a common covenant regarding sexuality was not necessary. Here's the court's language. "A mandatory covenant is not absolutely required to study law in a Christian environment, in which people follow certain religious rules of conduct, or attending a Christian law school. While it may be preferred is not necessary.” So it's a pretty bleak picture when you start to look at the details of that case up there.

Scott Rae: Last year, the Court of Appeals in British Columbia actually ruled in favor of the school. There seemed to be a pretty encouraging development. I'm paraphrasing the language of the decision, but essentially they said, in a pluralistic culture, we have to allow people to live out their deepest convictions. On what basis did they rule in Trinity Western's favor? And this sounds like that the Supreme Court of Canada completely reversed that decision.

Scott Waller: No, that's right. In talking with some constitutional experts up there in Canada this summer, I was assured that Canada has a long history of valuing and protecting religious free exercise rights, as we do here in the United States. It was in light of that constitutional history, that those lower courts found that it was acceptable to have a covenant under religious under these religious freedom banners, and that it didn't violate the rights of LGBT students. The Canadian constitution is constructed in a certain way such that, what you would read first as you read down from say the top of the page, is actually more fundamental and more important.

Scott Waller: And so the lower courts argued that section 2(a) of the Canadian constitution enumerates the freedom of religion, and that there's a fundamental freedom associated with this. And these lower courts came to the conclusion that these were more fundamental rights than the so-called equality rights that the Canadian Supreme Court would point to. And therein lies the switch. The Supreme Court of Canada, in short, ruled against Trinity Western, because it argued that charter values understood as these equality of outcome rights trumped religious freedom. And Scott, I know you're familiar with this in your work with Roe V Wade, and those bioethical and legal issues associated with that.

Scott Waller: Like the infamous Roe V Wade case, which can't be understood in isolation, given the Doe V Bolton case that came down at on the same day. The same thing needs to be understood in light of Canada. There is a companion case that the Canadian Supreme Court recently ruled on called the Wall case. And so, the Canadian Supreme Court is actually speaking with a broader voice than even the Trinity Western case, it has to be understood in context with the Wall decision. The Wall case was actually a good decision by the Canadian Supreme Court.

Scott Waller: It involved, I won't get into the details, but in involved the Jehovah's Witness who had some kind of internal altercation within his denomination. The internal denomination ruled against him, and he appealed outside the denomination for have his case heard in secular courts. And the Canadian Supreme Court essentially said that this is an in-house manner, you will have to abide by the in-house decision to regulate your own affairs. But the Trinity Western case demonstrates that if religious believers want to act in the public square, then the government authorities can regulate your affairs.

Scott Waller: On internal issues, you do what you want. In the public, not so much. So the message seems clear in light of the voice that these two court cases represent up there in Canada. Religion is a privatized issue. It's equated increasingly with the mere freedom of worship. But once religion is exercised in the public square, it's a different story.

Sean McDowell: Hey Scott, let me ask you this last question. This has been so helpful, insightful, and we celebrate what's happened in the states, and we mourn this ruling in Canada. What can people listening just do about this? How can we make a difference even it's on a small scale?

Scott Waller: Well, certainly we can be praying. I mean, there had been amazing shifts in terms of legal trajectories on some issues that some of us could not have foreseen, even just a couple of years ago. And though we don't place our hope in politics or the judiciary ultimately, we are called to pray for rulers and pray for wisdom. That these people would see things, and that God may reveal things to them that otherwise they wouldn't. We certainly need to pray for our Canadian brothers and sisters who, in light of this ruling are pretty doggone dejected. I was speaking with some folks up there this summer, and they could sure use a dose of encouragement up there in light of this.

Scott Waller: There's a kind of retrenchment and stepping back to see what's next after this particular case. But Canadians have political rights, US citizens have political rights and I can assure you that the folks that I've talked to this summer are not going to develop a kind of attitude with sticking their head in the sand. These issues will be challenged and pushed, and their hope and expectation is that the Canadian Supreme Court will see things in a different light.

Sean McDowell: Scott, this has been really, really helpful. I thank you for coming on, for your clarity, for the conviction, but also just your compassion for all the people affected by how religious liberty law seemed to be changing quickly. Developing in directions we maybe wouldn't anticipate, and even hoped they would go. This has been excellent. Thank you Dr Scott Waller for coming on. We really appreciate your work.

Scott Waller: Well. It's been a delight guys. I really enjoyed doing this.

Sean McDowell: This has been an episode of the podcast Think Biblically: Conversations on Faith and Culture. To learn more about us and today's guest, Professor Scott Waller, and to find more episodes, go to Biola.edu/ThinkBiblically. That's Biola.edu/ThinkBiblically. If you enjoyed today's conversation give us a rating on your podcast app, and share it with a friend. Thanks for listening and remember, think biblically about everything.