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Supreme Court to hear anti-abortion and free speech case: A breakdown of NIFLA v. Becerra

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In November, the Supreme Court agreed to hear a case on whether a California law passed in 2015, which requires anti-abortion pregnancy centers to inform clients about free or low-cost abortion services, is a violation of free speech.

Here’s what you need to know about National Institute of Family and Life Advocates v. Becerra before oral arguments are expected to begin on March 20. 

What does the California law say?

California’s Freedom, Accountability, Comprehensive Care and Transparency Act, more commonly known as the FACT Act, was passed in October 2015. It requires pregnancy facilities to post a disclosure to inform clients that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care and abortion for eligible women,” according to the law. It also requires unlicensed, non-medical facilities to inform clients that they are not licensed medical providers.

The public notice is required to be posted in a “conspicuous place” in the facility’s waiting room, and must be “8.5 inches by 11 inches and written in no less than 22-point type.” However, clinics can also choose to provide printed or digital notices to clients instead.

If pregnancy centers fail to comply with the law, they’re fined $500 for a first offense and $1,000 for each subsequent offense, according to the law.

What’s the rationale behind the law?

More than 700,000 California women become pregnant each year, and half of those pregnancies are unintended. Yet, “thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion or delivery,” California legislators argue.

“Because pregnancy decisions are time sensitive, and care early in pregnancy is important, California must supplement its own efforts to advise women of its reproductive health programs,” the law reads.

Low-income women can receive access to free or low-cost family planning services through California’s Medi-Cali and Family PACT programs. But only Medi-Cal providers who are enrolled in the Family PACT program can enroll patients at their health centers. That’s why legislators argue that the most effective way to ensure women in the state “quickly obtain the information and services they need to make and implement timely reproductive decisions,” according to the bill, is by requiring licensed health care facilities — regardless of their stance on abortion — to inform women of their options.

In addition, legislators argue it’s “vital” that pregnant women in the state know when they are receiving medical care from a licensed professional. This is addressed by the requirement that unlicensed facilities that “advertise and provide pregnancy testing” must disclose to clients that they are not licensed medical care providers.

This portion of the law is also targeted at religious pregnancy resource centers because many of them are not licensed medical facilities, supporters of the legislation say — adding that these facilities provide misleading information about the services they offer to women to deter them from getting an abortion.

What’s happened since the law was passed?

The legislation triggered lawsuits almost immediately after it was passed. One religious non-profit, the Scharpen Foundation, won its case against the state of California and will no longer have to adhere to the FACT Act. But other pro-life pregnancy centers have been widely unsuccessful in getting the law overturned, especially at a federal level.

The National Institute of Family and Life Advocates, commonly known by its acronym “NIFLA,” and the plaintiff in the Supreme Court case, sought a preliminary injunction to prohibit enforcement of the Reproductive FACT Act. NIFLA claimed that the law violated their First Amendment rights to free speech and free exercise of religion.

But the 9th Circuit Court of Appeals rejected both arguments and upheld the law — arguing that the state could regulate professional free speech and the law protects public health interests.

On Nov. 13, the Supreme Court granted “certiorari,” or a formal order, to only review NIFLA’s free speech argument.

What do opponents say?

NIFLA, which first filed a legal challenge to the FACT Act in 2016, is a public interest law firm that gives legal counsel and training to pregnancy centers across the country.

Roughly 135 pregnancy resource centers in California are members of NIFLA, Thomas Glessner, founder and president of the organization, told Fox News. With the Supreme Court case approved, this means that NIFLA will fight the law for each of its members collectively as opposed to each center individually fighting the law on its own.

“[The law] was a brilliant political move on their part,” Glessner said. “It mandates under law that the pro-life centers are advertising for abortion.”

But Glessner added that he thinks it’s “scandalous that the law allows a multimillion-dollar abortion industry to bully small non-profits.”

While the case is related to abortion, the real issue here, he said, is compelled speech — a form of speech that is presumably unconstitutional.

“Can the government impose and compel a faith-based ministry to proclaim a message that they are fundamentally opposed to with the risk of being fined or shut down?”

– Thomas Glessner

“Can the government impose and compel a faith-based ministry to proclaim a message that they are fundamentally opposed to with the risk of being fined or shut down?” he asked. “That’s the issue here.”

Glessner said he believes NIFLA, which will be represented in court by the Christian non-profit Alliance Defending Freedom (ADF), is “going to win going away,” adding that the Supreme Court “hates compelled speech, which is why I’m confident we’ll get the liberals on the court.”

In a statement to Fox News, Denise Harle, legal counsel for the ADF, said: “It is unjust for the government to force anyone to speak a message they disagree with — and to punish them if they don’t.” 

What do supporters say?

In a statement, California Attorney General Xavier Becerra vowed to uphold the law.

“Information is power, and all women should have access to the information they need when making personal health care decisions,” Becerra said. “The Reproductive FACT Act ensures that women in California receive accurate information about their health care options, including whether a facility is a licensed medical provider. The California Department of Justice will do everything necessary to protect women’s health care rights.”

The attorney general was not immediately available for additional comment when contacted by Fox News.

What will happen if NIFLA wins? What if they lose?  

The Supreme Court is intervening to regulate these types of laws and provide a sense of consistency.

Indeed, other courts in states like New York, Texas and Maryland have invalidated laws that were similar to California’s FACT Act. But some states — such as Hawaii and Illinois — currently have similar laws in place, which, like in California, have also led to appeals and other lawsuits. Specifically in Hawaii, Glessner said, one of the pregnancy resource centers is located in a church.

“If we win California, that should take care of Hawaii,” he said.

It’s hard to speculate on what will happen if NIFLA either wins or loses. But if NIFLA does win the case, the law will be enjoined and California will not be able to enforce it, Glessner said. If NIFLA loses, similar laws could be passed in the future.

Additionally, a win in this case would mean “the Supreme Court confirms that all Americans are free to speak or not to speak, without coercion from the government,” Harle said.

“The Supreme Court has continually held that the government cannot compel people to speak messages against their consciences, and we are very hopeful we’ll prevail on this basic question of free speech,” she added. 

Madeline Farber is a Reporter for Fox News. You can follow her on Twitter @MaddieFarberUDK.



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Scots should NOT get an independence referendum, say Britons

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MICHAEL GOVE said it is not the right time for Scotland to ask for an independence vote, and Express.co.uk readers agree.

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'Brexit cost a lot of jobs!' Ken Livingstone slams Farage in big debate 'Still a remoaner'

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FORMER London Mayer Ken Livingston insisted Brexit “has cost jobs” as he squabbled with Nigel Farage over Brexit before demanding the British government invest in jobs for British people.

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In Ohio GOP race, local and national politics square off

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WASHINGTON — Is all politics now national?

Or is some of it still local when it comes to congressional races?

We’ll get an answer from today’s GOP special primary in Ohio’s 15th Congressional District to replace Rep. Steve Stivers, R-Ohio, who resigned his seat back in April to run Ohio’s chamber of commerce.

Donald Trump has definitely helped nationalize the contest by endorsing coal lobbyist Mike Carey, and a pro-Trump Super PAC is airing this ad for him: “This August 3rd, vote for the only Trump-endorsed, America-First conservative — Mike Carey for Congress.”

On the other hand, Stivers has endorsed his hand-picked successor, state Rep. Jeff LaRe, and the ex-congressman has been running this TV ad: “I’m proud to support Jeff LaRe for Congress. Jeff LaRe is a former law enforcement officer and a strong conservative leader who has fought to make our communities safer.”

So much attention on this Ohio-15 special has been on whether a Trump-backed candidate could lose another race — after last week’s defeat of the Trump-endorsed Susan Wright in Texas.

But is a more important issue here whether local politics can still trump national politics?

After all, the candidate who defeated Wright down in Texas — Jake Ellzey — was a state representative with endorsements from Rick Perry, Joe Barton and Dan Crenshaw.

Now today’s other Ohio special primary election — in Ohio’s 11th Congressional District between Nina Turner and Shontel Brown — is fully nationalized, with it being the latest battle in the Bernie-Dem Establishment War.

But also pay attention to Ohio-15 to see if local politics and local endorsements still matter.

Looking at the ad spending in Ohio

Today’s high-profile special primary elections have made for busy airwaves outside of Cleveland and Columbus.

In the Dems’ 11th District contest, Turner and Brown (plus their outside backers) have gone virtually punch-for-punch in the ad war. Turner has spent $2.3 million on TV, radio and digital advertising through Tuesday, per AdImpact, with her aligned Democratic Action PAC adding another $250,000. That’s matched by the Brown campaign’s $1.3 million on ads, plus an additional $1.1 million chipped in by the Democratic Majority for Israel PAC.

Things are even more crowded among the Republicans in the 15th District contest. The top spenders are businessman Tom Hwang, a self-funder running as an outsider, and the Protect Freedom PAC, which is backing Ron Hood, the state representative backed by Kentucky GOP Sen. Rand Paul. Both have spent just over $480,000 on advertisements.

Former Rep. Steve Stivers, who has endorsed Jeff LaRe, has actually spent more on ads than any other candidate besides Hwang, with $344,000. Then the Trump-aligned Make America Great Again PAC has spent $305,000 in support of the candidate Trump has endorsed, lobbyist Mike Carey, with Carey’s campaign spending another $265,000. State Sen. Bob Peterson has spent $265,000, the anti-Carey Conservative Outsider PAC has spent another $241,000, LaRe’s campaign has spent $180,000, and former Columbus NAACP President Ruth Edmonds has spent $107,000.

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Data Download: The numbers you need to know today

35: The average number of new, daily pediatric Covid-19 hospitalizations over the last week in Florida.

11 hours: How long New York Gov. Andrew Cuomo faced questions for from the state’s Attorney General’s office during a harassment probe.

110 million: The amount of Covid vaccines the U.S. government has shipped to 65 other countries, per the Wall Street Journal.

35,202,585: The number of confirmed cases of coronavirus in the United States, per the most recent data from NBC News and health officials. (That’s 168,435 more than yesterday morning.)

617,258: The number of deaths in the United States from the virus so far, per the most recent data from NBC News.

346,924,345: The number of vaccine doses administered in the U.S., per the CDC. (That’s 467,676 since yesterday morning.)

49.7 percent: The share of all Americans who are fully vaccinated, per the CDC.

60.6 percent: The share of all American adults at least 18 years of age who are fully vaccinated, per CDC.

70 percent: The share of all American adults at least 18 years of age who have received at least one dose of the vaccine, per the CDC, a mark which President Biden had hoped America would hit by the July 4 holiday.

Talking policy with Benjy: Inflated fears of inflation?

A $550 billion bipartisan infrastructure deal. A $3.5 trillion budget plan. And Republicans are confident they have their top counterargument already lined up: It will all raise prices.

Inflation, after all, is up significantly in 2021. The Fed believes it’s mostly temporary, caused by pandemic-specific disruptions like a computer chip shortage that’s sending car prices soaring. So far, the markets mostly agree with them, but critics argue the economy is overheating from too much stimulus spending.

But there are several important factors that could mitigate inflation risk from the $4 trillion in proposed new spending, NBC’s Benjy Sarlin reports.

First of all, it’s going to be spent much more slowly than the Covid relief bills, over a period of 10 years rather than as immediate relief. Second, unlike Covid spending, Democrats plan to offset the cost by raising taxes on businesses and wealthy individuals. Third, spending on items like better roads, cheaper power and easier commutes could make the economy more productive and thus better able to handle increased demand.

“If the bill is fully paid for, then to a first approximation it would have no impact on inflation,” Jason Furman, a top economic adviser in the Obama administration, told NBC News. “Moreover, if it expanded supply (through infrastructure, more parents working because of childcare, etc.) it might put some downward pressure on inflation.”

Furman is more worried than many of his peers about rising prices, but says little of that has to do with the spending plans, which he calls a “red herring” in the inflation debate that could be checked with higher interest rates if needed

Inflation hawks worry the spending offsets won’t materialize and that the boost to productivity won’t be enough to justify the total spending. The bipartisan infrastructure plan relies on some shaky budget math and the Democratic plan might make its numbers work by funding some features, like the child tax credit, for shorter lengths with the expectation they’ll be extended. The Committee for a Responsible Federal Budget estimates this would boost the cost from $3.5 trillion to over $5 trillion, which may or may not be offset.

“There is a high probability that there won’t be enough taxes collected,” Sung Won Sohn, an economist at Loyola Marymount University, said. “Historically, every president has promised to pay for tax cuts or spending increases, but that never happened.”

The biggest fear is that if inflation goes on too long, people will begin to expect more inflation, creating a kind of self-perpetuating cycle in which businesses raise prices and workers keep bargaining for higher wages in order to get ahead of it.

ICYMI: What else is happening in the world

It’s been two years since the massacre in El Paso.

Some public health experts are questioning the Centers for Disease Control and Prevention’s analysis that led to new masking guidelines.

The GOP chairman of the Maricopa County Board of Supervisors rejected a new subpoena, calling the GOP-led “election audit” an ‘adventure in never-never land.’

The National Labor Relations Board has determined that Amazon violated labor law after workers at its Bessemer, Alabama, warehouse tried to join a union, according to the union.

The Associated Press reports that unaccompanied minors stopped at the U.S-Mexico border by immigration officials hit an all-time high in July.

Axios reports that President Biden and his chief of staff don’t believe pressuring Supreme Court Justice Stephen Breyer to retire would be productive.

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