The United States’ Supreme Court recently struck down a California law that imposed on the freedom of pregnancy care centers. I wrote about the case previously here. In brief, the law required pregnancy care centers to include a notice in all their advertisements and at their premises informing women of the availability of state-funded abortions. This law was overturned, affirming the overreach of this law and the importance of informed consent in the medical context.

What the decision said

The five-judge majority decided that this law infringed freedom to speech. Just because this infringement took place in a professional or regulated context did not lessen the protection accorded by this right. The majority recognized the importance of preventing government control over the messages of doctors, affirming the importance of conscience rights for physicians.

The judges also pointed out flaws in the law itself. California claimed that this law was about informing low-income women about health services offered by the state. However, the required notice was “wildly underinclusive” in that it basically only applied to pro-life pregnancy centers, excluding other types of clinics that also serve low-income women. If informing low-income women about health services was California’s aim, the government could advertise without imposing this burden on pregnancy care centers. The ruling concluded by noting that this decision is not a blanket protection against all disclosure requirements for pregnancy care centers, but legally valid requirements will need to be “better supported or less burdensome” than the law in question.

What’s the difference between abortion & pregnancy care?

The point I want to spend time on is the comparison of this California law with informed consent laws, which both the U.S. and Canada uphold in some form. These laws require physicians to ensure women are fully informed as to what to expect when they request an abortion. This may require the physician to explain the gestational age of the fetus, what the abortion procedure is actually like, potential side effects, or about the availability of adoption as an option. The laws requiring informed consent have been upheld by the United States Supreme Court.

As the four-judge dissent in the pregnancy care centre case argued: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”

The first problem with this comparison is, as the majority pointed out, the informed consent laws relate to a specific procedure – in this case abortion – not to a doctor’s practice generally. This California law attempted to dictate disclosure even before a medical counselor met a pregnant woman, let alone provided her any service or offered any advice. It would be comparable to doctors being required to have notices displayed in their office saying heart bypass surgeries are available. It’s a fact, but hardly a necessary one to display prominently.

This leads to the second and more serious problem with this argument. The dissent suggests the notice was necessary because of the risks associated with pregnancy. While they admit there are risks associated with abortion, they argue that “‘childbirth is 14 times more likely than abortion to result in’ the woman’s death.”

This blatantly ignores that abortion is considerably more than 14 times more likely than childbirth to result in the pre-born child’s death.

Pro-abortion advocates attempt to paint abortion as healthcare – healthcare that is maybe even safer than pregnancy and childbirth. Healthcare, by definition, attempts to restore or preserve health. This means abortion advocates end up painting pregnancy as a lack of health, or a threat to women’s health.

This view of pregnancy does not respect or value the pre-born child and their humanity, and it also denigrates women. Nancy Pearcey, in her book Love Thy Body, addresses this attitude: “It does not treat women’s ability to gestate and bear children as a wondrous and awesome capacity but as a liability, a disadvantage, a disability. It does not value and protect women in their childbearing capacity but seeks to suppress women’s bodily function using toxic chemicals and deadly devices to violently destroy the life inside her.”

Pregnancy is not a disease. The pre-born child is not a tumor. Rather, pregnancy marks the wondrous beginning of a human being’s life. Thankfully, pregnancy care centres with this positive view of women and pregnancy are able to continue their good work in California with clear consciences.

This post is written by Tabitha Ewert, legal counsel for We Need a Law.