It is easy these days to misconstrue the founder’s intent in authoring the Bill of Rights, deliberately obscuring what was stated and intended to purposely lead us to a wrong conclusion.
The ten rights enumerated in the Bill of Rights were included to protect the individual from government coercion; these were the ways that the government could not interfere or mess with the individual. In the First Amendment, for example, the individual’s right to free speech is not to be confused with his or her obligation to speak; individual’s are free to speak without fear of government coercion, but not obliged to say anything at all.
In this case, National Institute of Family and Life Advocates v. Becerra, it is held by the plaintiff that a provider of women’s reproductive counseling is obliged by the First Amendment to inform clients of the opportunity for abortion to terminate their pregnancy. California has recently enforced the “California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act” which requires even the religiously affiliated pro-life centers to inform their clients of the other options outside of what they believe in, in this case abortion. This act is enacted upon both unlicensed and licensed clinics in order to ensure the California population is adequately informed of all possible solutions and care guides regarding their pregnancy. The Institute of Family and Life Advocates and other pro-life clinics, collectively known as NILFA, however, argue that informing and counseling patients with information that they don’t morally align with is unconstitutional, and they are protected by the First Amendment.
The inevitable question is raised: is this act constitutional? The most common answer to this infamous question is whether or not is passes the Lemon Test. The first requirement of the test is regarding the secular purpose of the act, in which this act upholds. The second requirement raises controversy, though, as it inhibits citizens from practicing their religion to the full extent. Additionally, in regards to the third requirement, it implies excessive entanglement between government regulation and religious practice.
Earlier in the year, a case arose regarding a similar precedent. In Missouri, a concerned, anonymous citizen brought to the Supreme Court’s attention that when trying to receive an abortion, she was forced to look at an unwanted ultrasound and read pamphlets that suggested alternative methods for caring for the child outside of termination. This concerned citizen argued for her religious beliefs stating that no outside information should be forced upon her, persuading her to alter her original decision. The ideals that this case deals with are similar to those of the National Institute of Family and Life Advocates v. Becerra. The only difference of interest, however, is bringing up the rights of the unborn child, in which our Nation has not concluded or defined yet.
Recall, that the First Amendment does not oblige any speech, but rather protects all speech. The First Amendment, then, does not place any obligation on the clinic to engage in any speech that they find objectionable, particularly those that do not comply with their religious views. On the contrary, in this case it is the state,California, which creates the obligation to engage in certain patterns of speech which the state authorizes and enforces.
One may only hope that the citizens of California and of the United States of America are informed of all possible options, particularly in a time of need if the case of an unwanted pregnancy were to occur. In this regard, it is vital for clinics to ensure their clients are informed and educated on all possible paths in regards to their child; however, we must then consider the counselor and her or his rights under the First Amendment in providing information to their client. She or he is protected, under the First Amendment of the United States Constitution in practicing her tradition of faith. To the extent that their faith tradition recognizes the sovereignty of the unborn human, they are not obliged in speech or conduct which would violate that sensibility. Plainly stated, the First Amendment protects the counselor from the establishment of any government religion and allows the counselor, then, to practice their own tradition of faith. If one’s faith obliges them to seriously include the unborn person in their counseling activities, they can not then be obliged to outline the alternative routes. In sum, the California Act is not protecting these individuals from anything, it is forcing unwanted speech upon them.
The ten rights enumerated in the Bill of Rights were included to protect the individual from government coercion; these were the ways that the government could not interfere or mess with the individual. In the First Amendment, for example, the individual’s right to free speech is not to be confused with his or her obligation to speak; individual’s are free to speak without fear of government coercion, but not obliged to say anything at all.
In this case, National Institute of Family and Life Advocates v. Becerra, it is held by the plaintiff that a provider of women’s reproductive counseling is obliged by the First Amendment to inform clients of the opportunity for abortion to terminate their pregnancy. California has recently enforced the “California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act” which requires even the religiously affiliated pro-life centers to inform their clients of the other options outside of what they believe in, in this case abortion. This act is enacted upon both unlicensed and licensed clinics in order to ensure the California population is adequately informed of all possible solutions and care guides regarding their pregnancy. The Institute of Family and Life Advocates and other pro-life clinics, collectively known as NILFA, however, argue that informing and counseling patients with information that they don’t morally align with is unconstitutional, and they are protected by the First Amendment.
The inevitable question is raised: is this act constitutional? The most common answer to this infamous question is whether or not is passes the Lemon Test. The first requirement of the test is regarding the secular purpose of the act, in which this act upholds. The second requirement raises controversy, though, as it inhibits citizens from practicing their religion to the full extent. Additionally, in regards to the third requirement, it implies excessive entanglement between government regulation and religious practice.
Earlier in the year, a case arose regarding a similar precedent. In Missouri, a concerned, anonymous citizen brought to the Supreme Court’s attention that when trying to receive an abortion, she was forced to look at an unwanted ultrasound and read pamphlets that suggested alternative methods for caring for the child outside of termination. This concerned citizen argued for her religious beliefs stating that no outside information should be forced upon her, persuading her to alter her original decision. The ideals that this case deals with are similar to those of the National Institute of Family and Life Advocates v. Becerra. The only difference of interest, however, is bringing up the rights of the unborn child, in which our Nation has not concluded or defined yet.
Recall, that the First Amendment does not oblige any speech, but rather protects all speech. The First Amendment, then, does not place any obligation on the clinic to engage in any speech that they find objectionable, particularly those that do not comply with their religious views. On the contrary, in this case it is the state,California, which creates the obligation to engage in certain patterns of speech which the state authorizes and enforces.
One may only hope that the citizens of California and of the United States of America are informed of all possible options, particularly in a time of need if the case of an unwanted pregnancy were to occur. In this regard, it is vital for clinics to ensure their clients are informed and educated on all possible paths in regards to their child; however, we must then consider the counselor and her or his rights under the First Amendment in providing information to their client. She or he is protected, under the First Amendment of the United States Constitution in practicing her tradition of faith. To the extent that their faith tradition recognizes the sovereignty of the unborn human, they are not obliged in speech or conduct which would violate that sensibility. Plainly stated, the First Amendment protects the counselor from the establishment of any government religion and allows the counselor, then, to practice their own tradition of faith. If one’s faith obliges them to seriously include the unborn person in their counseling activities, they can not then be obliged to outline the alternative routes. In sum, the California Act is not protecting these individuals from anything, it is forcing unwanted speech upon them.
8 comments:
While I think that medical professionals have the obligation to inform patients of their procedural options for their medical safety, I do not think that pro-life pregnancy clinics should be legally required to promote abortions at Planned Parenthood since this speech infringes on the religious beliefs of the organization as a whole. An abortion is a personal option for pregnant women who choose to undergo this procedure rather than a safety concern that doctors have a medical obligation to recommend. By forcing speech onto a religiously motivated group, the law is violating the free-exercise clause and the right to free speech in the Constitution. I would imagine that if a woman was anticipating getting an abortion she would not go to a pro-life clinic in the first place, so forcing these medical professionals to promote abortions when they do not perform them at the clinic due to religious beliefs is not constitutional.
I think Katarina made a very good point in saying that women who anticipate getting an abortion would most likely not be going to a religious reproductive counseling center to seek advice. The pro-life centers, in this case, would not perform abortions and are not inclined to recommend abortions to their religious customers. This policy elicits the question of why this law included private, religious counseling centers who's fundamental beliefs are pro-life, and conceivably, the customers of the center share the same views. I don't have a good answer to that question, which leads me to believe the burden placed on the centers, and employees of the centers, is far greater than the general welfare interest. A policy that would be much less burdensome and not inhibit any sort of 1st Amendment queries would be a mandate that all publicly funded counseling centers inform their patients of abortions. This would 1) be within the governments purview and 2) would not infringe upon the free exercise of religion. This policy, therefore, should be unconstitutional because it infringes on the institutional beliefs of private, religious organizations and pro-life individuals and their rights to free exercise.
I agree with Katarina that requiring the pro-life organization to promote abortions is against their own rights. I think that as long as the party who goes to the clinic is informed of ALL their options and the ways to go about that which might include telling them where the Planned Parenthood clinic might be. This allows the women to be informed and the clinic to promote what they think is best for the patient. As Will said this thought process does not inhibit either party will the policy does.
I don't think informing the patients of their options is necessarily endorsing it. I think that when going to a doctor, it is important to know all of your options to make an informed decision. I think pro-life clinics having to say that abortion is a viable option, which it legally is, is not unconstitutional. This act does not force them to endorse this decision, from my understanding of it, or to physically act against their beliefs. They just have to mention that these patients could seek out an abortion if it was what they wanted to do. I understand that this goes against the beliefs of the pro-life clinics, but if there are no Planned Parenthoods or other clinics nearby for these check ups, I think it is reasonable that all clinics be held to the same standard of care and tell all patients what medical choices they have. No one is forcing these clinics to carry out abortions, but just to tell women what their options are and educate and explain those options to them from a medical standpoint, which I believe is a standard of care.
I'd like to respectfully disagree with you all. Considering the precedent set by Roe V. Wade and the succeeding court cases would indicate states have the right to regulate abortion as long as it is "reasonably related to the preservations and protection of maternal health." (410 US 113). The justices of Roe V. Wade wrote this into their decision in order to allow states to regulate the practice of abortion as the States saw fit. The Majority opinion stated the states have a compelling interest in protecting the well being of the mother. Furthermore, a women's right to abortion was explicitly confirmed in the decision of Planned Parenthood of Southeastern Pennsylvania v. Casey and this right could not be unduly interfered with by the state. In addition many previous court cases have upheld a state's right to require 24 hour waiting periods and forced viewings of an ultrasound of the fetus. The 5th U.S. Circuit Court of Appeals ruled these laws did not violate the first amendment rights of patients or doctors. The legal precedent is clear, California has a compelling interest to ensure women are provided with the best care possible. Finally, I believe the Sherbert test would be a more appropriate legal precedent to apply to this case. While this law may interfere with clinic's abilities to completely freely practice their religion, there are no less-restrictive means to ensure all women are provided with adequate care. In some cases a pro-life clinic may the the only family planning location for miles. If the patients are not informed of all their options there, then they may never know the full scope of potential care.
Like Will, I too am very curious as to why the law was passed and the motivation behind the it. I agree with the conclusion reached by Ciara that this law places an unconstitutional burden on the medical professionals at the Pro-life facility. I personally struggle to understand why a doctor should be coerced by the State to recommend treatment that they both find morally unacceptable and would never under normal circumstances suggest. The law itself seems to jeopardize all efforts by the Pro-life center to discourage abortions.
I have to agree, in part, with what Josh and Abby stated in their comments. There is a fine line between notifying or informing a person about potential paths they can take in their decision making process, and forcing them to endorse those pathways. The people who are going to the pro-life clinic in the first place probably did not go there if they wanted an abortion, but they may have been curious to hear there perspective on the manner. The state has the right to enforce regulations in the education of its citizens, but cannot force them to make the decision they want them to make. The act of abortion may be against the clinics beliefs, but they can express that to the patient after expressing the fact that the patient has the opportunity to take the avenue in which they see fit.
I agree with many of the previous comments stating that if a women were seeking an abortion, it is unlikely and would make little sense that they go to a religiously affiliated pro-life clinic. I think it is safe to say that women know that abortion is an option, and therefore if an individual decides that they want an abortion, they should find a clinic without religious affiliation. While I think that clinics should provide information about other clinics that do perform abortions if this is what the patient wants, the religiously affiliated clinics should not be forced to promote abortion if it goes against their religious beliefs.
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