The Catholic University of America

CUA Law professor Mark Rienzi published an article in National Review looking at a glaring problem in California's argument in NIFLA v. Becerra.  See below. 
 

Did California Misstate the Facts to Justice Ginsburg in NIFLA v. Becerra?

From: National Review
Date: Mar. 22, 2018
Author: Mark Rienzi

Tuesday’s oral argument in NIFLA v. Becerra went quite poorly for those hoping the Court would endorse California’s effort to impose speech restrictions on pro-life pregnancy centers. The Justices took turns pointing out obvious unconstitutional applications of the law, questioning whether California had gerrymandered its law to target pro-lifers, and wondering about the quantum leaps in First Amendment doctrine that would be required to sustain the law.

But the most important exchange — and the one that is indicative of a longer-term problem for the pro-abortion side in a range of speech and religion cases — related to whether the law was even needed in the first place. Supporters of pregnancy-center speech restrictions often claim that the laws are needed because pregnancy centers use deceptive advertising and other tricks to mislead women. California itself had argued that its law was necessary so that pro-life centers do not “attract women into their facilities based on confusion or deception” about their services.

There is a rather glaring problem with this argument. If pregnancy centers engaged in the kind of behaviors used to justify these laws — such as fraud, false advertising, practicing medicine without a license, or impersonating a doctor — then that behavior could be prosecuted using general laws that make such behaviors illegal regardless of the topic of speech. And surely blue-state attorneys general who hope to have a political future in the Democratic party (such as Respondent Xavier Becerra, and his predecessor, now-Senator Kamala Harris) would be eager to bring such cases both to protect women and to please their base. Yet there is no record that they ever even tried, which severely undercuts the claimed need for a special restriction on speakers who talk about pregnancy options.
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Click here to read the full article.

 

Mark Rienzi  

Professor Mark L. Rienzi's
Areas of Expertise

Religious Liberty

Free Speech

Abortion

Fourteenth Amendment

For additional information about our professors' areas of speciality, see the Catholic University Experts page.