The Robert's Court Destructive March To Infamy

The Roberts' Court continued its long, destructive march into infamy today, capping off a string of unprincipled, ideological decisions probably not seen since the end of Reconstruction. In yet another 5-4 decision with the deciding vote provided by Neil Gorsuch filling the seat that belongs to Merrick Garland, the Court once again overruled multiple lower court decisions and declared that a California law requiring that crisis pregnancy centers post certain informational messages was a violation of those centers' First Amendment rights.

The California law requires licensed facilities to post a message that the state of California provides free or low cost pregnancy services, including abortion, and provide a phone number to access those services. Unlicensed facilities must post a message that they are unlicensed to provide medical services. The conservative majority, in an opinion written by Justice Thomas, ruled that the licensed facilities had their rights violated because the informational messages were promoting state services that were contrary to the centers' beliefs and therefore is content-based forced speech. Unlicensed facilities need not post the required message, which was in thirteen languages, because it was an undue burden as well as a remedy for what the majority believes is a "purely hypothetical" problem. I don't know about you but I would want to know whether the quasi-medical facility I was entering was actually licensed by the state.

Now you would think that if requiring a message that the state provides low-cost pregnancy services is a violation of the First Amendment, then all those Republican state laws requiring abortion doctors to provide a whole litany of alternative services would also be unconstitutional. But Thomas has that attack covered by distinguishing between speech compelled by the actual practice of medicine and the passive messages here. In other words, states can compel forced speech for abortion doctors but cannot require unlicensed crisis pregnancy centers to post messages that inform patients they are unlicensed. This is not law, but ideology.

As Justice Breyer points out in his dissent, this divination of the difference between regulating professional speech and simple disclosure requirements puts virtually all government regulation at potential risk. Says Breyer, "Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals 'to speak a particular message'."

The Court will thankfully end its session tomorrow with the final destruction of public sector unions in the Janus v. AFSCME case. At this point, Gorsuch is almost certain to once again cast the deciding vote and allow nonunion public sector employees to basically freeload off the union's collective bargaining and workplace grievance capabilities. Without being able to charge those nonunion members fees for those services, publican sector unions will be further weakened as will their ability to provide the very services those nonunion members receive.

The decisions by the Roberts' Court this year have been destructive and distressing enough. And with the potential retirement of Justice Kennedy, it is likely to get worse long before it ever gets better.